EXHIBIT 10.3
TRANCHE C CREDIT AGREEMENT
dated as of July 2, 1999,
as Amended and Restated as of July 12, 1999,
among
TEREX CORPORATION,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
and
as Collateral Agent
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Lead Arranger,
and
DRESDNER KLEINWORT ▇▇▇▇▇▇,
as Co-Lead Arranger
[CS&M Ref No. 5865-043]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.......................................... 1
SECTION 1.02. Terms Generally........................................ 23
ARTICLE II
The Credits
SECTION 2.01. Commitments............................................ 23
SECTION 2.02. Loans.................................................. 23
SECTION 2.03. Borrowing Procedure.................................... 24
SECTION 2.04. Evidence of Debt; Repayment of Loans................... 25
SECTION 2.05. Fees................................................... 25
SECTION 2.06. Interest on Loans...................................... 26
SECTION 2.07. Default Interest....................................... 26
SECTION 2.08. Alternate Rate of Interest............................. 26
SECTION 2.09. Termination and Reduction of Commitments............... 27
SECTION 2.10. Conversion and Continuation of Borrowings.............. 27
SECTION 2.11. Repayment of Term Borrowings........................... 28
SECTION 2.12. Prepayment............................................. 29
SECTION 2.13. Mandatory Prepayments.................................. 30
SECTION 2.14. Reserve Requirements; Change in Circumstances.......... 32
SECTION 2.15. Change in Legality..................................... 33
SECTION 2.16. Indemnity.............................................. 33
SECTION 2.17. Pro Rata Treatment..................................... 34
SECTION 2.18. Sharing of Setoffs..................................... 34
SECTION 2.19. Payments............................................... 34
SECTION 2.20. Taxes.................................................. 35
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate................................... 36
SECTION 2.22. Pro Rata Treatment of Loans and Existing Term Loans.... 37
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers................................... 38
SECTION 3.02. Authorization.......................................... 38
SECTION 3.03. Enforceability......................................... 38
SECTION 3.04. Governmental Approvals................................. 38
SECTION 3.05. Financial Statements................................... 39
SECTION 3.06. No Material Adverse Change............................. 39
SECTION 3.07. Title to Properties; Possession Under Leases........... 39
SECTION 3.08. Subsidiaries........................................... 40
SECTION 3.09. Litigation; Compliance with Laws....................... 40
SECTION 3.10. Agreements............................................. 40
SECTION 3.11. Federal Reserve Regulations............................ 41
SECTION 3.12. Investment Company Act; Public Utility Holding 41
Company Act.........................................
SECTION 3.13. Use of Proceeds........................................ 41
SECTION 3.14. Tax Returns............................................ 41
SECTION 3.15. No Material Misstatements.............................. 41
SECTION 3.16. Employee Benefit Plans................................. 41
SECTION 3.17. Environmental Matters.................................. 42
SECTION 3.18. Insurance.............................................. 43
SECTION 3.19. Security Documents..................................... 43
SECTION 3.20. Location of Real Property and Leased Premises.......... 44
SECTION 3.21. Labor Matters.......................................... 44
SECTION 3.22. Solvency............................................... 44
SECTION 3.23. Year 2000 Matters...................................... 44
SECTION 3.24. Offer Documents........................................ 44
ARTICLE IV
Conditions of Lending
SECTION 4.01. Conditions Precedent to Effectiveness.................. 45
SECTION 4.02. Conditions Precedent to Each Acquisition Borrowing..... 46
SECTION 4.03. Conditions Precedent to Other Borrowings............... 46
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties................... 47
SECTION 5.02. Insurance.............................................. 48
SECTION 5.03. Obligations and Taxes.................................. 49
SECTION 5.04. Financial Statements, Reports, etc..................... 50
SECTION 5.05. Litigation and Other Notices........................... 51
SECTION 5.06. Employee Benefits...................................... 51
SECTION 5.07. Maintaining Records; Access to Properties
and Inspections..................................... 51
SECTION 5.08. Use of Proceeds........................................ 51
SECTION 5.09. Compliance with Environmental Laws..................... 51
SECTION 5.10. Preparation of Environmental Reports................... 52
SECTION 5.11. Further Assurances..................................... 52
SECTION 5.12. Interest Rate Protection Agreements.................... 53
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness........................................... 53
SECTION 6.02. Liens.................................................. 55
SECTION 6.03. Sale and Lease-Back Transactions....................... 56
SECTION 6.04. Investments, Loans and Advances........................ 56
SECTION 6.05. Mergers, Consolidations, Sales of Assets
and Acquisitions................................... 58
SECTION 6.06. Dividends and Distributions; Restrictions on
Ability of Subsidiaries to Pay Dividends........... 58
SECTION 6.07. Transactions with Affiliates........................... 59
SECTION 6.08. Business of Borrower and Subsidiaries.................. 59
SECTION 6.09. Other Indebtedness and Agreements...................... 59
SECTION 6.10. Capital Expenditures................................... 60
SECTION 6.11. Consolidated Leverage Ratio............................ 60
SECTION 6.12. Consolidated Interest Coverage Ratio................... 61
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio............... 61
SECTION 6.14. Fiscal Year............................................ 61
ARTICLE VII
Offer Covenants
SECTION 7.01. Offer Affirmative Covenants............................ 61
SECTION 7.02. Offer Negative Covenants............................... 62
ARTICLE VIII
Events of Default
SECTION 8.01. Events of Default...................................... 63
SECTION 8.02. Acceleration........................................... 64
ARTICLE IX
The Administrative Agent and the Collateral Agent 65
ARTICLE X
Miscellaneous
SECTION 10.01. Notices................................................ 68
SECTION 10.02. Survival of Agreement.................................. 68
SECTION 10.03. Binding Effect......................................... 69
SECTION 10.04. Successors and Assigns................................. 69
SECTION 10.05. Expenses; Indemnity.................................... 71
SECTION 10.06. Right of Setoff........................................ 72
SECTION 10.07. Applicable Law......................................... 72
SECTION 10.08. Waivers; Amendment..................................... 72
SECTION 10.09. Interest Rate Limitation............................... 73
SECTION 10.10. Entire Agreement....................................... 73
SECTION 10.11. Waiver of Jury Trial................................... 73
SECTION 10.12. Severability........................................... 74
SECTION 10.13. Counterparts........................................... 74
SECTION 10.14. Headings............................................... 74
SECTION 10.15. Jurisdiction; Consent to Service of Process............ 75
SECTION 10.16. Confidentiality........................................ 75
SECTION 10.17. Rights of Existing Lenders............................. 75
SECTION 10.18. Designated Senior Indebtedness......................... 75
SCHEDULES
Schedule 1.01(a) Offer Conditions Precedent
Schedule 1.01(b) Subsidiary Guarantors
Schedule 1.01(c) Mortgaged Properties
Schedule 1.01(d) Existing Mortgages
Schedule 2.01 Lenders; Commitments
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.18 Insurance
Schedule 3.20(a) Owned Real Property
Schedule 3.20(b) Leased Real Property
Schedule 3.24(a) Press Release
Schedule 3.24(b) Offer Documents
EXHIBITS
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Opinion of General Counsel
TRANCHE C CREDIT AGREEMENT dated as
of July 2, 1999, as amended and restated as
of July 12, 1999 (this "Agreement"), among
TEREX CORPORATION, a Delaware corporation,
the LENDERS party hereto and CREDIT SUISSE
FIRST BOSTON, a bank organized under the
laws of Switzerland and acting through its
New York branch, as administrative agent and
collateral agent for the Lenders.
New Terex Holdings UK Limited, a limited company incorporated under the
laws of England ("Bidco") and a wholly owned subsidiary of Terex Corporation, a
Delaware corporation (the "Borrower"), intends to acquire (the "Powerscreen
Acquisition") all of the outstanding share capital (the "Shares") of Powerscreen
International plc, a public limited company incorporated under the laws of
England ("Powerscreen"), pursuant to a recommended cash offer (the "Offer") for
all of the Shares at a price of 195 ▇▇▇▇▇ per Share.
In connection with the Offer, the Borrower has requested that the
Lenders extend credit in the form of Loans (such term, and each other
capitalized term used but not defined in this preamble, having the definition
assigned to it in Article I) to be made during the Availability Period in an
aggregate principal amount not in excess of $325,000,000. The proceeds of the
Loans will be contributed or advanced to Bidco and will be used by Bidco solely
(a) to finance the acquisition of Shares (whether pursuant to the Offer, through
open market purchases made in accordance with applicable law following the
Unconditional Date or pursuant to the provisions of Section 428 et. seq. of the
U.K. Companies Act of 1985), (b) to finance proposals to holders of options over
Shares in accordance with Rule 15 of the City Code, (c) to repay existing net
indebtedness of Powerscreen and (d) to pay related fees and expenses. To the
extent not used pursuant to clauses (a) through (d) above, the proceeds of the
Loans may be used by the Borrower for general corporate purposes as otherwise
permitted herein; provided, however, that the proceeds from all Loans used for
such general corporate purposes shall not exceed $50,000,000 in the aggregate.
The Lenders are willing to extend such credit to the Borrower on the
terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
5
"Acquired Indebtedness" shall mean Indebtedness of a person or any of its
subsidiaries (the "Acquired Person") (a) existing at the time such person
becomes a Subsidiary of the Borrower or at the time it merges or consolidates
with the Borrower or any of its Subsidiaries or (b) assumed in connection with
the acquisition of assets from such person; provided in each case that (i) such
Indebtedness was not created in contemplation of such acquisition, merger or
consolidation and (ii) such acquisition, merger or consolidation is otherwise
permitted under this Agreement.
"Acquired Person" shall have the meaning assigned to such term in the
definition of the term "Acquired Indebtedness".
"Additional L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Additional Letters of Credit
denominated in dollars at such time, (b) the dollar equivalent of the aggregate
undrawn amount of all outstanding Additional Letters of Credit denominated in
any currency other than dollars at such time, (c) the aggregate principal amount
of all disbursements in respect of Additional Letters of Credit denominated in
dollars that have not yet been reimbursed at such time and (d) the dollar
equivalent of the aggregate principal amount of all disbursements in respect of
Additional Letters of Credit denominated in any currency other than dollars that
have not yet been reimbursed at such time.
"Additional L/C Facility" shall mean a credit facility, and any refinancing
or replacement of such facility, entered into by the Borrower, one or more of
the Subsidiary Borrowers and one or more Lenders or Existing Lenders that shall
have as its sole purpose the issuance of letters of credit to be used by the
Borrower and one or more of the Subsidiary Borrowers in the ordinary course of
business and that shall require prompt reimbursement upon any funding of any
such letter of credit.
"Additional L/C Issuing Bank" shall mean any Lender or Existing Lender that
shall issue Additional Letters of Credit pursuant to the Additional L/C
Facility.
"Additional Letter of Credit" shall mean each letter of credit issued
pursuant to the Additional L/C Facility.
"Additional Subordinated Notes" shall mean subordinated notes issued from
time to time by the Borrower, or assumed in connection with a Permitted
Acquisition; provided that (a) except in the case of Additional Subordinated
Notes assumed in connection with a Permitted Acquisition, the Net Cash Proceeds
thereof are used either (i) to finance one or more Permitted Acquisitions or
(ii) to prepay Loans in accordance with Section 2.13(c), (b) such subordinated
notes do not require any scheduled payment of principal prior to a date that is
12 months after the Maturity Date and (c) the subordination provisions and other
non-pricing terms and conditions of such subordinated notes are no less
favorable to the Loan Parties and the Lenders than the analogous provisions of
the Senior Subordinated Notes.
"Administrative Agent" shall mean CSFB in its capacity as administrative
agent under this Agreement unless and until a successor agent is appointed
pursuant to Article IX.
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the LIBO Rate in effect for such
Interest Period multiplied by Statutory Reserves.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agents" shall have the meaning assigned to such term in Article IX.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. 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 of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence 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 in the Prime Rate or the Federal Funds Effective Rate,
respectively. The term "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, 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 that is a Business Day,
the average of the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurocurrency Loan or ABR Loan, as the case may be, the applicable percentage set
forth below under the caption "Eurocurrency Loan Spread" or "ABR Loan Spread",
as the case may be, based upon the Consolidated Leverage Ratio as of the
relevant date of determination; provided that, until the first day of the month
immediately following the date that is 90 days after the initial Borrowing, the
Applicable Percentage shall be deemed to be in Category 2:
--------------------------------------------------------------------------------
Consolidated ABR Loan
Leverage Ratio Eurocurrency Loan Spread Spread
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Category 1
Greater than or equal
to 5.25 to 1.00 3.25% 2.25%
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--------------------------------------------------------------------------------
Category 2
Greater than or equal to
4.50 to 1.00 but less
than 5.25 to 1.00 3.00% 2.00%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Category 3
Greater than or equal to
4.00 to 1.00 but less
than 4.50 to 1.00 2.75% 1.75%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Category 4
Greater than or equal to
3.50 to 1.00 but less
than 4.00 to 1.00 2.75% 1.75%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Category 5
Greater than or equal to
3.00 to 1.00 but less
than 3.50 to 1.00 2.75% 1.75%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Category 6
Less than 3.00 to 1.00 2.50% 1.50%
--------------------------------------------------------------------------------
Except as provided for in the proviso to the preceding paragraph, each change in
the Applicable Percentage resulting from a change in the Consolidated Leverage
Ratio shall be effective with respect to all Loans on the date of delivery to
the Administrative Agent of the financial statements and certificates required
by Section 5.04(a) or (b) based upon the Consolidated Leverage Ratio as of the
end of the most recent fiscal quarter included in such financial statements so
delivered, and shall remain in effect until the date immediately preceding the
next date of delivery of such financial statements and certificates indicating
another such change. Notwithstanding the foregoing, at any time after the
occurrence and during the continuance of an Event of Default, the Consolidated
Leverage Ratio shall be deemed to be in Category 1 for purposes of determining
the Applicable Percentage.
"Approved Fund" shall have the meaning assigned to such term in Section
10.04(b).
"Arrangement and Administrative Fees" shall have the meaning assigned to
such term in Section 2.05(b).
"Arrangers" shall mean Credit Suisse First Boston Corporation and Dresdner
Kleinwort ▇▇▇▇▇▇.
"Asset Sale" shall mean the sale, transfer or other disposition (by way of
merger or otherwise and including by way of a Sale and Leaseback) by the
Borrower or any Subsidiary to any person other than the Borrower or any
Subsidiary Guarantor of (a) any capital stock of any Subsidiary (other than
directors' qualifying shares) or (b) any other assets of the Borrower or any
Subsidiary (other than inventory, excess, damaged, obsolete or worn out assets,
scrap, Permitted Investments, accounts receivable and/or letters of credit
supporting accounts receivable issued to the Borrower or any Subsidiary, in each
case disposed of in the ordinary course of business and, in the case of accounts
receivable, consistent with past practice); provided that any asset sale or
series of related asset sales described in clause (b) above having a value not
in excess of $1,000,000 shall be deemed not to be an "Asset Sale" for purposes
of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Availability Period" shall mean the period from and including the
Effective Date to and including the Termination Date.
"Bidco" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit C.
"Breakage Event" shall have the meaning assigned to such term in Section
2.16.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurocurrency Loan, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty" shall have the meaning assigned to such term in the Mortgages.
"Casualty Proceeds" shall have the meaning assigned to such term in the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934
as in effect on the Effective Date) shall own directly or indirectly,
beneficially or of record, shares representing more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; (b) a majority of the seats (other than vacant seats) on the board
of directors of the Borrower shall at any time be occupied by persons who were
neither (i) nominated by the board of directors of the Borrower, nor (ii)
appointed by directors so nominated; (c) any change in control (or similar
event, however denominated) with respect to the Borrower or any of its
Subsidiaries shall occur under and as defined in any indenture or agreement in
respect of Indebtedness in an outstanding principal amount in excess of
$5,000,000 to which the Borrower or any of its Subsidiaries is a party; or (d)
any person or group shall otherwise directly or indirectly Control the Borrower.
"Charges" shall have the meaning assigned to such term in Section 10.09.
"City Code" shall mean The City Code on Takeovers and Mergers (U.K.).
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Collateral Agent" shall mean CSFB in its capacity as collateral agent
under this Agreement unless and until a successor agent is appointed pursuant to
Article IX.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender to make Loans hereunder as set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its Commitment,
as applicable, as the same may be (a) reduced from time to time pursuant to
Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04.
"Commitment Fees" shall have the meaning assigned to such term in Section
2.05(a).
"Condemnation" shall have the meaning assigned to such term in the
Mortgages .
"Condemnation Proceeds" shall have the meaning assigned to such term in the
Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated June 1999.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability) by the Borrower or any of its Subsidiaries during such
period that, in accordance with GAAP, are or should be included in "additions to
property, plant and equipment" or similar items reflected in the consolidated
statement of cash flows of the Borrower and the Subsidiaries for such period
(including the amount of assets leased by incurring any Capital Lease
Obligation); provided that expenditures for Permitted Acquisitions shall not
constitute Consolidated Capital Expenditures.
"Consolidated Current Assets" shall mean, as of any date of determination,
the total assets that would properly be classified as current assets (other than
cash and cash equivalents) of the Borrower and its Subsidiaries as of such date,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, as of any date of
determination, the total liabilities (other than, without duplication, (a) the
current portion of long-term Indebtedness and (b) outstanding Existing Revolver
Loans) that would properly be classified as current liabilities of the Borrower
and its Subsidiaries as of such date, determined on a consolidated basis in
accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period, plus, without duplication and to the extent deducted from
revenues in determining Consolidated Net Income for such period, the sum of (a)
the aggregate amount of Consolidated Interest Expense for such period, (b) the
aggregate amount of letter of credit fees paid during such period, (c) the
aggregate amount of income and franchise tax expense for such period, (d) all
amounts attributable to depreciation and amortization for such period, (e) all
non-recurring non-cash charges during such period and (f) all non-cash
adjustments made to translate foreign assets and liabilities for changes in
foreign exchange rates made in accordance with FASB No. 52, and minus, without
duplication and to the extent added to revenues in determining Consolidated Net
Income for such period, (i) all non-recurring non-cash gains during such period
and (ii) all non-cash adjustments made to translate foreign assets and
liabilities for changes in foreign exchange rates made in accordance with FASB
No. 52, all as determined on a consolidated basis with respect to the Borrower
and the Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) the sum, without
duplication, of (i) Consolidated Interest Expense for such period; (ii) income
or franchise taxes paid in cash during such period; (iii) scheduled and
voluntary payments of principal with respect to all Indebtedness (including the
principal portion of Capital Lease Obligations but excluding payments for
inventory to be sold in the ordinary course of business) of the Borrower and its
Subsidiaries on a consolidated basis during such period (other than repayments
of Indebtedness with the proceeds of other Indebtedness permitted to be incurred
hereunder or equity); (iv) payments permitted pursuant to Section 6.06 made in
cash during such period; and (v) Consolidated Capital Expenditures made in cash
during such period.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" of the Borrower and its Subsidiaries shall
mean, for any period, interest expense of the Borrower and its Subsidiaries for
such period, net of interest income, included in the determination of
Consolidated Net Income. For purposes of the foregoing, interest expense shall
be determined after giving effect to any net payments made or received by the
Borrower and its Subsidiaries under Interest Rate Protection Agreements.
"Consolidated Leverage Ratio" shall mean, as of any date of determination,
the ratio of (a) Total Debt on such date to (b) the sum of (i) Consolidated
EBITDA for the most recent period of four consecutive fiscal quarters ended on
or prior to such date and (ii) the Pro Forma Acquisition EBITDA of all Acquired
Persons acquired during such period of four consecutive fiscal quarters. For
purposes of calculating the Consolidated Leverage Ratio as of any date, if any
portion of the Total Debt outstanding on such date is denominated in a currency
other than dollars, then the portion, if any, of Consolidated EBITDA or Pro
Forma Acquisition EBITDA during the period of four consecutive fiscal quarters
ending on or prior to such date and denominated in any such other currency shall
be translated to dollars using the same exchange rate as is used to translate
such portion of the Total Debt denominated in such other currency.
"Consolidated Net Income" shall mean, for any period, the sum of net income
(or loss) for such period of the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with GAAP, but excluding: (a) the income (or
loss) of any person accrued prior to the date it became a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower or such person's
assets are acquired by the Borrower or any of its Subsidiaries; (b)
non-recurring gains (or losses) during such period; (c) extraordinary gains (or
losses), as defined under GAAP during such period; and (d) the income of any
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by the Subsidiary of that income is prohibited by operation of the
terms of its charter or any agreement, instrument, judgment, decree, statute,
rule or governmental regulation applicable to the Subsidiary.
"Consolidated Senior Secured Leverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Total Senior Secured Debt on such date to (b)
the sum of (i) Consolidated EBITDA for the most recent period of four
consecutive fiscal quarters ended on or prior to such date and (ii) the Pro
Forma Acquisition EBITDA of all Acquired Persons acquired during such period of
four consecutive fiscal quarters. For purposes of calculating the Consolidated
Senior Secured Leverage Ratio as of any date, if any portion of the Total Senior
Secured Debt outstanding on such date is denominated in a currency other than
dollars, then the portion, if any, of Consolidated EBITDA or Pro Forma
Acquisition EBITDA during the period of four consecutive fiscal quarters ending
on or prior to such date and denominated in any such other currency shall be
translated to dollars using the same exchange rate as is used to translate such
portion of the Total Debt denominated in such other currency.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"CSFB" shall mean Credit Suisse First Boston, a bank organized under the
laws of Switzerland, acting through its New York branch.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Effective Date" shall mean July 2, 1999.
"Engagement Letter" shall mean the Engagement Letter dated June 11, 1999,
among the Borrower and the Arrangers.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation, notice
of violation, claim, demand, order, directive, cost recovery action or other
cause of action by, or on behalf of, any Governmental Authority or any person
for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. ▇▇.▇▇. 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. ▇▇.▇▇. 6901 et seq., the Federal Water Pollution Control Act, as amended
by the Clean Water Act of 1977, 33 U.S.C. ▇▇.▇▇. 1251 et seq., the Clean Air Act
of 1970, as amended 42 U.S.C. ▇▇.▇▇. 7401 et seq., the Toxic Substances Control
Act of 1976, 15 U.S.C. ▇▇.▇▇. 2601 et seq., the Occupational Safety and Health
Act of 1970, as amended, 29 U.S.C. ▇▇.▇▇. 651 et seq., the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. ▇▇.▇▇. 11001 et seq., the
Safe Drinking Water Act of 1974, as amended, 42 U.S.C. ▇▇.▇▇. 300(f) et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. ▇▇.▇▇. 5101 et seq., and
any similar or implementing state or local law, and all amendments or
regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Issuance" shall mean any issuance or sale by the Borrower or any
Subsidiary of any shares of capital stock or other equity securities of any such
person or any obligations convertible into or exchangeable for, or giving any
person a right, option or warrant to acquire such securities or such convertible
or exchangeable obligations, except in each case for (a) any issuance or sale to
the Borrower or any Subsidiary, (b) any issuance of directors' qualifying
shares, (c) sales or issuances of common stock to management or employees of the
Borrower or any Subsidiary under any employee stock option plan, stock purchase
plan, retirement plan, deferred compensation plan or other employee benefit plan
in existence from time to time to the extent that (i) the proceeds from all
sales and issuances described in this clause (c) shall not exceed in the
aggregate $1,000,000 in any fiscal year of the Borrower and (ii) the shares of
common stock issued pursuant to this clause (c) shall not exceed 10% of the
common stock of the Borrower or such Subsidiary, as applicable.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (e) the incurrence of any liability under Title IV of ERISA
with respect to the termination of any Plan or the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (f) the receipt by the Borrower or any ERISA Affiliate from
the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g)
the receipt by the Borrower or any ERISA Affiliate of any notice concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the occurrence of a "prohibited transaction" with respect
to which the Borrower or any of its Subsidiaries is a "disqualified person"
(within the meaning of Section 4975 of the Code) or with respect to which the
Borrower or any such Subsidiary could otherwise be liable; (i) any other event
or condition with respect to a Plan or Multiemployer Plan that could reasonably
be expected to result in liability of the Borrower; and (j) any Foreign Benefit
Event.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of Eurocurrency
Loans.
"Eurocurrency Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in Section
8.01.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) extraordinary or non-recurring cash receipts of the Borrower
and its Subsidiaries, if any, during such fiscal year and not included in
Consolidated EBITDA and (iii) reductions to non-cash working capital of the
Borrower and its Subsidiaries for such fiscal year (i.e., the decrease, if any,
in Consolidated Current Assets minus Consolidated Current Liabilities from the
beginning to the end of such fiscal year), over (b) the sum, without
duplication, of (i) the amount of any cash income taxes payable by the Borrower
and its Subsidiaries with respect to such fiscal year, (ii) cash interest paid
by the Borrower and its Subsidiaries during such fiscal year, (iii) Consolidated
Capital Expenditures committed or made in cash in accordance with Section 6.10
during such fiscal year (and not deducted from Excess Cash Flow in any prior
year), (iv) scheduled principal repayments of Indebtedness made by the Borrower
and its Subsidiaries during such fiscal year, (v) optional and mandatory
prepayments of the principal of the Loans and the Existing Term Loans and
reductions of revolving credit commitments under the Existing Credit Agreement
during such fiscal year, but only to the extent that such prepayments and
reductions do not occur in connection with a refinancing of all or any portion
of the Loans or Existing Loans, (vi) extraordinary or non-recurring expenses and
losses to the extent paid in cash by the Borrower and its Subsidiaries, if any,
during such fiscal year and not included in Consolidated EBITDA and (vii)
additions to non-cash working capital for such fiscal year (i.e., the increase,
if any, in Consolidated Current Assets minus Consolidated Current Liabilities
from the beginning to the end of such Fiscal Year); provided that, to the extent
otherwise included therein, the Net Cash Proceeds of Asset Sales and Equity
Issuances shall be excluded from the calculation of Excess Cash Flow.
"Existing Credit Agreement" shall mean the Credit Agreement, dated as of
March 6, 1998, among the Borrower, the Subsidiary Borrowers, the Existing
Lenders, the issuing banks party thereto and CSFB, as administrative agent and
collateral agent for such lenders and issuing banks, as amended, supplemented or
otherwise modified from time to time.
"Existing Lenders" shall mean the lenders from time to time party to the
Existing Credit Agreement.
"Existing Loans" shall mean the Existing Term Loans and the Existing
Revolver Loans.
"Existing Revolver Loans" shall mean the Revolving Loans, the A/C Fronted
Loans and the Swingline Loans as such terms are defined in the Existing Credit
Agreement.
"Existing Term Loans" shall mean the Term Loans as such term is defined
in the Existing Credit Agreement.
"Existing Tranche A Term Loans" shall mean the Tranche A Term Loans as such
term is defined in the Existing Credit Agreement.
"Federal Funds Effective Rate" shall have the meaning assigned to such term
in the definition of "Alternate Base Rate".
"Fees" shall mean the Commitment Fees and the Arrangement and
Administrative Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, a Vice President-Finance, principal accounting officer, Treasurer or
Controller of such corporation.
"Floor Plan Guarantees" shall mean Guarantees (including but not limited to
repurchase or remarketing obligations) by the Borrower or a Subsidiary incurred
in the ordinary course of business consistent with past practice of Indebtedness
incurred by a franchise dealer, or other purchaser or lessor, for the purchase
of inventory manufactured or sold by the Borrower or a Subsidiary, the proceeds
of which Indebtedness is used solely to pay the purchase price of such inventory
to such franchise dealer or other purchaser or lessor and any related reasonable
fees and expenses (including financing fees); provided, however, that (a) to the
extent commercially practicable, the Indebtedness so Guaranteed is secured by a
perfected first priority Lien on such inventory in favor of the holder of such
Indebtedness and (b) if the Borrower or such Subsidiary is required to make
payment with respect to such Guarantee, the Borrower or such Subsidiary will
have the right to receive either (i) title to such inventory, (ii) a valid
assignment of a perfected first priority Lien in such inventory or (iii) the net
proceeds of any resale of such inventory.
"Foreign Benefit Event" shall mean, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (b) the failure to make
the required contributions or payments, under any applicable law, on or before
the due date for such contributions or payments, (c) the receipt of a notice by
a Governmental Authority relating to the intention to terminate any such Foreign
Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension
Plan and (d) the incurrence of any liability in excess of $5,000,000 (or the
dollar equivalent thereof in another currency) by the Borrower or any of its
Subsidiaries under applicable law on account of the complete or partial
termination of such Foreign Pension Plan or the complete or partial withdrawal
of any participating employer therein, or (e) the occurrence of any transaction
that is prohibited under any applicable law and could reasonably be expected to
result in the incurrence of any liability by the Borrower or any of its
Subsidiaries, or the imposition on the Borrower or any of its Subsidiaries of
any fine, excise tax or penalty resulting from any noncompliance with any
applicable law, in each case in excess of $5,000,000 (or the dollar equivalent
thereof in another currency).
"Foreign Pension Plan" shall mean any benefit plan which under applicable
law is required to be funded through a trust or other funding vehicle other than
a trust or funding vehicle maintained exclusively by a Governmental Authority.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles in effect in the
United States applied on a consistent basis.
"Governmental Authority" shall mean the government of the United States
of America, the United Kingdom, Germany, France, Italy, Australia, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Group" shall have the meaning assigned to such term in Section 7.02.
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include (i) endorsements for collection or deposit in
the ordinary course of business and (ii) Floor Plan Guarantees except to the
extent that they appear as debt on the Borrower's balance sheet.
"Guarantee Agreements" shall mean the Subsidiary Guarantee Agreement and
the Terex Guarantee Agreement.
"Hazardous Materials" shall mean all explosive or radioactive materials,
substances or wastes, hazardous or toxic materials, substances or wastes,
pollutants, solid, liquid or gaseous wastes, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls ("PCBs") or PCB-containing materials or equipment, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Agreement" shall mean any Interest Rate Protection Agreement or
any foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement
not entered into for speculation.
"Inactive Subsidiary" shall mean each Subsidiary of the Borrower listed on
Schedule 1.01(f) of the Existing Credit Agreement, other than Bidco, until such
time as such Subsidiary shall become a Subsidiary Guarantor.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or advances of any kind, (b) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such person upon which interest charges are
customarily paid, (d) all obligations of such person under conditional sale or
other title retention agreements relating to property or assets purchased by
such person, (e) all obligations of such person issued or assumed as the
deferred purchase price of property or services (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The Indebtedness
of any person shall include the Indebtedness of any partnership in which such
person is a general partner, to the extent such Indebtedness is recourse to such
person either expressly or by operation of law.
"Indemnitee" shall have the meaning assigned to such term in Section
10.05(b).
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, dated as of March 6, 1998,
among the Borrower, the Subsidiaries party thereto and the Collateral Agent.
"Information" shall have the meaning assigned to such term in Section
10.16.
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of such
Borrowing or conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity Date and (iii)
the date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.10 or repaid or prepaid in accordance with Section
2.11 or 2.12; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to, but excluding, the last day of such Interest
Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates, and not entered into for
speculation.
"Irish Facilities" shall mean the credit facilities of Powerscreen.
"Italian Facilities" shall mean the credit facilities of P.P.M. Sp.A. or
any other Subsidiary located in Italy.
"Lenders" shall mean (a) the financial institutions listed on Schedule 2.01
(other than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto pursuant to an Assignment and Acceptance.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing, the
rate per annum determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date which is two Business Days prior to the beginning
of the relevant Interest Period (as specified in the applicable Borrowing
Request) by reference to the British Bankers' Association Interest Settlement
Rates for deposits in dollars (as set forth by any service selected by the
Administrative Agent which has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of displaying
such rates), for a period equal to such Interest Period; provided that, to the
extent that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the "LIBO Rate" shall be the interest rate per
annum determined by the Administrative Agent to be the average of the rates per
annum at which deposits in dollars are offered for such relevant Interest Period
to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date which
is two Business Days prior to the beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Lire" and "Lit" shall mean lire in lawful currency of Italy.
"Loan Documents" shall mean this Agreement, the Guarantee Agreements, the
Security Documents and the Indemnity, Subrogation and Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Subsidiary Guarantors.
"Loans" shall mean the loans made by the Lenders to the Borrower pursuant
to Article II. The Loans are the Tranche C Loans referred to in the Existing
Credit Agreement.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Marks" and "DM" shall mean deutsche marks in lawful currency of Germany.
"Material Adverse Effect" shall mean (a) a materially adverse effect on the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and its Subsidiaries, taken as a whole, (b) material impairment of
the ability of the Loan Parties to perform their obligations under the Loan
Documents or (c) material impairment of the rights of or benefits available to
the Lenders under any Loan Document.
"Maturity Date" shall mean March 6, 2006.
"Maximum Rate" shall have the meaning assigned to such term in Section
10.09.
"Mortgaged Properties" shall mean the owned real properties and leasehold
and subleasehold interests specified on Schedule 1.01(c).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold mortgages,
assignments of leases and rents, modifications and other security documents
listed on Schedule 1.01(d) or delivered pursuant to Section 5.11.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the cash
proceeds (including cash proceeds subsequently received (as and when received)
in respect of non-cash consideration initially received and including all
insurance settlements and condemnation awards in excess of $250,000 from any
single event or series of related events), net of (i) transaction expenses
(including reasonable broker's fees or commissions, legal fees, accounting fees,
investment banking fees and other professional fees, transfer and similar taxes
and the Borrower's good faith estimate of income taxes paid or payable in
connection with the receipt of such cash proceeds), (ii) amounts provided as a
reserve, in accordance with GAAP, including pursuant to any escrow arrangement,
against any liabilities under any indemnification obligations associated with
such Asset Sale (provided that, to the extent and at the time any such amounts
are released from such reserve, such amounts shall constitute Net Cash
Proceeds), (iii) in the case of insurance settlements and condemnation awards,
amounts previously paid by the Borrower and its Subsidiaries to replace or
restore the affected property, and (iv) the principal amount, premium or
penalty, if any, interest and other amounts on any Indebtedness for borrowed
money which is secured by the asset sold in such Asset Sale and is required to
be repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such asset); provided, however, that, with respect to the proceeds
of any Asset Sale or series of related Asset Sales in an amount of less than or
equal to $50,000,000 in the aggregate, if (A) the Borrower shall deliver a
certificate of a Financial Officer to the Administrative Agent at the time of
receipt thereof setting forth the Borrower's intent to reinvest such proceeds in
productive assets of a kind then used or usable in the business of the Borrower
and its Subsidiaries within 300 days of receipt of such proceeds and (B) no
Default or Event of Default shall have occurred and shall be continuing at the
time of such certificate or at the proposed time of the application of such
proceeds, such proceeds shall not constitute Net Cash Proceeds except to the
extent not so used at the end of such 300-day period, at which time such
proceeds shall be deemed to be Net Cash Proceeds, and (b) with respect to any
Equity Issuance or any other issuance or disposition of Indebtedness, the cash
proceeds thereof, net of all taxes and customary fees, commissions, costs and
other expenses (including reasonable broker's fees or commissions, legal fees,
accounting fees, investment banking fees and other professional fees, and
underwriter's discounts and commissions) incurred in connection therewith.
"Non-US Lender" shall have the meaning assigned to such term in Section
2.20.
"Obligations" shall mean all obligations defined as "Obligations" in any of
the Guarantee Agreements and the Security Documents and shall include, in
addition to the obligations described therein, the following: (a) the due and
punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans by the Borrower, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrower or any
subsidiary borrower under the Additional L/C Facility in respect of any
Additional Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Borrower or any
subsidiary borrower to the Secured Parties under this Agreement and/or the
Additional L/C Facility, (b) the due and punctual performance of (i) all
covenants, agreements, obligations and liabilities of the Borrower under or
pursuant to this Agreement and (ii) all covenants, agreements, obligations and
liabilities of the Borrower or any subsidiary borrower under or pursuant to the
Additional L/C Facility and (c) the due and punctual payment and performance of
all the covenants, agreements, obligations and liabilities of each other Loan
Party under or pursuant to any Loan Document.
"Offer" shall have the meaning assigned to such term in the preamble to
this Agreement and shall include the terms and conditions contained in the U.K.
press release of the Borrower, dated as of June 15, 1999 (the "Press Release"),
attached hereto as Schedule 3.24(a).
"Offer Conditions Precedent" shall mean the conditions listed on Schedule
1.01(a).
"Offer Document" shall have the meaning assigned to such term in Section
3.24.
"Offer Termination Date" shall mean the earliest date (as notified by the
Borrower to the Administrative Agent in writing) on which all of the following
have occurred: (a) all payments in respect of Shares or of any proposals to
holders of options over Shares in accordance with Rule 15 of the City Code in
the Offer have been made in full; (b) no further such acceptances are possible;
and (c) all procedures pursuant to Section 428 et seq. of the U.K. Companies ▇▇▇
▇▇▇▇ that are capable of being implemented have been completed and all payments
pursuant thereto to the shareholders of Powerscreen have been made in full.
"Other Taxes" shall have the meaning assigned to such term in Section 2.20.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Permitted Acquisitions" shall mean acquisitions (in a single transaction
or a series of related transactions) of not less than 100% (other than
directors' qualifying shares) of the outstanding capital stock or other equity
interests of any corporation, partnership, a division of any corporation or any
similar business unit (or of all or substantially all the assets and business of
any of the foregoing) engaged in a Related Business so long as (a) in the case
of each such acquisition of capital stock or other equity interests, such
acquisition was not preceded by an unsolicited tender offer for such capital
stock or other equity interests by the Borrower or any of its Affiliates, (b)
the Borrower shall have delivered to the Administrative Agent a certificate
certifying that at the time of and immediately after giving effect to such
acquisition, no Default or Event of Default shall have occurred and be
continuing, and (c) either (i) the total consideration with respect to such
acquisition shall not exceed $2,500,000, (ii) the Borrower shall have delivered
to the Administrative Agent a certificate certifying that at the time of and
immediately after giving effect to such acquisition, the Pro Forma Acquisition
EBITDA of the entity acquired pursuant to such acquisition shall not exceed 25%
of the sum of such Pro Forma Acquisition EBITDA plus Consolidated EBITDA, in
each case for the period of four fiscal quarters ended on the last day of the
most recent fiscal quarter ended prior to the date of such acquisition or (iii)
(A) the Borrower shall have delivered to the Administrative Agent a certificate
certifying that at the time of and immediately after giving effect to such
acquisition, the ratio of (1) the Total Debt of the Borrower and its
Subsidiaries on the date of such acquisition (including all Indebtedness
incurred in connection with or resulting from such acquisition that would
constitute Total Debt) to (2) the sum of (x) Pro Forma Acquisition EBITDA of the
entity acquired pursuant to such acquisition, (y) Pro Forma Acquisition EBITDA
for all other Acquired Persons acquired during the period of four consecutive
fiscal quarters most recently ended prior to the date of such acquisition and
(z) Consolidated EBITDA, in each case for the period of four fiscal quarters
most recently ended prior to the date of such acquisition, shall be at least
0.15 to 1.00 less than the Consolidated Leverage Ratio required pursuant to
Section 6.11 on such date and (B) such corporation, partnership, division,
business or assets, as applicable, are located in the United States (or the
principal place of business with respect thereto and substantially all of the
applicable assets are located in the United States) or in any country included
on Schedule 1.01(e) to the Existing Credit Agreement or on a list approved by
the Required Lenders prior to the date of such acquisition. For purposes of
determining compliance with clause (c)(i) above, the principal amount of
Indebtedness assumed in connection with an acquisition shall be included in
calculating the consideration therefor.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Ratings Service or
from ▇▇▇▇▇'▇ Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, (i) the Administrative Agent or any domestic office
of any commercial bank organized under the laws of the United States of
America or any State thereof or (ii) a commercial banking institution
organized and located in a country recognized by the United States of
America, in each case that has a combined capital and surplus and undivided
profits of not less than $250,000,000 (or the dollar equivalent thereof in
another currency);
(d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (c)
above;
(e) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (a) through
(d) above; and
(f) other short-term investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management not
exceeding $1,000,000 in aggregate principal amount outstanding at any time.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership, other
business entity or government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, dated as of March 6,
1998, among the Borrower, the Subsidiaries party thereto and the Collateral
Agent for the benefit of the Secured Parties.
"Powerscreen Acquisition" shall have the meaning assigned to such term in
the preamble to this Agreement.
"Press Release" shall have the meaning assigned to such term in the
definition of the term "Offer".
"Prime Rate" shall have the meaning assigned to such term in the definition
of the term "Alternate Base Rate".
"Pro Forma Acquisition EBITDA" shall mean with respect to any entity or
business unit acquired or to be acquired in a Permitted Acquisition, the amount
of Consolidated EBITDA of such entity or business unit (as if such entity or
business unit were the Borrower) determined by the Borrower and acceptable to
the Administrative Agent in its reasonable discretion, based upon and derived
from financial information delivered to the Administrative Agent prior to
consummation of such Permitted Acquisition for the four-quarter period ending on
the last day of the immediately preceding fiscal quarter of such entity or
business unit for which such financial information for such entity or business
unit has been delivered to the Administrative Agent, adjusted by the estimated
amount of non-recurring revenues and expenditures with respect to the business
of such entity or business unit, as calculated by the Borrower and acceptable to
the Administrative Agent in its reasonable discretion. On each subsequent
determination date occurring within one year after the consummation of a
Permitted Acquisition, the entity's Pro Forma Acquisition EBITDA shall include
the Pro Forma Acquisition EBITDA only for those fiscal quarters in the trailing
four-quarter period occurring prior to the closing of such Permitted
Acquisition.
"Purchase Money Indebtedness" shall mean any Indebtedness of a person to
any seller or other person incurred to finance the acquisition (including in the
case of a Capital Lease Obligation, the lease) of any after acquired real or
personal tangible property or assets related to the business of the Borrower or
the Subsidiaries and which is incurred substantially concurrently with such
acquisition and is secured only by the assets so financed.
"Refinancing Indebtedness" shall have the meaning assigned to such term in
Section 6.01(n).
"Register" shall have the meaning given such term in Section 10.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Business" shall mean any business in the manufacture or sale
of capital goods or parts or services, or otherwise reasonably related,
ancillary or complementary to the businesses of the Borrower and the
Subsidiaries on the Effective Date.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) clean up, remove,
treat, ▇▇▇▇▇ or in any other way address any Hazardous Material in the
environment; (ii) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not migrate or endanger or
threaten to endanger public health, welfare or the environment; or (iii) perform
studies and investigations in connection with, or as a precondition to, (i) or
(ii) above.
"Repayment Date" shall have the meaning assigned to such term in
Section 2.11(a).
"Required Lenders" shall mean, at any time, Lenders having Loans and
unused Commitments representing at least 51% of the sum of all Loans outstanding
and unused Commitments at such time; provided that so long as at least one of
the Lenders is not an Affiliate of CSFB, the Required Lenders must include at
least one Lender other than CSFB and its Affiliates.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Sale and Leaseback" shall have the meaning set forth in Section 6.03.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement and shall also include the Lenders and the Additional L/C
Issuing Banks.
"Security Agreement" shall mean the Security Agreement, dated as of March
6, 1998, among the Borrower, the Subsidiaries party thereto and the Collateral
Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Mortgages, the Security Agreement, the
Pledge Agreement and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"Senior Subordinated Notes" shall mean (a) the Borrower's 8-7/8% Senior
Subordinated Notes due 2008 issued under an indenture dated March 31, 1998,
among the Borrower, the guarantors named therein and the United States Trust
Company of New York, as trustee, and (b) the Borrower's 8-7/8% Series C and
Series D Senior Subordinated Notes due 2008 issued under an indenture dated
March 9, 1999, among the Borrower, the guarantors named therein and the United
States Trust Company of New York, as trustee, in each case as amended from time
to time in accordance with the provisions thereof and this Agreement.
"Shares" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Significant Subsidiary" shall mean any subsidiary that would be a
"Significant Subsidiary" within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Securities and Exchange Commission.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by any Governmental Authority to which banks are subject for any
category of deposits or liabilities customarily used to fund loans or by
reference to which interest rates applicable to Loans are determined. Such
reserve, liquid asset or similar percentages shall include those imposed
pursuant to Regulation D of the Board (and for purposes of Regulation D,
Eurocurrency Loans denominated in dollars shall be deemed to constitute
Eurocurrency Liabilities). Loans shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under Regulation D or any
other applicable law, rule or regulation. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Borrowers" shall mean the Subsidiaries party to the Existing
Credit Agreement as subsidiary borrowers.
"Subsidiary Guarantee Agreement" shall mean the Guarantee Agreement, dated
as of March 6, 1998, made by the Subsidiary Guarantors in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Subsidiary Guarantors" shall mean each person listed on Schedule
1.01(b) and each other person that becomes party to the Subsidiary Guarantee
Agreement as a Guarantor, and the permitted successors and assigns of each such
person.
"Syndication Letter" shall mean the Syndication Letter dated July 2, 1999,
among the Borrower and the Arrangers.
"Takeover Panel" shall mean The Panel on Takeovers and Mergers (U.K.).
"Taxes" shall have the meaning assigned to such term in Section 2.20.
"Terex Guarantee Agreement" shall mean the Guarantee Agreement, dated as of
March 6, 1998, made by the Borrower in favor of the Collateral Agent for the
benefit of the Secured Parties.
"Termination Date" shall mean the earlier of (a) January 11, 2000 and (b)
the later of (i) the date that is three months after the Unconditional Date and
(ii) the date that is 116 days after the first date on which Bidco acquires 90%
of the outstanding Shares to which the Offer relates; provided, however, that,
notwithstanding the foregoing, the Termination Date shall be the date that is 60
days after the first date on which Bidco acquires 90% of the outstanding Shares
to which the Offer relates if Bidco has not commenced procedures under Section
428 et. seq. of the Companies Act of 1985 by such date.
"Total Debt" shall mean, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness of the Borrower and
its Subsidiaries outstanding as of such date, determined on a consolidated basis
(other than Indebtedness of the type referred to in clause (i) of the definition
of the term "Indebtedness", except to the extent of any unreimbursed drawings
thereunder). For purposes of calculating the Leverage Ratio on any date, the
amount of Total Debt on such date shall be reduced by the amount, if any, that
cash on the balance sheet of the Borrower and its consolidated Subsidiaries on
such date exceeds $5,000,000.
"Total Senior Secured Debt" shall mean, as of any date of determination,
the sum of the aggregate principal amount of all (a) Loans outstanding as of
such date, (b) Capital Lease Obligations of the Borrower and the Subsidiaries
outstanding as of such date and (c) other Indebtedness of the Borrower and the
Subsidiaries that is secured by any assets of the Borrower and the Subsidiaries.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Transferee" shall have the meaning assigned to such term in Section 2.20.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"Unconditional Date" shall mean the date that the Offer Conditions
Precedent have been satisfied (or waived in accordance with this Agreement).
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person; provided that each of Terex Cranes,
Inc., P.P.M. Cranes, Inc., P.P.M. S.A., and any future wholly owned subsidiaries
of any of the foregoing shall be deemed to be wholly owned Subsidiaries, in each
case so long as the Borrower or one or more wholly owned Subsidiaries maintains
a percentage ownership interest in such entity equal to or greater than such
ownership interest (on a fully diluted basis) on the later of (a) the Effective
Date or (b) the date such entity is incorporated or acquired by the Borrower or
one or more wholly owned Subsidiaries.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, (a) any reference in this Agreement to any Loan Document shall
mean such document as amended, restated, supplemented or otherwise modified from
time to time and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend Article VI or any
related definition for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Loans to the Borrower during the Availability
Period in accordance with the terms hereof, in an aggregate principal amount not
to exceed its Commitment. Amounts paid or prepaid in respect of Loans may not be
reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
respective Commitments; provided, however, that the failure of any Lender to
make any Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). The Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $100,000 and not
less than $2,500,000 or (ii) equal to the remaining available balance of the
Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurocurrency Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurocurrency Loan by
causing any domestic or foreign branch of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in New York City as the Administrative Agent may designate not later
than 11:00 a.m., New York City time, and the Administrative Agent shall,
promptly upon receipt thereof, credit the amounts so received to an account as
designated by the Borrower, in the applicable Borrowing Request or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Effective Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Interest Period with respect to any
Eurocurrency Borrowing that would end after the Maturity Date.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing, the
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request (or telephone the Administrative Agent, promptly
confirmed with a written and duly completed Borrowing Request) (a) in the case
of a Eurocurrency Borrowing, not later than 12:00 (noon), New York City time,
three Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 1:00 p.m., New York City time, one Business Day before
a proposed Borrowing. Each Borrowing Request (including a telephonic Borrowing
Request) shall be irrevocable, shall be signed by or on behalf of the Borrower
and shall specify the following information: (i) whether the Borrowing is to be
a Eurocurrency Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day); (iii) the number and location of the account to
which funds are to be disbursed (which shall be an account that complies with
the requirements of Section 2.02(c)); (iv) the amount of such Borrowing; (v) if
such Borrowing is to be a Eurocurrency Borrowing, the initial Interest Period
with respect thereto; and (vi) whether such Borrowing is subject to the
conditions of Section 4.02 or 4.03; provided, however, that, notwithstanding any
contrary specification in any Borrowing Request, each requested Borrowing shall
comply with the requirements set forth in Section 2.02. If no election as to the
Type of Borrowing is specified in any such notice, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to any
Eurocurrency Borrowing is specified in any such notice, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the applicable Lenders of any notice
given pursuant to this Section 2.03 (and the contents thereof), of each Lender's
portion of the requested Borrowing and the account to which Loans made in
connection with the requested Borrowing are to be wired.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the Lender entitled thereto the principal amount of each Loan of such Lender as
provided in Section 2.11.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Subsidiary Guarantor and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded absent manifest error; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the Borrower
to repay the Loans in accordance with their terms.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) and in a form and
substance reasonably acceptable to the Administrative Agent and the Borrower.
Notwithstanding any other provision of this Agreement, in the event any Lender
shall request and receive a promissory note payable to such Lender and its
registered assigns, the interests represented by such note shall at all times
(including after any assignment of all or part of such interests pursuant to
Section 10.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last day of March, June, September and December
in each year, on the date of the initial Borrowing and on each date on which any
Commitment of such Lender shall expire or be terminated as provided herein, a
commitment fee (a "Commitment Fee") equal to 0.50% per annum on the daily unused
Commitment of such Lender during the preceding quarter (or other period
commencing with the Effective Date or ending on the date of the initial
Borrowing or the date on which the Commitment of such Lender shall expire or be
terminated). All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Commitment Fee due to each
Lender shall commence to accrue on the Effective Date and shall cease to accrue
on the date on which the Commitment of such Lender shall expire or be terminated
as provided herein; provided, however, that no Commitment Fee shall be due and
payable until the occurrence of the initial Borrowing.
(b) The Borrower agrees to pay to the Arrangers and the Administrative
Agent the fees set forth in the Syndication Letter and in the Engagement Letter
at the times and in the amounts specified therein (the "Arrangement and
Administrative Fees").
(c) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders and the Arrangers. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when the Alternate Base Rate is determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the sum of (i) the Alternate Base Rate and (ii) the Applicable
Percentage for such Loans in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurocurrency Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
sum of (i) the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing and (ii) the Applicable Percentage for such Loans in effect from time
to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to, but excluding, the date of actual
payment (after as well as before judgment) (a) in the case of the Loans, at the
rate that would otherwise be applicable thereto pursuant to Section 2.06 plus
2.00% and (b) in the case of any interest payable on any Loan or any Commitment
Fee or other amount payable hereunder, at a rate per annum equal to the rate
applicable to ABR Loans plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing the Administrative Agent shall have
determined that (a) deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
(b) the rates at which such deposits are being offered will not adequately and
fairly reflect the cost to any Lender of making or maintaining its Eurocurrency
Loan during such Interest Period, or (c) reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice explaining such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurocurrency Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Commitments
shall automatically be reduced on the date of each Borrowing by an amount equal
to the aggregate principal amount of Loans so borrowed, and any remaining unused
Commitments shall automatically terminate at 5:00 p.m., New York City time, on
the last day of the Availability Period.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Commitments; provided, however, that each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $10,000,000.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall
have the right at any time upon prior irrevocable notice to the Administrative
Agent (a) not later than 1:00 p.m., New York City time, one Business Day prior
to conversion, to convert any Eurocurrency Borrowing into an ABR Borrowing, (b)
not later than 12:00 (noon), New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurocurrency
Borrowing or to continue any Eurocurrency Borrowing as a Eurocurrency Borrowing
for an additional Interest Period, and (c) not later than 12:00 (noon), New York
City time, three Business Days prior to conversion, to convert the Interest
Period with respect to any Eurocurrency Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurocurrency Loan
(or portion thereof) being converted shall be paid by the Borrower at
the time of conversion;
(iv) if any Eurocurrency Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurocurrency Borrowing;
(vi) any portion of a Eurocurrency Borrowing that cannot be
converted into or continued as a Eurocurrency Borrowing by reason of
the immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurocurrency
Borrowing that would end later than the Repayment Date occurring on or
after the first day of such Interest Period if, after giving effect to
such selection, the aggregate outstanding amount of (A) the
Eurocurrency Borrowings with Interest Periods ending on or prior to
such Repayment Date and (B) the ABR Borrowings would not be at least
equal to the principal amount of Borrowings to be paid on such
Repayment Date; and
(viii) upon notice to the Borrower from the Administrative
Agent given at the request of the Required Lenders, after the
occurrence and during the continuance of a Default or Event of Default,
(A) no outstanding Borrowing may be converted into, or continued as, a
Eurocurrency Borrowing and (B) unless repaid, each Eurocurrency
Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurocurrency Borrowing or an
ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurocurrency Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurocurrency Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Borrowings. (a) The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, on the dates set forth
below, or if any such date is not a Business Day, on the next succeeding
Business Day (each such date being a "Repayment Date"), a principal amount of
the Loans (as adjusted from time to time pursuant to Sections 2.12(b) and
2.13(e)) equal to the percentage set forth below opposite such date multiplied
by the aggregate principal amount of all Loans made to the Borrower hereunder
and outstanding on the Termination Date, together in each case with accrued and
unpaid interest on the principal amount to be paid to, but excluding, the date
of such payment:
Date Percentage
---- ----------
March 31, 2000 0.25%
June 30, 2000 0.25%
September 30, 2000 0.25%
December 31, 2000 0.25%
March 31, 2001 0.25%
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 0.25%
September 30, 2004 0.25%
December 31, 2004 0.25%
March 31, 2005 0.25%
June 30, 2005 23.6875%
September 30, 2005 23.6875%
December 31, 2005 23.6875%
Maturity Date 23.6875%
(b) To the extent not previously paid, all Loans shall be due and payable
on the Maturity Date, together with accrued and unpaid interest on the principal
amount to be paid to, but excluding, the date of payment.
(c) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, upon prior
written or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Administrative Agent (i) in the case of a prepayment of
a Eurocurrency Borrowing, given before 12:00 (noon), New York City time, three
Business Days before such prepayment and (ii) in the case of a prepayment of ABR
Loans, given before 1:00 p.m. local time, one Business Day before such
prepayment; provided, however, that each partial prepayment shall be in an
amount that is an integral multiple of $100,000 and not less than $2,500,000.
(b) Optional prepayments of Loans shall be applied (i) first, against the
remaining scheduled installments of principal due in respect of the Loans under
Sections 2.11(a) in the next twelve months in the order of maturity and (ii)
second, pro rata against such remaining scheduled installments of principal.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued interest
on the principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) Not later than the third Business
Day following the receipt of Net Cash Proceeds in respect of any Asset Sale
(other than (i) any Asset Sale the Net Cash Proceeds of which are not greater
than $250,000 from any single event or series of related events and (ii) Asset
Sales the aggregate Net Cash Proceeds of which are not greater than $10,000,000
in any fiscal year of the Borrower), the outstanding Loans shall be prepaid in
accordance with Section 2.13(e) in an aggregate principal amount equal to 100%
of such Net Cash Proceeds.
(b) No later than the earlier of (i) 90 days after the end of each fiscal
year of the Borrower and (ii) the date on which the financial statements with
respect to such fiscal year are delivered pursuant to Section 5.04(a),
outstanding Loans shall be prepaid in accordance with Section 2.13(e) in an
aggregate principal amount equal to 50% of Excess Cash Flow for the fiscal year
then ended; provided, however, that no such prepayment shall be required if the
Consolidated Leverage Ratio as of the end of such fiscal year shall be less than
3.85 to 1.00.
(c) In the event that the Borrower or any Subsidiary shall receive Net Cash
Proceeds from (i) the issuance of any Additional Subordinated Notes or (ii) the
issuance or incurrence of any other Indebtedness for money borrowed (other than
Indebtedness for money borrowed permitted pursuant to Section 6.01), then,
substantially simultaneously with (and in any event not later than the third
Business Day next following) the receipt of such Net Cash Proceeds, 100% of such
Net Cash Proceeds shall be used (i) to fund the consideration for a Permitted
Acquisition, (ii) to prepay outstanding Loans in accordance with Section
2.13(e), and/or (iii) to prepay outstanding revolving loans under the Existing
Credit Agreement, without reducing the commitments to provide such revolving
loans, in an aggregate principal amount equal to 100% of such Net Cash Proceeds.
(d) In the event that there shall occur any Casualty or Condemnation
and, pursuant to the applicable Mortgage, the Casualty Proceeds or Condemnation
Proceeds, as the case may be, are required to be used to prepay the Loans, then
the outstanding Loans shall be prepaid in accordance with Section 2.13(e) in an
aggregate principal amount equal to 100% of such Casualty Proceeds or
Condemnation Proceeds, as the case may be.
(e) Subject to paragraph (h) below, each prepayment of outstanding Loans
required to be made pursuant to any paragraph of this Section 2.13 shall be
applied (i) first against the remaining scheduled installments of principal due
in respect of the Loans under Sections 2.11(a) in the next twelve months in the
order of maturity and (ii) second, pro rata against such remaining scheduled
installments of principal.
(f) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three Business Days' prior written notice of such prepayment. Each
notice of prepayment shall specify the prepayment date, the Type of each Loan
being prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(g) To the extent possible consistent with Section 2.13(e), amounts to be
applied pursuant to this Section 2.13 to the prepayment of Loans shall be
applied first to prepay outstanding ABR Loans. Any amounts remaining after each
such application shall, at the option of the Borrower, be applied to prepay
Eurocurrency Loans immediately and/or shall be deposited in the Prepayment
Account (as defined below). The Administrative Agent shall apply any cash
deposited in the Prepayment Account allocable to Loans to prepay Eurocurrency
Loans on the last day of the applicable Interest Periods (or, at the direction
of the Borrower, on any earlier date) until all outstanding Loans have been
prepaid or until all the allocable cash on deposit with respect to the Loans has
been exhausted. For purposes of this Agreement, the term "Prepayment Account"
shall mean an account established by the Borrower with the Administrative Agent
and over which the Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal for application in
accordance with this paragraph (g). The Administrative Agent will, at the
request of the Borrower, invest amounts on deposit in the Prepayment Account in
Permitted Investments that mature prior to the last day of the applicable
Interest Periods of the Eurocurrency Borrowings to be prepaid; provided,
however, that (i) the Administrative Agent shall not be required to make any
investment that, in its sole judgment, would require or cause the Administrative
Agent to be in, or would result in any, violation of any law, statute, rule or
regulation and (ii) the Administrative Agent shall have no obligation to invest
amounts on deposit in the Prepayment Account if a Default or Event of Default
shall have occurred and be continuing. The Borrower shall indemnify the
Administrative Agent for any losses relating to the investments so that the
amount available to prepay Eurocurrency Borrowings on the last day of the
applicable Interest Period is not less than the amount that would have been
available had no investments been made pursuant thereto. Other than any interest
earned on such investments (which shall be for the account of the Borrower, to
the extent not necessary for the prepayment of Eurocurrency Loans in accordance
with this Section 2.13), the Prepayment Account shall not bear interest.
Interest or profits, if any, on such investments shall be deposited in the
Prepayment Account and reinvested and disbursed as specified above. If the
maturity of the Loans has been accelerated pursuant to Section 8.02, the
Administrative Agent may, in its sole discretion, apply all amounts on deposit
in the Prepayment Account to satisfy any of the Obligations. The Borrower hereby
grants to the Administrative Agent, for its benefit and the benefit of the
Secured Parties, a security interest in its Prepayment Account to secure the
Obligations. This paragraph (g) shall not be construed to alter the application
required by Section 2.13(e).
(h) Any Lender may elect, by notice to the Administrative Agent in writing
(or by telephone or telecopy promptly confirmed in writing) prior to 12:00
(noon), New York City time, at least three Business Days prior to any prepayment
of Loans required to be made by the Borrower for the account of such Lender
pursuant to this Section 2.13, to cause all or a portion of such prepayment to
be applied instead to prepay Tranche A Term Loans in accordance with the
Existing Credit Agreement.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurocurrency Loan made by such Lender or any
Fees or other amounts payable hereunder (other than changes in respect of taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office or by any political subdivision or taxing
authority therein), or shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender (except any such reserve
requirement which is reflected in the Adjusted LIBO Rate) or shall impose on
such Lender or the London interbank market any other condition affecting this
Agreement or Eurocurrency Loans made by such Lender or participation therein,
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or to reduce the amount of
any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender to be material, then
the Borrower will pay to such Lender upon demand such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any Lender shall have determined that the adoption after the
Effective Date of any law, rule, regulation, agreement or guideline regarding
capital adequacy, or any change after the Effective Date in any such law, rule,
regulation, agreement or guideline (whether such law, rule, regulation,
agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Lender's holding company with any request
or directive regarding capital adequacy (whether or not having the force of law)
of any Governmental Authority has or would have the effect of reducing the rate
of return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender pursuant hereto to a level below that which such Lender or such Lender's
holding company could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Lender's policies and the policies
of such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary
to compensate such Lender or its holding company as specified in paragraph (a)
or (b) above shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital shall not constitute a waiver of such Lender's right to
demand such compensation. The protection of this Section shall be available to
each Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, agreement, guideline or other
change or condition that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if, after the Effective Date, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurocurrency Loan or to give effect to
its obligations as contemplated hereby with respect to any Eurocurrency Loan,
then, by written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurocurrency Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurocurrency Loans), whereupon any request for a Eurocurrency Borrowing
(or to convert an ABR Borrowing to a Eurocurrency Borrowing or to
continue a Eurocurrency Borrowing for an additional Interest Period)
shall, as to such Lender only, be deemed a request for an ABR Loan (or
a request to continue an ABR Loan as such for an additional Interest
Period or to convert a Eurocurrency Loan into an ABR Loan, as the case
may be), unless such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurocurrency
Loans made by it be converted to ABR Loans in which event all such
Eurocurrency Loans shall be automatically converted to such ABR Loans
as of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans of such Lender shall instead be applied to repay
the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurocurrency Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurocurrency Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurocurrency Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense, including any break-funding cost, that such Lender may
sustain or incur as a consequence of (a) any event, other than a default by such
Lender in the performance of its obligations hereunder, which results in (i)
such Lender receiving or being deemed to receive any amount on account of the
principal of any Eurocurrency Loan prior to the end of the Interest Period in
effect therefor, (ii) the conversion of any Eurocurrency Loan to an ABR Loan or
the conversion of the Interest Period with respect to any Eurocurrency Loan
other than on the last day of the Interest Period in effect therefor, or (iii)
any Eurocurrency Loan to be made by such Lender (including any Eurocurrency Loan
to be made pursuant to a conversion or continuation under Section 2.10) not
being made after notice of such Loan shall have been given by the Borrower
hereunder (any of the events referred to in this clause (a) being called a
"Breakage Event") or (b) any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurocurrency Loan that is the
subject of such Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or that would have been
in effect) for such Loan over (ii) the amount of interest likely to be realized
by such Lender in redeploying the funds released or not utilized by reason of
such Breakage Event for such period. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.16, together with a reasonably detailed calculation thereof, shall be
delivered to the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided in Sections 2.13(h)
and 2.15, each Borrowing, each payment of the Commitment Fees and each reduction
of the Commitments shall be allocated pro rata among the Lenders in accordance
with their respective Commitments (or, if such Commitments shall have expired or
been terminated, in accordance with the respective principal amounts of their
outstanding Loans). Each payment or prepayment of principal of the Loans, each
payment of interest on the Loans and each conversion or continuation of any
Borrowing shall be allocated pro rata among the Lenders in accordance with the
respective principal amounts of their outstanding Loans. Each Lender agrees that
in computing such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing to the next higher or lower whole dollar.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans and as a result of which the unpaid principal portion of its Loans
shall be proportionately less than the unpaid principal portion of the Loans or
the Existing Loans of any other Lender or Existing Lender, such Lender shall be
deemed simultaneously to have purchased from such other Lender or Existing
Lender at face value, and shall promptly pay to such other Lender or Existing
Lender the purchase price for, a participation in the Loans or the applicable
Existing Loans, as the case may be, of such other Lender or Existing Lender, so
that the aggregate unpaid principal amount of the Loans or the applicable
Existing Loans and participations in Loans or the applicable Existing Loans held
by each Lender and each Existing Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans and Existing Loans then
outstanding as the principal amount of such Lender's Loans and Existing Loans
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Loans and Existing Loans outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.18 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Loan or any Existing Loan deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower to such Lender by reason thereof as fully as if
such Lender had made a Loan or Existing Loan, as applicable, directly to the
Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any Fees or other amounts)
hereunder and under any other Loan Document prior to 1:00 p.m., New York City
time, on the date when due in immediately available funds, without setoff,
defense or counterclaim. Each such payment shall be made to such account as
shall from time to time be specified in a writing delivered to the Borrower by
the Administrative Agent.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on behalf of the
Borrower or any other Loan Party hereunder and under any other Loan Document
shall be made, in accordance with Section 2.19, free and clear of and without
deduction for any and all current or future taxes, levies, imposts, deductions,
charges or withholdings imposed by any Governmental Authority and all
liabilities with respect thereto, excluding (i) income taxes imposed on the net
income of the Administrative Agent or any Lender (or any transferee or assignee
thereof, including a participation holder (any such entity a "Transferee")) and
(ii) franchise taxes imposed on the net income of the Administrative Agent or
any Lender (or Transferee), in each case by the jurisdiction under the laws of
which the Administrative Agent or such Lender (or Transferee) is organized or
any political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or individually,
being called "Taxes"). If the Borrower or any other Loan Party shall be required
to deduct any Taxes from or in respect of any sum payable hereunder or under any
other Loan Document to the Administrative Agent or any Lender (or any
Transferee), (i) the sum payable shall be increased by the amount necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) the Administrative Agent or
such Lender (or Transferee), as the case may be, shall receive an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower or such other Loan Party shall make such deductions and (iii) the
Borrower or such other Loan Party shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies that arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document imposed by
any Governmental Authority ("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent and each Lender
(or Transferee) for the full amount of Taxes and Other Taxes paid by the
Administrative Agent or such Lender (or Transferee), as the case may be, and any
liability (including penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by the Administrative Agent or a Lender (or
Transferee), or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes. Such indemnification
shall be made within 30 days after the date the Administrative Agent or any
Lender (or Transferee), as the case may be, makes written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Borrower or any other Loan Party to the relevant Governmental
Authority, the Borrower or such other Loan Party will deliver to the
Administrative Agent, at its address referred to in Section 10.01, the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(e) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") that is entitled to an exemption from, or
reduction of, withholding tax under the law of the United States with respect to
payments by the Borrower under this Agreement and the other Loan Documents shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate; provided that such Non-U.S. Lender has received written notice
from the Borrower advising it of the availability of such exemption or reduction
and containing all applicable documentation. In addition, each Non-U.S. Lender
shall deliver such documentation promptly upon the obsolescence or invalidity of
any documentation previously delivered by such Non-U.S. Lender. Notwithstanding
any other provision of this Section 2.20(e), a Non-U.S. Lender shall not be
required to deliver any documentation pursuant to this Section 2.20(e) that such
Non-U.S. Lender is not legally able to deliver.
(f) The Borrower shall not be required to indemnify any Non-U.S. Lender, or
to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed and would apply to payments made to such
Non-U.S. Lender on the date such Non-U.S. Lender became a party to this
Agreement (or, in the case of a Transferee that is a participation holder, on
the date such participation holder became a Transferee hereunder); provided that
this paragraph (f) shall not apply to any Transferee that becomes a Transferee
as a result of an assignment, participation, transfer or designation made at the
request of the Borrower, or (ii) the obligation to pay such additional amounts
would not have arisen but for a failure by such Non-U.S. Lender to comply with
the provisions of paragraph (e) above.
(g) Nothing contained in this Section 2.20 shall require any Lender (or any
Transferee) or the Administrative Agent to make available any of its tax returns
(or any other information that it deems to be confidential or proprietary).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender delivers a certificate requesting
compensation pursuant to Section 2.14, (ii) any Lender delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority on account of any
Lender pursuant to Section 2.20, the Borrower may, at its sole expense and
effort (including with respect to the processing and recordation fee referred to
in Section 10.04(b)), upon notice to such Lender and the Administrative Agent,
require such Lender to transfer and assign, without recourse (in accordance with
and subject to the restrictions contained in Section 10.04), all of its
interests, rights and obligations under this Agreement to an assignee that shall
assume such assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (x) such assignment shall not
conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (y) the Borrower shall have received
the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, and (z) the Borrower or such assignee shall have paid
to the affected Lender in immediately available funds an amount equal to the sum
of the principal of and interest accrued to the date of such payment on the
outstanding Loans of such Lender plus all Fees and other amounts accrued for the
account of such Lender hereunder (including any amounts under Section 2.14 and
Section 2.16); provided further that, if prior to any such transfer and
assignment the circumstances or event that resulted in such Lender's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender to
suffer increased costs or reductions in amounts received or receivable or
reduction in return on capital, or cease to have the consequences specified in
Section 2.15, or cease to result in amounts being payable under Section 2.20, as
the case may be (including as a result of any action taken by such Lender
pursuant to paragraph (b) below), or if such Lender shall waive its right to
claim further compensation under Section 2.14 in respect of such circumstances
or event or shall withdraw its notice under Section 2.15 or shall waive its
right to further payments under Section 2.20 in respect of such circumstances or
event, as the case may be, then such Lender shall not thereafter be required to
make any such transfer and assignment hereunder.
(b) If (i) any Lender shall request compensation under Section 2.14, (ii)
any Lender delivers a notice described in Section 2.15 or (iii) the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority on account of any Lender, pursuant to Section 2.20, then such Lender
shall use reasonable efforts (which shall not require such Lender to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any action
inconsistent with its internal policies or legal or regulatory restrictions or
suffer any disadvantage or burden deemed by it to be significant) (x) to file
any certificate or document reasonably requested in writing by the Borrower or
(y) to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would materially reduce its claims for compensation under Section 2.14 or enable
it to withdraw its notice pursuant to Section 2.15 or would materially reduce
amounts payable pursuant to Section 2.20, as the case may be, in the future. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such filing or assignment, delegation and
transfer.
SECTION 2.22. Pro Rata Treatment of Loans and Existing Term Loans.
Notwithstanding any other provision herein, any funds to be used to prepay Loans
pursuant to Section 2.12 or 2.13 shall be allocated pro rata between the Loans
and the Existing Term Loans based upon the aggregate outstanding principal
amount of the Loans and Existing Term Loans on the date of prepayment. The
Lenders shall also be entitled to share pro rata in any prepayments of the type
described in Section 2.12 or 2.13 that are made to Existing Lenders pursuant to
the Existing Credit Agreement. The pro rata amount allocated to Loans in
accordance with this Section 2.22 shall be applied as otherwise required by this
Agreement.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Collateral Agent and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Subsidiaries (a) is a corporation or partnership duly incorporated or formed, as
the case may be, validly existing and in good standing (if applicable) under the
laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated hereby to which it is or will be a party and, in the case of the
Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents, the consummation of the
Powerscreen Acquisition and the borrowings hereunder (collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, (B) the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or any
Subsidiary, (C) any order of any Governmental Authority applicable to the
Borrower or such Subsidiary or (D) any provision of any indenture, agreement or
other instrument to which the Borrower or any Subsidiary is a party or by which
any of them or any of their property is or may be bound, (ii) result in a breach
of or constitute (alone or with notice or lapse of time or both) a default
under, or give rise to any right to accelerate or to require the prepayment,
repurchase or redemption of any obligation under any such indenture, agreement
or other instrument, except, in the case of each of clause (i)(A), (i)(D) and
(ii), where such violation, breach or default could not reasonably be expected
to result in a Material Adverse Effect or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by the Borrower or any Subsidiary (other than any Lien
created hereunder or under the Security Documents).
SECTION 3.03. Enforceability. Each Loan Document has been duly executed and
delivered by each Loan Party party thereto and constitutes a legal, valid and
binding obligation of such Loan Party enforceable against such Loan Party in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (a) the
consent or approval of any Governmental Authority generally charged with
enforcing antitrust and competition laws and regulations, (b) recordation of
amendments of, or modifications to, the Mortgages and (c) such as have been made
or obtained and are in full force and effect, except where the failure to obtain
the same could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore made
available to the Lenders (i) its consolidated balance sheets and statements of
income and changes in financial condition as of and for each of the fiscal years
ended December 31, 1996, December 31, 1997 and December 31, 1998, audited by and
accompanied by the opinion of PricewaterhouseCoopers LLP, independent public
accountants, and as of and for the fiscal quarter ended March 30, 1999,
certified by a Financial Officer of the Borrower, and (ii) (A) Powerscreen's
consolidated balance sheets and statements of income and changes in financial
condition as of and for each of the fiscal years ended March 31, 1997 and March
31, 1998, audited by and accompanied by the opinion of KPMG, chartered
accountants, (B) Powerscreen's balance sheet and statement of income and changes
in financial condition as of and for the six month interim period ended
September 30, 1998, audited by and accompanied by the opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, independent public accountants, and (C) Powerscreen's preliminary and
unaudited balance sheet and statement of income and changes in financial
condition as of and for the fiscal year ended March 31, 1999. In the case of the
Borrower's financial statements, such financial statements present fairly in all
material respects the financial condition and results of operations and cash
flows of the Borrower and the consolidated Subsidiaries as of such dates and for
such periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of the Borrower and the consolidated
Subsidiaries as of the dates thereof required to be reflected in accordance with
GAAP. Such financial statements were prepared in accordance with GAAP applied on
a consistent basis. The Borrower has examined Powerscreen's financial statements
and has no reason to suspect that such financial statements do not present
fairly in all material respects the financial condition and results of
operations and cash flows of Powerscreen and its consolidated subsidiaries as of
such dates and for such periods.
(b) The Borrower has heretofore delivered to the Lenders its unaudited pro
forma consolidated balance sheet as of March 30, 1999, prepared giving effect to
the Powerscreen Acquisition as if it had occurred on such date. Such pro forma
balance sheet has been prepared in good faith by or on behalf of the Borrower,
based on the assumptions previously provided to the Administrative Agent (which
assumptions are believed by the Borrower on the Effective Date to be
reasonable), is based on the best information available to the Borrower as of
the date of delivery thereof, accurately reflects all adjustments required to be
made to give effect to the Powerscreen Acquisition and presents fairly on a pro
forma basis the estimated consolidated financial position of the Borrower and
the consolidated Subsidiaries as of such date, assuming that the Powerscreen
Acquisition had actually occurred at such date.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of the Borrower and its
Subsidiaries, taken as a whole, since December 31, 1998.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of the
Borrower and its Subsidiaries has fee title to, or valid leasehold interests in,
all its material properties and assets (including all Mortgaged Property),
except for defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties and assets for
their intended purposes. All such material properties and assets are free and
clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of the Borrower and its Subsidiaries has complied in all material
respects with all obligations under all material leases to which it is a party
and all such leases are in full force and effect. Each of the Borrower and its
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) The Borrower has not received any written notice of, nor has any
knowledge of, any pending or contemplated condemnation proceeding affecting the
Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) Neither the Borrower nor any of its Subsidiaries is obligated under any
right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Effective
Date a list of all Subsidiaries and the percentage ownership interest of the
Borrower therein. The shares of capital stock or other ownership interests so
indicated on Schedule 3.08 are fully paid and non assessable and are owned by
the Borrower, directly or indirectly through its Subsidiaries, free and clear of
all Liens, except for Liens created under the Security Documents. Each Inactive
Subsidiary (a) owns assets having a fair market value not in excess of $50,000
in the aggregate, (b) does not conduct any business activity and (c) is not an
obligor with respect to any Indebtedness.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on
Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries or any business, property or rights of any such person (i)
that involve any Loan Document or the Transactions or (ii) as to which there is
a reasonable possibility of an adverse determination and that, if adversely
determined in the ordinary course of such action, suit or proceeding, at the
time of such determination, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) None of the Borrower or any of its Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
(c) Certificates of occupancy and permits are in effect for each Mortgaged
Property as currently constructed, except where the failure to have the same
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. (a) Neither the Borrower nor any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in default in any
manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) Neither the Borrower nor any
of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any purpose
that entails a violation of, or that is inconsistent with, the provisions of the
regulations of the Board, including Regulation T, U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the
Loans only for the purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all Federal, state, local and foreign tax returns or
materials required to have been filed by it and has paid or caused to be paid
all taxes due and payable by it and all assessments received by it (in each case
giving effect to applicable extensions), except taxes that are being contested
in good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, shall have set aside on its books reserves in
accordance with GAAP.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Borrower in
writing to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, the Borrower represents only that it acted
in good faith and utilized assumptions believed by it to be reasonable and due
care in the preparation of such information, report, financial statement,
exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. (a) Each of the Borrower and its
respective ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of December 31, 1998, exceed by more than
$3,400,000 the fair market value of the assets of such Plan, and the present
value of all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan) did not, as of December 31, 1998,
exceed by more than $5,200,000 the fair market value of the assets of all such
underfunded Plans.
(b) Each Foreign Pension Plan is in compliance in all material respects
with all requirements of law applicable thereto and the respective requirements
of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of the Borrower, its
Affiliates or any of its directors, officers, employees or agents has engaged in
a transaction which would subject the Borrower or any of its Subsidiaries,
directly or indirectly, to a material tax or civil penalty. With respect to each
Foreign Pension Plan, reserves have been established in the financial statements
furnished to Lenders in respect of any unfunded liabilities in accordance with
applicable law and prudent business practice or, where required, in accordance
with ordinary accounting practices in the jurisdiction in which such Foreign
Pension Plan is maintained. The aggregate unfunded liabilities, with respect to
such Foreign Pension Plans could not reasonably be expected to result in a
Material Adverse Effect. There are no actions, suits or claims (other than
routine claims for benefits) pending or threatened against the Borrower or any
of its Affiliates with respect to any Foreign Pension Plan which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
SECTION 3.17. Environmental Matters. (a) The properties owned, leased or
operated by each of the Borrower and its Subsidiaries (the "Properties") do not
contain any Hazardous Materials in amounts or concentrations which (i)
constitute, or constituted a violation of, (ii) require Remedial Action under,
or (iii) could give rise to liability under, Environmental Laws, which
violations, Remedial Actions and liabilities, in the aggregate, could reasonably
be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of each of the Borrower and its
Subsidiaries are in compliance in all material respects, and in the last five
years have been in compliance, with all Environmental Laws, and all necessary
Environmental Permits have been obtained and are in effect, except to the extent
that such non-compliance or failure to obtain any necessary permits, in the
aggregate, could reasonably be expected to not result in a Material Adverse
Effect;
(c) There have been no Releases or threatened Releases at, from, under or
proximate to the Properties or otherwise in connection with the current or
former operations of the Borrower or its Subsidiaries, which Releases or
threatened Releases, in the aggregate, could reasonably be expected to result in
a Material Adverse Effect;
(d) Neither the Borrower nor any of its Subsidiaries has received any
notice of an Environmental Claim in connection with the Properties or the
current or former operations of the Borrower or such Subsidiaries or with regard
to any person whose liabilities for environmental matters the Borrower or such
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, nor do the Borrower or its
Subsidiaries have reason to believe that any such notice will be received or is
being threatened; and
(e) Hazardous Materials have not been transported from the Properties, nor
have Hazardous Materials been generated, treated, stored or disposed of at, on
or under any of the Properties in a manner that could give rise to liability
under any Environmental Law, nor have the Borrower or its Subsidiaries retained
or assumed any liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which liabilities, in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or any of its
Subsidiaries as of the Effective Date. As of such date, such insurance is in
full force and effect and all premiums have been duly paid. Each of the Borrower
and its Subsidiaries has insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, with respect to all Collateral previously
delivered to and in the possession of the Collateral Agent, constitutes, or in
the case of Collateral to be delivered in the future, will constitute, a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, together with the financing statements previously filed or to be
filed in the future, constitutes, or in the case of any future filing, will
constitute, a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such Collateral (other than the
Intellectual Property, as defined in the Security Agreement), in each case prior
and superior in right to any other person, other than with respect to Liens
expressly permitted by Section 6.02.
(c) The Security Agreement currently on file in the United States Patent
and Trademark Office and the United States Copyright Office constitutes a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Intellectual Property (as defined in the Security
Agreement), in each case prior and superior in right to any other person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the grantors after the Effective Date).
(d) The Mortgages are effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties, a legal, valid and enforceable
Lien on all of the Loan Parties' right, title and interest in and to the
Mortgaged Property thereunder and the proceeds thereof, and constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Mortgaged Property and the proceeds thereof, in each
case prior and superior in right to any other person, other than with respect to
the rights of persons pursuant to Liens expressly permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a) Schedule
3.20(a) lists completely and correctly as of the Effective Date all real
property owned by the Borrower and the Subsidiaries and the addresses thereof.
The Borrower and the Subsidiaries own in fee all the real property set forth on
Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the Effective
Date all real property leased by the Borrower and the Subsidiaries and the
addresses thereof. The Borrower and the Subsidiaries have valid leases in all
the real property set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters. As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened. The hours worked by
and payments made to employees of the Borrower and its Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters. All payments due
from the Borrower or any of its Subsidiaries, or for which any claim may be made
against the Borrower or any such Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Borrower or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Borrower or any of its Subsidiaries is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions and following the making of each Loan and after giving effect to
the application of the proceeds of such Loan, (a) the fair value of the assets
of the Loan Parties, at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Loan Parties will be greater than the
amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) each Loan Party will
not have unreasonably small capital with which to conduct the business in which
it is engaged as such business is conducted as of the Effective Date and is
proposed to be conducted following the consummation of the Transactions.
SECTION 3.23. Year 2000. All disclosures in the Borrower's latest Form 10-Q
relating to the Borrower's efforts to modify its computer and information
systems and systems containing embedded microchips in order to address Year 2000
compliance, and any risks associated therewith, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein not materially misleading in the light
of the circumstances under which such statements were made.
SECTION 3.24. Offer Documents. Attached hereto as Schedule 3.24(a) is a
true and correct copy of the Press Release, and attached hereto as Schedule
3.24(b) is a true and correct copy of the definitive documentation for the Offer
(the "Offer Document"). The Offer Document and any other documents relating to
the Offer furnished to the Lenders contain all the material terms and conditions
of the Offer to the extent required by applicable law, rule or regulation and
correspond to the terms and conditions contained in the Press Release in all
material respects.
ARTICLE IV
Conditions of Lending
SECTION 4.01. Conditions Precedent to Effectiveness. The effectiveness of
this Agreement shall be subject to the satisfaction of each of the following
conditions:
(a) The Administrative Agent shall have received, on behalf of itself,
the Collateral Agent and the Lenders, a favorable written opinion of ▇▇▇▇
▇▇▇▇▇, Esq., General Counsel of the Borrower, substantially to the effect
set forth in Exhibit D, dated the Effective Date.
(b) All legal matters incident to this Agreement and the other Loan
Documents shall be reasonably satisfactory to the Lenders and to the
Administrative Agent.
(c) The Administrative Agent shall have received (i) a certificate as
to the good standing of each Loan Party, as of a recent date, from the
applicable Governmental Authority; (ii) a certificate of the Secretary or
Assistant Secretary of each Loan Party, dated the Effective Date, and
certifying (A) that there has been no amendment to the by-laws of such Loan
Party since a date satisfactory to the Administrative Agent, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by
the board of directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents and, in the case of the
Borrower, the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that
the articles of incorporation of such Loan Party have not been amended
since the date of the last amendment thereto shown on the certificate of
good standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf
of such Loan Party; and (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above.
(d) The Administrative Agent shall have received a certificate, signed
by a Financial Officer of the Borrower, dated the Effective Date, and
confirming that (i) the representations and warranties set forth in Article
III hereof are true and correct in all material respects, (ii) the Borrower
and each other Loan Party is in compliance with the terms and provisions
set forth herein and in each other Loan Document to be observed or
performed by the Borrower or such Loan Party and (iii) no Default or Event
of Default has occurred and is continuing.
(e) Each Loan Document other than this Agreement shall be in full
force and effect.
(f) Amendment No. 4 and Consent to the Existing Credit Agreement shall
have become effective.
(g) All commitments to provide loans under the Senior Subordinated
Credit Agreement dated as of June 14, 1999, among the Borrower, the lenders
party thereto and CSFB, as administrative agent for such lenders, shall
simultaneously be irrevocably terminated.
(h) The Lenders shall have received the consolidated historical and
pro forma financial statements described in Section 3.05.
SECTION 4.02. Conditions Precedent to Each Acquisition Borrowing. The
obligations of the Lenders to make Loans hereunder, the proceeds of which are to
be used to finance either the acquisition of Shares or payments to holders of
options over Shares, are subject to the satisfaction of the following conditions
on the date of each such Borrowing (with such conditions being the only
conditions applicable):
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03, and, with respect to the
initial Borrowing, such notice shall include, in addition to the amount
necessary to finance the acquisition of Shares and/or payments to
holders of options over Shares, an additional amount sufficient to
fully pay any Arrangement and Administrative Fees due and payable upon
such Borrowing and, to the extent invoiced, all out-of-pocket expenses
incurred by the Administrative Agent or the Arrangers (in their
capacities as arrangers of the financing for the Powerscreen
Acquisition), including the fees and expenses of counsel incurred in
connection with the Transactions or pursuant to the Existing Credit
Agreement.
(b) At the time of and immediately after such Borrowing, (i)
no Event of Default described in clause (b), (c), (g) or (h) of Section
8.01 shall have occurred and be continuing with respect to the
Borrower, (ii) no Event of Default described in clause (g) or (h) of
Section 8.01 shall have occurred and be continuing with respect to
Bidco and (iii) no event of the type described in clause (g) and (h) of
Section 8.01 shall have occurred with respect to Powerscreen or any of
its subsidiaries that would be deemed to be a Significant Subsidiary if
such subsidiary were a subsidiary of the Borrower; provided, however,
that this clause (iii) shall not apply where Bidco is not permitted to
lapse the Offer as a result of such event having occurred with respect
to Powerscreen or any of its Significant Subsidiaries.
(c) The representations and warranties set forth in Sections
3.01, 3.02 and 3.03, as they relate to the Borrower and Bidco, shall be
true and correct in all material respects on the date of any such
Borrowing with the same effect as though made on such date.
(d) Each of the Offer Conditions Precedent, unless waived in
writing by the Borrower, Bidco and the Required Lenders, shall have
been satisfied.
On the date of each such Borrowing, the Borrower shall be deemed to have made a
representation and warranty as to each of the facts specified in clauses (b),
(c) and (d) of this Section 4.02.
SECTION 4.03. Conditions Precedent to Other Borrowings. The obligations of
the Lenders to make Loans hereunder, the proceeds of which are to be used other
than as described in first sentence of Section 4.02, are subject to the
satisfaction of the following conditions on the date of each such Borrowing:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of
such Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate
to an earlier date.
(c) The Borrower and each other Loan Party shall be in compliance with
all the terms and provisions set forth herein and in each other Loan
Document on its part to be observed or performed, and at the time of and
immediately after such Borrowing, no Event of Default or Default shall have
occurred and be continuing.
(d) The initial Borrowing pursuant to Section 4.02 shall have
occurred.
On the date of each such Borrowing, the Borrower shall be deemed to have
made a representation and warranty as to each of the facts specified in clauses
(b), (c) and (d) of this Section 4.03.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan and all Fees and all other
expenses or amounts payable under any Loan Document shall have been paid in
full, unless the Required Lenders shall otherwise consent in writing, the
Borrower will, and will cause each of its Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated or in
an otherwise prudent manner; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Mortgaged Properties) and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted unless
failure to comply could not reasonably be expected to result in a Material
Adverse Effect; and at all times maintain and preserve all property material to
the conduct of such business and keep such property in working order and
condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
conducted at all times in a commercially reasonably manner.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance (including self insurance), to such extent and against such
risks, including fire and other risks insured against by extended coverage, as
is customary with companies in the same or similar businesses operating in the
same or similar locations and of same or similar size, including public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it; and maintain such other insurance as may be
required by law.
(b) Cause all such policies of the Borrower or any Domestic Subsidiary to
be endorsed or otherwise amended to include a "standard" or "New York" lender's
loss payable endorsement, in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent, which endorsement shall provide
that, from and after the Effective Date, if the insurance carrier shall have
received written notice from the Administrative Agent or the Collateral Agent of
the occurrence of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to the Borrower or any such Loan Parties under such
policies directly to the Collateral Agent; cause all such policies to provide
that no Borrower, the Administrative Agent, the Collateral Agent nor any other
party shall be a coinsurer thereunder and to contain a "Replacement Cost
Endorsement", without any deduction for depreciation, and such other provisions
as the Administrative Agent or the Collateral Agent may reasonably require from
time to time to protect their interests; deliver original or certified copies of
all such policies to the Collateral Agent; cause each such policy to provide
that it shall not be canceled, modified or not renewed for any other reason upon
not less than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent; deliver to the Administrative
Agent and the Collateral Agent, prior to the cancelation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent) together with evidence
satisfactory to the Administrative Agent and the Collateral Agent of payment of
the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance Program
as set forth in the Flood Disaster Protection Act of 1973, as it may be amended
from time to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the Required
Lenders may from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than that in effect on the Effective Date, naming
the Collateral Agent as an additional insured, on forms reasonably satisfactory
to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent immediately
whenever any separate insurance concurrent in form or contributing in the event
of loss with that required to be maintained under this Section 5.02 is taken out
by the Borrower; and promptly deliver to the Administrative Agent and the
Collateral Agent a duplicate original copy of such policy or policies.
(f) In connection with the covenants set forth in this Section 5.02, it is
understood and agreed that:
(i) none of the Administrative Agent, the Lenders or their
respective agents or employees shall be liable for any loss or damage
insured by the insurance policies required to be maintained under this
Section 5.02, it being understood that (A) the Borrower and the other
Loan Parties shall look solely to their insurance companies or any
other parties other than the aforesaid parties for the recovery of such
loss or damage and (B) such insurance companies shall have no rights of
subrogation against the Administrative Agent, the Collateral Agent, the
Lenders or their agents or employees. If, however, the insurance
policies do not provide waiver of subrogation rights against such
parties, as required above, then the Borrower hereby agrees, to the
extent permitted by law, to waive its right of recovery, if any,
against the Administrative Agent, the Collateral Agent, the Lenders and
their agents and employees; and
(ii) the designation of any form, type or amount of insurance
coverage by the Administrative Agent, the Collateral Agent or the
Required Lenders under this Section 5.02 shall in no event be deemed a
representation, warranty or advice by the Administrative Agent, the
Collateral Agent or the Lenders that such insurance is adequate for the
purposes of the business of the Borrower and its Subsidiaries or the
protection of their properties and the Administrative Agent, the
Collateral Agent and the Required Lenders shall have the right from
time to time to require the Borrower and the other Loan Parties to keep
other insurance in such form and amount as the Administrative Agent,
the Collateral Agent or the Required Lenders may reasonably request;
provided that such insurance shall be obtainable on commercially
reasonable terms.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, could
reasonably be expected to give rise to a Lien upon such properties or any part
thereof; provided, however, that such payment and discharge shall not be
required with respect to any such obligation, tax, assessment, charge, levy or
claim so long as the validity or amount thereof shall be contested in good faith
by appropriate proceedings and the Borrower shall have set aside on its books
reserves with respect thereto in accordance with GAAP and such contest operates
to suspend collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien and, in the case of a Mortgaged Property, there is no risk
of forfeiture of such property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent for distribution by the
Administrative Agent to each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
operations, stockholders' equity and cash flows showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the
operations of such Subsidiaries during such year, all audited by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing or otherwise reasonably acceptable to the
Required Lenders and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect
that such consolidated financial statements fairly present the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated and consolidating
balance sheets and related statements of operations, stockholders'
equity and cash flows showing the financial condition of the Borrower
and its consolidated Subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations of such
Subsidiaries during such fiscal quarter and the then elapsed portion of
the fiscal year, all certified by one of its Financial Officers as
fairly presenting in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements
under sub-paragraph (a) or (b) above, a certificate of the accounting
firm (unless at such time it is the practice and policy of such
accounting firm not to deliver such certificates) or Financial Officer
opining on or certifying such statements (which certificate, when
furnished by an accounting firm, may be limited to accounting matters
and disclaim responsibility for legal interpretations) (i) certifying
that no Event of Default or Default has occurred or, if such an Event
of Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with
respect thereto; and (ii) in the case of any such letter from such
Financial Officer, setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.10, 6.11, 6.12 and 6.13;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be;
(e) as promptly as practicable, but in no event later than 10
Business Days after the last day of each fiscal year of the Borrower, a
copy of the budget for its consolidated balance sheet and related
statements of income and selected working capital and capital
expenditure analyses for each quarter of the following fiscal year; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any Subsidiary, or compliance with the terms of any
Loan Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative
Agent and each Lender, promptly after obtaining knowledge thereof, written
notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development with respect to the Borrower or any
Subsidiary that has resulted in, or could reasonably be expected to
result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects with
the applicable provisions of ERISA and the Code and the laws applicable to any
Foreign Benefit Plan and (b) furnish to the Administrative Agent (i) as soon as
possible after, and in any event within 10 days after any Responsible Officer of
the Borrower or any Affiliate knows that any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of the Borrower in an aggregate amount exceeding $5,000,000
(or the dollar equivalent thereof in another currency), a statement of a
Financial Officer of the Borrower setting forth details as to such ERISA Event
and the action, if any, that the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.
Keep proper books of record and account in which full, true and correct entries
in conformity in all material respects with GAAP and all requirements of law are
made of all dealings and transactions in relation to its business and
activities. Each Loan Party will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender
to visit and inspect the financial records and the properties of the Borrower or
any Subsidiary at reasonable times and as often as reasonably requested (but in
no event more than twice annually unless an Event of Default shall have occurred
and be continuing) and to make extracts from and copies of such financial
records, and permit any representatives designated by the Administrative Agent
or any Lender to discuss the affairs, finances and condition of the Borrower or
any Subsidiary with the officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only for the
purposes set forth in the preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action in accordance
with Environmental Laws; provided, however, that the Borrower and the
Subsidiaries shall not be required to undertake any Remedial Action to the
extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to
such circumstances in accordance with GAAP.
SECTION 5.10. Preparation of Environmental Reports. If an Event of Default
caused by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default, prepared by an environmental consulting
firm reasonably acceptable to the Administrative Agent and indicating the
presence or absence of Hazardous Materials and the estimated cost of any
Remedial Action or any other activity required to bring the Properties into
compliance with Environmental Laws in connection with such Properties.
SECTION 5.11. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. The Borrower will cause any
subsequently acquired or organized Domestic Subsidiary (other than an Inactive
Subsidiary) to execute a supplement to the Subsidiary Guarantee Agreement, the
Indemnity Subrogation and Contribution Agreement and each applicable Security
Document in favor of the Collateral Agent. In addition, from time to time, the
Borrower will, at its cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected security
interests with respect to such of its assets and properties as the
Administrative Agent or the Required Lenders shall reasonably designate (it
being understood that it is the intent of the parties that the Obligations shall
be secured by, among other things, substantially all the assets of the Borrower
(including real and other properties acquired subsequent to the Effective
Date)). Such security interests and Liens will be created under the Security
Documents and other security agreements, mortgages, deeds of trust and other
instruments and documents in form and substance reasonably satisfactory to the
Collateral Agent, and the Borrower shall deliver or cause to be delivered to the
Lenders all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Collateral Agent shall reasonably
request to evidence compliance with this Section.
(b) In the case of the Borrower and the Subsidiary Guarantors, promptly to
notify the Collateral Agent in writing of any change (i) in its corporate name
or in any trade name used to identify it in the conduct of its business or in
the ownership of its properties, (ii) in the location of its chief executive
office, its principal place of business, any office in which it maintains books
or records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility), (iii) in its identity or corporate structure or (iv) in its
Federal Taxpayer Identification Number. The Borrower and each Subsidiary
Guarantor agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent to continue at all
times following such change to have a valid, legal and perfected first priority
security interest in all the Collateral. The Borrower and each Subsidiary
Guarantor agrees promptly to notify the Collateral Agent if any material portion
of the Collateral owned or held by the Borrower is damaged or destroyed.
SECTION 5.12. Interest Rate Protection Agreements. In the case of the
Borrower, within 90 days following the initial Borrowing, enter into Interest
Rate Protection Agreements, with counterparties and on terms and conditions
reasonably satisfactory to the Administrative Agent, pursuant to which the
interest rate is fixed with respect to a notional amount equal to at least 50%
of the sum of (a) the Loans, (b) the Existing Term Loans and (c) the Senior
Subordinated Notes and any Additional Subordinated Notes outstanding on such
date.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan and all Fees and all other
expenses or amounts payable under any Loan Document have been paid in full,
unless the Required Lenders shall otherwise consent in writing, the Borrower
will not, and will not cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except that the Borrower and any Subsidiary (other than an
Inactive Subsidiary) may incur, create, assume or permit to exist:
(a) Indebtedness for borrowed money set forth in Schedule 6.01 to the
Existing Credit Agreement and outstanding on the Effective Date;
(b) Indebtedness created hereunder, under the Existing Credit
Agreement and under the other Loan Documents; provided, however, that the
sum of the Existing Loans and the aggregate available commitments under the
Existing Credit Agreement shall not exceed $468,000,000 at any time;
(c) in the case of the Borrower, the Senior Subordinated Notes and
Additional Subordinated Notes; provided that the proceeds of any Additional
Subordinated Notes are used to prepay the Loans pursuant to Section 2.13(c)
or to finance Permitted Acquisitions;
(d) Indebtedness pursuant to (i) Hedging Agreements and (ii) the
Additional L/C Facility; provided, however, that the Additional L/C
Exposure shall not exceed $50,000,000 at any time;
(e) Indebtedness of the Borrower or any wholly owned Subsidiary (other
than an Inactive Subsidiary) to any other wholly owned Subsidiary (other
than an Inactive Subsidiary), or of any wholly owned Subsidiary (other than
an Inactive Subsidiary) to the Borrower; provided that any such
Indebtedness of a Loan Party shall be subordinated to the prior payment in
full of the Obligations;
(f) Indebtedness resulting from endorsement of negotiable instruments
for collection in the ordinary course of business;
(g) Indebtedness arising under indemnity agreements to title insurers
to cause such title insurers to issue to the Collateral Agent mortgagee
title insurance policies;
(h) Indebtedness arising with respect to customary indemnification and
purchase price adjustment obligations incurred in connection with Asset
Sales and Permitted Acquisitions permitted hereunder;
(i) Indebtedness incurred in the ordinary course of business with
respect to surety and appeal bonds, performance, insurance and
return-of-money bonds and other similar obligations;
(j) Indebtedness consisting of (i) Acquired Indebtedness or (ii)
Purchase Money Indebtedness or Capital Lease Obligations incurred in the
ordinary course of business; provided that the aggregate principal amount
of any such Indebtedness pursuant to this paragraph (j) shall not exceed
$85,000,000;
(k) Indebtedness of O&K Mining GmbH; provided that the aggregate
principal amount of any such Indebtedness pursuant to this paragraph (k)
shall not exceed DM17,500,000;
(l) Floor Plan Guarantees;
(m) Indebtedness incurred under (i) the Italian Facilities in an
amount not exceeding Lit12,850,000,000 in the aggregate at any time
outstanding and (ii) the Irish Facilities in an amount not exceeding
(pound)10,000,000 in the aggregate at any time outstanding;
(n) Indebtedness incurred to extend, renew or refinance Indebtedness
described in paragraph (a), (c), (j), (k) or (l) above ("Refinancing
Indebtedness") so long as (i) such Refinancing Indebtedness is in an
aggregate principal amount not greater than the aggregate principal amount
of the Indebtedness being extended, renewed or refinanced, plus the amount
of any interest or premiums required to be paid thereon plus fees and
expenses associated therewith, (ii) such Refinancing Indebtedness has a
later or equal final maturity and a longer or equal weighted average life
than the Indebtedness being extended, renewed or refinanced, (iii) if the
Indebtedness being extended, renewed or refinanced is subordinated to the
Obligations, the Refinancing Indebtedness is subordinated to the
Obligations to the extent of the Indebtedness being extended, renewed or
refinanced and (iv) the covenants, events of default and other non-pricing
provisions of the Refinancing Indebtedness shall be no less favorable to
the Lenders than those contained in the Indebtedness being extended,
renewed or refinanced;
(o) Indebtedness classified as Capital Lease Obligations incurred in
connection with the purchase of inventory to be sold in the ordinary course
of business; and
(p) other unsecured Indebtedness in an aggregate principal amount not
exceeding $15,000,000 at any time outstanding.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
as set forth in Schedule 6.02 to the Existing Credit Agreement and existing
on the Effective Date; provided that such Liens shall secure only those
obligations which they secure on the Effective Date;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition, (ii) such Lien does not apply to any other property or assets
of the Borrower or any Subsidiary and (iii) such Lien does not (A)
materially interfere with the use, occupancy and operation of any Mortgaged
Property, (B) materially reduce the fair market value of such Mortgaged
Property but for such Lien or (C) result in any material increase in the
cost of operating, occupying or owning or leasing such Mortgaged Property;
(d) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(g) (i) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business and (ii) Liens on the receivables of Terex Equipment
Limited to secure Indebtedness of Terex Equipment Limited in respect of
performance bonds and similar obligations in an aggregate principal amount
not to exceed (pound)3,000,000;
(h) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount
and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary (other than an Inactive
Subsidiary) or in respect of Capital Lease Obligations; provided that (i)
such security interests secure Indebtedness permitted by Section 6.01(j),
(ii) such security interests are incurred, and the Indebtedness secured
thereby is created, within 90 days after such acquisition (or
construction), (iii) the Indebtedness secured thereby does not exceed 100%
of the lesser of the cost or the fair market value of such real property,
improvements or equipment at the time of such acquisition (or construction)
and (iv) such security interests do not apply to any other property or
assets of the Borrower or any Subsidiary;
(j) Liens arising from the rendering of a final judgment or order that
does not give rise to an Event of Default;
(k) Liens securing Acquired Indebtedness; provided that (i) such
Acquired Indebtedness was secured by such Liens at the time of the relevant
Permitted Acquisition and such Liens were not incurred in contemplation
thereof and (ii) such Liens do not extend to (x) any property of the
Borrower or the Subsidiaries (other than the Acquired Person) or (y) to any
property of the Acquired Person other than the property securing such Liens
on the date of the relevant Permitted Acquisition;
(l) Liens securing Refinancing Indebtedness, to the extent that the
Indebtedness being refinanced was originally secured in accordance with
this Section 6.02; provided that such Lien does not apply to any additional
property or assets of the Borrower or any Subsidiary;
(m) Liens in favor of the Borrower; and
(n) Liens on the assets of Powerscreen with a fair market value not in
excess of the amount reasonably required to fully secure the Irish
Facilities.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred (a "Sale and Leaseback"); provided that the
Borrower or any Subsidiary may enter into any such transaction to the extent
that the Capital Lease Obligations and Liens associated therewith would be
permitted under this Agreement.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire
any capital stock, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by the Borrower and its Subsidiaries existing on the
Effective Date in the capital stock of the Subsidiaries and other
investments by the Borrower and its Subsidiaries existing on the Effective
Date and set forth in Schedule 6.04 to the Existing Credit Agreement;
(b) Permitted Investments;
(c) the Borrower may make the Powerscreen Acquisition; provided,
however, that the Borrower complies with, and causes Bidco and/or
Powerscreen to comply with, the relevant provisions of Sections 5.11,
Article VII and the Security Documents;
(d) the Borrower may make any Permitted Acquisition; provided that the
Borrower complies, and causes any acquired entity to comply, with the
applicable provisions of Section 5.11 and the Security Documents with
respect to the person or assets so acquired;
(e) the Borrower and the Subsidiaries (other than Inactive
Subsidiaries) may make loans and advances to employees for moving,
entertainment, travel and other similar expenses in the ordinary course of
business not to exceed $1,000,000 in the aggregate at any time outstanding;
(f) Consolidated Capital Expenditures permitted pursuant to Section
6.10;
(g) cash collateral provided to the Collateral Agent pursuant to the
Loan Documents;
(h) promissory notes issued by any purchaser in connection with any
Asset Sale permitted pursuant to Section 6.05(b);
(i) provided that no Default or Event of Default shall have occurred
and be continuing at the time of such payment or after giving effect
thereto, (A) the purchase by the Borrower of shares of its common stock
(for not more than fair market value) in connection with the delivery of
such stock to grantees under any stock option plan (upon the exercise by
such grantees of their stock options) or any other deferred compensation
plan of the Borrower approved by the board of directors of the Borrower and
(B) the repurchase of shares of, or options to purchase shares of, common
stock of the Borrower or any of its Subsidiaries from employees, former
employees, directors or former directors of the Borrower or any of its
Subsidiaries (or permitted transferees of such employees, former employees,
directors or former directors) pursuant to the terms of the agreements
(including employment agreements) or plans (or amendments thereto) approved
by the board of directors of the Borrower under which such individuals
purchase or sell or are granted the option to purchase or sell, such common
stock; provided that the aggregate amount of all such purchases and
repurchases permitted under this paragraph (i) shall not exceed $2,400,000
per year or $16,800,000 in the aggregate during the term of this Agreement;
(j) accounts receivable arising in the ordinary course of business
from the sale of inventory;
(k) Guarantees constituting Indebtedness permitted by Section 6.01;
(l) investments in joint ventures in Related Businesses in an
aggregate amount not exceeding $15,000,000 at any time outstanding;
(m) intercompany loans and advances constituting Indebtedness
permitted by Section 6.01(e); and
(n) other investments in an aggregate amount not exceeding $25,000,000
at any time outstanding.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other person, or
permit any other person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or any substantial part of its assets (whether now
owned or hereafter acquired) or any capital stock of any Subsidiary, or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or substantially all of the assets of any other person,
except that (i) the Borrower and any Subsidiary (other than an Inactive
Subsidiary) may purchase and sell inventory in the ordinary course of
business and (ii) if at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be
continuing (A) any wholly owned Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (B) any
wholly owned Subsidiary may merge into or consolidate with any other wholly
owned Subsidiary that is a Subsidiary Guarantor in a transaction in which
the surviving entity is a wholly owned Subsidiary that is a Subsidiary
Guarantor and no person other than the Borrower or a wholly owned
Subsidiary that is a Subsidiary Guarantor receives any consideration, (C)
in connection with any Permitted Acquisition pursuant to Section 6.04(d),
the Borrower or any wholly owned Subsidiary that is a Subsidiary Guarantor
may acquire or merge into or consolidate with any entity acquired pursuant
to such Permitted Acquisition in a transaction in which the surviving
entity is the Borrower or a wholly owned Subsidiary that is a Subsidiary
Guarantor and (D) following the initial Borrowing, the Borrower may
contribute, or otherwise transfer, all of the equity in Terex Equipment
Limited (other than directors' qualifying shares) to Bidco.
(b) Engage in any Asset Sale not otherwise prohibited by Section
6.05(a) unless all of the following conditions are met: (i) the
consideration received is at least equal to the fair market value of such
assets; (ii) at least 80% of the consideration received is cash; (iii) the
Net Cash Proceeds of such Asset Sale are applied as required by Section
2.13(a); (iv) after giving effect to the sale or other disposition of the
assets included within the Asset Sale and the repayment of Indebtedness
with the proceeds thereof, the Borrower is in compliance on a pro forma
basis with the covenants set forth in Sections 6.11, 6.12 and 6.13
recomputed for the most recently ended fiscal quarter for which information
is available and is in compliance with all other terms and conditions
contained in this Agreement; and (v) no Default or Event of Default shall
result from such Asset Sale.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly,
any dividend or make any other distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its capital stock or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Subsidiary to purchase or acquire) any shares of any class of its capital
stock or set aside any amount for any such purpose; provided, however, that
(i) any Subsidiary may declare and pay dividends or make other
distributions ratably with respect to its capital stock and (ii) the
Borrower may pay dividends on, and redeem and repurchase its capital stock,
provided that all of the following conditions are satisfied: (A) at the
time of such dividend, redemption or purchase and after giving effect
thereto, no Default or Event of Default has occurred and is continuing or
would arise as a result thereof; (B) the amount of all dividends,
redemptions and purchases made pursuant to this clause (ii) together with
all distributions and payments made pursuant to Section 6.09(b)(i), during
the term of this Agreement shall not exceed $25,000,000, and (c) on a pro
forma basis and after giving effect to such payment and all other payments
pursuant to this clause (a) and Section 6.09(b)(i) made after the last day
of the most recent fiscal quarter for which financial statements have been
delivered pursuant to Section 5.04(a) or (b), as applicable, as if such
payments were made in the four-fiscal-quarter period ending on such last
day of such fiscal quarter, the Consolidated Leverage Ratio as of the end
of such four-fiscal-quarter period shall be less than 3.85 to 1.00 and
provided further that the Borrower may at any time pay dividends with
respect to its capital stock solely in additional shares of its capital
stock.
(b) Permit its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay any dividends
or make any other distributions on its capital stock or any other interest
or (ii) make or repay any loans or advances to the Borrower or the parent
of such Subsidiary.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except that the Borrower or any Subsidiary may engage in any of the
foregoing transactions in the ordinary course of business at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third
parties, and except that this Section shall not apply to any transaction
between or among the Borrower and the Subsidiary Guarantors.
SECTION 6.08. Business of the Borrower and Subsidiaries. Engage at any
time in any business or business activity other than the Related Business;
provided, however, that Bidco shall not engage in any trade or business, or
otherwise conduct any business activity, other than the ownership of any
Foreign Subsidiary and activities incidental to such ownership.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any
waiver, supplement, modification, amendment, termination or release of any
indenture, instrument or agreement pursuant to which any Indebtedness of
the Borrower or any Subsidiary in an aggregate principal amount in excess
of $5,000,000 is outstanding if the effect of such waiver, supplement,
modification, amendment, termination or release is to (i) increase the
interest rate on such Indebtedness; (ii) accelerate the dates upon which
payments of principal or interest are due on such Indebtedness; (iii) add
or change any event of default or add any material covenant with respect to
such Indebtedness; (iv) change the prepayment provisions of such
Indebtedness in any manner adverse to the Lenders; (v) change the
subordination provisions thereof (or the subordination terms of any
Guarantee thereof); or (vi) change or amend any other term if such change
or amendment would materially increase the obligations of the obligor or
confer additional material rights on the holder of such Indebtedness in a
manner adverse to the Borrower, any Subsidiary, the Administrative Agent or
the Lenders.
(b)(i) Make any distribution, whether in cash, property, securities or
a combination thereof, other than regular scheduled payments of principal
and interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to
pay, or directly or indirectly redeem, repurchase, retire or otherwise
acquire for consideration, or set apart any sum for the aforesaid purposes,
any Indebtedness for borrowed money (other than the Loans) of the Borrower
or any Subsidiary except that (A) the Borrower shall be permitted to use
the Net Cash Proceeds of any Equity Issuance to prepay not more than
one-third of the Senior Subordinated Notes or any other Indebtedness, (B)
the Borrower and its Subsidiaries shall be permitted to make any such
distribution or payment if all of the following conditions are satisfied:
(1) at the time of such distribution or payment and after giving effect
thereto, no Default or Event of Default has occurred and is continuing or
would arise as a result thereof; (2) the amount of all such distributions
and payments made pursuant to this clause (i), together with all dividends,
redemptions and purchases made pursuant to Section 6.06(a)(ii), during the
term of this Agreement shall not exceed $25,000,000; and (3) on a pro forma
basis and after giving effect to such distribution or payment and all other
distributions or payments pursuant to this clause (i) and Section 6.06(a)
made after the last day of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 5.04(a) or
(b), as applicable, as if such payments or distributions were made in the
four-fiscal-quarter period ending on such last day of such fiscal quarter,
the Consolidated Leverage Ratio as of the end of such four-fiscal-quarter
period shall be less than 3.85 to 1.00, or (ii) pay in cash any amount in
respect of such Indebtedness that may at the obligor's option be paid in
kind or in other securities and (C) the Borrower may at any time repay
Indebtedness of the Borrower or any Subsidiary solely in shares of its
capital stock.
SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures made by the Borrower and its
Subsidiaries, taken as a whole, in any fiscal year of the Borrower to
exceed $25,000,000 plus 75% of all Consolidated Capital Expenditures made
by Subsidiaries within twelve months prior to such Subsidiaries being
acquired as Permitted Acquisitions. The amount of permitted Consolidated
Capital Expenditures set forth in the immediately preceding sentence in
respect of any fiscal year shall be increased by (a) the amount of unused
permitted Consolidated Capital Expenditures for the immediately preceding
fiscal year less (b) an amount equal to unused Consolidated Capital
Expenditures carried forward to such preceding fiscal year.
SECTION 6.11. Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio on the last day of any fiscal quarter of the Borrower ending
during any period set forth below to be in excess of the ratio set forth
below for such period:
Period Ratio
Effective Date - March 31, 2000 5.75 to 1.00
April 1, 2000 - March 31, 2001 5.00 to 1.00
April 1, 2001 - March 31, 2002 4.50 to 1.00
April 1, 2002 - March 31, 2003 3.75 to 1.00
Thereafter 3.50 to 1.00
SECTION 6.12. Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower ending during any period set forth below to be less
than the ratio set forth below for such period:
Period Ratio
Effective Date - March 31, 2000 2.00 to 1.00
April 1, 2000 - March 31, 2001 2.10 to 1.00
April 1, 2001 - March 31, 2002 2.25 to 1.00
April 1, 2002 - March 31, 2003 2.35 to 1.00
April 1, 2003 - March 31, 2005 2.50 to 1.00
Thereafter 2.75 to 1.00
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower ending during any period set forth below to be
less than the ratio set forth below for such period:
Period Ratio
Effective Date - March 31, 2002 1.15 to 1.00
April 1, 2002 - March 31, 2004 1.20 to 1.00
April 1, 2004 - March 31, 2005 1.25 to 1.00
Thereafter 1.50 to 1.00
SECTION 6.14. Fiscal Year. Permit the fiscal year of the Borrower
to end on a day other than December 31.
ARTICLE VII
Offer Covenants
SECTION 7.01. Offer Affirmative Covenants. (a) The Borrower shall cause
Bidco to promptly (and in any event within five Business Days) notify the
Administrative Agent upon first becoming entitled to implement the procedures
set out in Section 428 et. seq. of the U.K. Companies Act of 1985 in respect of
the Shares not tendered and accepted pursuant to the Offer. Promptly upon (and
in any event within two weeks after) becoming entitled to initiate the
procedures set out in Section 429 of the U.K. Companies Act of 1985, the
Borrower shall cause Bidco to initiate such procedures and to use commercially
reasonable efforts to acquire 100% of the Shares within six weeks of Bidco's
initiation of such procedures.
(b) The Borrower will comply, and will cause each other member of the Group
to comply, with the City Code (subject to any applicable waivers by the Takeover
Panel), the U.K. Financial Services Act of 1986 and the U.K. Companies Act of
1985 and all other applicable laws in respects material in the context of the
Offer.
(c) The Borrower will keep the Administrative Agent and the Lenders
informed in reasonable detail as to the status of the Offer and the current
level of acceptances of the Offer (including the delivery to the Administrative
Agent of a copy of every certificate delivered by the receiving agent to Bidco
and/or its advisers pursuant to the City Code).
(d) If the Borrower becomes aware of any circumstance or event which is or
could reasonably be construed to be covered by any condition to the Offer which
(if not waived) would entitle, taking account of the provisions of Note 2 to
Rule 13 of the City Code, any member of the Group to lapse the Offer, the
Borrower shall notify the Administrative Agent promptly thereof and if the
Administrative Agent determines that such circumstance or event would materially
and adversely affect the ability of the Borrower to comply with its obligations
hereunder, the Borrower shall request, or shall cause the appropriate Subsidiary
or other Person to request, that the Takeover Panel allow its Offer to lapse and
if the Takeover Panel so agrees in response to such request, the Borrower shall
cause Bidco to immediately allow the Offer to lapse.
SECTION 7.02. Offer Negative Covenants. Without the consent of the Required
Lenders, the Borrower will not, and will not allow Bidco to, do any of the
following:
(a) waive, amend, extend, revise, withdraw or agree or decide
not to enforce, in whole or in part, any term, which is material, or
condition of the Offer corresponding to those set out in paragraphs (b)
and (c) of Appendix 1, Part A to the Press Release, except for any
extension of time for acceptance of the Offer;
(b) decide, declare or accept that valid acceptances in
respect of less than 75% in nominal value of the Shares to which the
Offer relates will be required for fulfillment of the condition
corresponding to that set out in paragraph (a) of Appendix 1, Part A of
the Press Release; or
(c) issue or allow to be issued on behalf of the Borrower or
any of its Affiliates any press release or other publicity which makes
reference to this Agreement or any other Transaction Document or the
financing contemplated hereby or to some or all of the Lenders, the
Arrangers and/or the Administrative Agent except to the extent the
publicity is required by law, the City Code, the Takeover Panel or any
stock exchange (in which case the Borrower shall notify the
Administrative Agent thereof as soon as practicable upon becoming aware
of the requirement, shall consult with the Administrative Agent and the
Arrangers on the terms of the reference and shall have regard to any
timely comments of the Administrative Agent and the Arrangers).
Without limiting the generality of the foregoing, any action by or on
behalf of the Borrower, the Subsidiaries, any Affiliate of the Borrower and any
person working on the behalf of, or in concert with, any of the foregoing (the
"Group") which would result in (i) the revision of the Offer in accordance with
Rule 9 of the City Code or (ii) the offer price exceeding 195 ▇▇▇▇▇ per Share
(or such other amount as the Required Lenders shall have otherwise agreed to in
writing from time to time) must be approved in writing in advance by the
Required Lenders.
ARTICLE VIII
Events of Default
SECTION 8.01. Events of Default. An "Event of Default" occurs if:
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings hereunder, or
any representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made,
deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Fee or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue
unremedied for a period of three Business Days after notice;
(d) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a), 5.05 or 5.07 or in Article VI
or VII;
(e) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 15 days after notice thereof from the Administrative Agent or
any Lender to the Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $5,000,000, when and as
the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause
(ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower or any
Subsidiary, or of a substantial part of the property or assets of the
Borrower or a Subsidiary, under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal, state or
foreign bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or
for a substantial part of the property or assets of the Borrower or any
Subsidiary or (iii) the winding-up or liquidation of the Borrower or
any Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(h) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or
the filing of any petition described in (g) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of the property or assets of the
Borrower or any Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take any action for the purpose of
effecting any of the foregoing;
(i) one or more judgments for the payment of money the
aggregate amount which is not covered by insurance is in excess of
$5,000,000 shall be rendered against the Borrower, any Subsidiary or
any combination thereof and the same shall remain undischarged for a
period of 45 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of the Borrower or any
Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other such ERISA
Events, could reasonably be expected to result in liability of the
Borrower and its ERISA Affiliates in an aggregate amount exceeding
$5,000,000;
(k) any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by the
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent
to maintain possession of certificates representing securities pledged
under the Pledge Agreement and except to the extent that such loss is
covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy; or
(l) there shall have occurred a Change in Control.
SECTION 8.02. Acceleration. (a) Subject to paragraph (c) below, if an
Event of Default (other than an Event of Default specified in Section 8.01(g) or
(h) with respect to the Borrower) occurs and is continuing, and has not been
waived by the Required Lenders, then the Administrative Agent, with the consent
of the Required Lenders, may, and upon request of the Required Lenders shall, by
written notice to the Borrower, take either or both of the following actions, at
the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding
(b) If an Event of Default specified in Section 8.01(g) or (h) relating
to the Borrower occurs, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Borrower accrued
hereunder and under any other Loan Document, shall automatically become due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein or in any other Loan Document to the contrary notwithstanding
(c) Notwithstanding anything to the contrary in this Agreement, during
the period commencing with the Effective Date and ending on the earlier of the
Termination Date and the Offer Termination Date, the Administrative Agent and
the Lenders shall not be entitled to terminate the Commitments, rescind this
Agreement or prevent any funding of the Offer (including the acquisition of
Shares pursuant to the provisions of Section 428 et. seq. of the U.K. Companies
Act of 1985 and the funding of proposals made to holders of options over Shares
in accordance with Rule 15 of the City Code) nor to declare the Loans due and
payable in whole or in part or exercise any other right or remedy under any Loan
Document or exercise any setoff or similar right arising on the basis of
misrepresentation or Event of Default or otherwise if to do so would prevent the
funding of the Offer in accordance with Section 4.02 unless (i) an Event of
Default specified in paragraph (b) (other than an Event of Default arising
solely as a result of the operation of Section 8.01(h)(vi)) shall have occurred;
(ii) an event of the kind described in paragraphs (g) and (h) of Section 8.01
shall have occurred with respect to Bidco, Powerscreen or any of Powerscreen's
subsidiaries that would be deemed to be a Significant Subsidiary if such
subsidiary were a subsidiary of the Borrower; provided, however, that this
clause (ii) shall not apply where Bidco is not permitted to lapse the Offer as a
result of such event having occurred with respect to Powerscreen or any of its
Significant Subsidiaries; (iii) any of the representations and warranties set
forth in Section 3.01, 3.02 or 3.03, as they relate to the Borrower or Bidco,
shall not be true and correct in all material respects on the date of any
Borrowing of the type described in Section 4.02 with the same effect as though
made on such date or (iv) any of the Offer Conditions Precedent, unless waived
in writing by the Required Lenders (such waiver being conclusively evidenced by
written notice from the Administrative Agent to the Borrower) shall not have
been satisfied on the date of any such Borrowing; provided, however, that this
clause (iv) shall not apply where the event or circumstance which would
otherwise cause the relevant Offer Condition Precedent not to be satisfied is a
waiver of a condition of the Offer by Bidco in circumstances where Bidco would
not otherwise have been able to lapse the Offer in accordance with Note 2 to
Rule 13 of the City Code.
ARTICLE IX
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
CSFB is hereby appointed to act as Administrative Agent and Collateral Agent on
behalf of the Lenders (for purposes of this Article IX, the Administrative Agent
and the Collateral Agent are referred to collectively as the "Agents"). Each of
the Lenders and each assignee of any such Lender hereby irrevocably authorizes
the Agents to take such actions on behalf of such Lender or assignee and to
exercise such powers as are specifically delegated to the Agents by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Borrower of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Borrower or any other Loan Party
pursuant to this Agreement or the other Loan Documents as received by the
Administrative Agent. Without limiting the generality of the foregoing, the
Agents are hereby expressly authorized to execute any and all documents
(including releases) with respect to the Collateral and the rights of the
Secured Parties with respect thereto, as contemplated by and in accordance with
the provisions of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or the Borrower
or any other Loan Party of any of their respective obligations hereunder or
under any other Loan Document or in connection herewith or therewith. Each of
the Agents may execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it in accordance with
the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the successor to such Agent shall be
selected in accordance with Article VIII of the Existing Credit Agreement and
such successor Agent selected thereunder shall serve as the Administrative Agent
or the Collateral Agent, as the case may be, hereunder. Without limiting the
generality of the foregoing, it is understood and agreed that, at any time,
there shall be only one Collateral Agent for all of the Secured Parties. If all
Existing Loans and other amounts owing under the Existing Credit Agreement have
been repaid and all commitments under the Existing Credit Agreement have been
terminated, the Required Lenders shall have the right to appoint a successor
Agent. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a bank with an office in New
York, New York, having a combined capital and surplus of at least $500,000,000
or an Affiliate of any such bank. Upon the acceptance of any appointment as
Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After the Agent's resignation hereunder, the provisions of this
Article IX and Section 10.05 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 Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on the sum of its aggregate available
Commitments and outstanding Loans hereunder) of any expenses incurred for the
benefit of the Lenders by the Agents, including counsel fees and compensation of
agents and employees paid for services rendered on behalf of the Lenders, that
shall not have been reimbursed by the Borrower and (b) to indemnify and hold
harmless each Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against it in its capacity as Agent
or any of them in any way relating to or arising out of this Agreement or any
other Loan Document or any action taken or omitted by it or any of them under
this Agreement or any other Loan Document, to the extent the same shall not have
been reimbursed by the Borrower or any other Loan Party; provided that no Lender
shall be liable to an Agent or any such other indemnified person for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Agent or any of its directors,
officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of General Counsel (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to Credit Suisse First Boston, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇ ▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇;
(c) if to a Lender, to it at its address (or telecopy number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto; and
(d) if to an Existing Lender that is not also a Lender, to it in care
of Credit Suisse First Boston, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇).
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, regardless of any investigation made by the Lenders or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any Fee or any other amount payable under
this Agreement or any other Loan Document is outstanding and unpaid and so long
as the Commitments have not been terminated. The provisions of Sections 2.14,
2.16, 2.20 and 10.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent or any
Lender.
SECTION 10.03. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower, the Administrative Agent and the
Collateral Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
SECTION 10.04. Successors and Assigns. (a) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, the Administrative Agent or the
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of such Lender or an Approved Fund, (x) the Borrower and the
Administrative Agent must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld) and (y) the amount of the
Commitment or Loans, as applicable, of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 (or, if less, the entire remaining amount of such Lender's
Commitment or Loans, as applicable), (ii) the parties to each such assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and (iii)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire. For purposes of this Section 10.04(b),
"Approved Fund" shall mean, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans which is
managed or advised by the same investment advisor as such Lender or by an
affiliate of such investment advisor. Upon acceptance and recording pursuant to
paragraph (e) of this Section 10.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 10.05,
as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitments and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance, (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender 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; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Collateral Agent and
the Lenders may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Collateral Agent and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if
they were Lenders and (iv) the Borrower, the Administrative Agent and the
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers decreasing any fees payable hereunder or the amount of principal of
or the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans,
releasing the Borrower or any Subsidiary Guarantor or all or any substantial
part of the Collateral or increasing or extending the Commitment applicable to
such participant).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 10.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to the Borrower by the assigning Lender
hereunder.
(i) The Borrower shall not assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent and each
Lender, and any attempted assignment without such consent shall be null and
void.
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Collateral Agent in connection with the syndication of the credit facilities
provided for herein and the preparation and administration of this Agreement and
the other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
hereby or thereby contemplated shall be consummated) or incurred by the
Administrative Agent, the Collateral Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans hereunder, as
applicable, including the reasonable fees, charges and disbursements of Cravath,
Swaine & ▇▇▇▇▇ and Linklaters & Paines, counsel for the Administrative Agent and
the Collateral Agent, and, in connection with any such enforcement or
protection, the fees, charges and disbursements of any other counsel for the
Administrative Agent, the Collateral Agent or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender, each Affiliate of any of the foregoing persons
and each of their respective directors, officers, employees and agents (each
such person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred
by or asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement or any other
Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans, (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, or (iv) any actual or alleged presence, Release
or threat of Release of Hazardous Materials on any Properties, or any
Environmental Claim related in any way to the Borrower or the Subsidiaries;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) The provisions of this Section 10.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the invalidity or unenforceability
of any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent or any Lender. All amounts due under this Section 10.05 shall be payable
on written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement and other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this
Section 10.06 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent or any Lender in exercising any power
or right hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Collateral Agent and the Lenders hereunder and under the other Loan Documents
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower or any other Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Loan, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan, without the prior written consent of
each Lender affected thereby, (ii) change or extend the Commitment or decrease
or extend the date for payment of the Commitment Fee of any Lender without the
prior written consent of such Lender, (iii) amend or modify the pro rata sharing
provisions of Section 2.17 or the provisions of Section 10.04(i), the provisions
of this Section, the definition of the term "Required Lenders" or release the
Borrower or any Subsidiary Guarantor or all or any substantial part of the
Collateral, without the prior written consent of each Lender; provided further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Collateral Agent hereunder or under
any other Loan Document without the prior written consent of the Administrative
Agent or the Collateral Agent.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section 10.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.10. Entire Agreement. This Agreement, the other Loan Documents,
the Engagement Letter and the Syndication Letter constitute the entire contract
among the parties relative to the subject matter hereof. Any other previous
agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement and the other Loan Documents. Except as provided in
Section 10.17, nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the
parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 10.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11.
SECTION 10.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 10.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 10.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or the other Loan
Documents against the Borrower or its properties in the courts of any
jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 10.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 10.16. Confidentiality. The Administrative Agent, the Collateral
Agent and each of the Lenders agrees to keep confidential (and to use its best
efforts to cause its respective agents and representatives to keep confidential)
the Information (as defined below) and all copies thereof, extracts therefrom
and analyses or other materials based thereon, except that the Administrative
Agent, the Collateral Agent or any Lender shall be permitted to disclose
Information (a) to such of its respective officers, directors, employees,
agents, affiliates and representatives as need to know such Information, (b) to
the extent requested by any regulatory authority (provided such authority shall
be advised of the confidential nature of the Information), (c) to the extent
otherwise required by applicable laws and regulations or by any subpoena or
similar legal process, (d) in connection with any suit, action or proceeding
relating to the enforcement of its rights hereunder or under the other Loan
Documents, (e) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty (or its affiliates) is not a competitor of the
Borrower or any of its Subsidiaries and agrees to be bound by the provisions of
this Section 10.16) or (f) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 10.16 or (ii)
becomes available to the Administrative Agent, any Lender or the Collateral
Agent on a nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by the Administrative Agent, the Collateral
Agent or any Lender based on any of the foregoing) that are received from the
Borrower and related to the Borrower, any shareholder of the Borrower or any
employee, customer or supplier of the Borrower, other than any of the foregoing
that were available to the Administrative Agent, the Collateral Agent or any
Lender on a nonconfidential basis prior to its disclosure thereto by the
Borrower, and which are in the case of Information provided after the Effective
Date, clearly identified at the time of delivery as confidential. The provisions
of this Section 10.16 shall remain operative and in full force and effect
regardless of the expiration and term of this Agreement.
SECTION 10.17. Rights of Existing Lenders. Without the consent of each
Existing Lender, the Borrower and the Lenders shall not enter into, consent to
or approve of any amendment, modification or waiver of any provision of this
Agreement or any other Loan Document if, as a result of such amendment, waiver
or modification, any Existing Lender would no longer be entitled to the pro rata
sharing requirements of Section 2.22 or the mandatory participation provisions
of Section 2.18 and any such attempted amendment, modification or waiver shall
be null and void. Each Existing Lender shall be entitled to enforce the
provisions of this Section 10.17.
SECTION 10.18. Designated Senior Indebtedness. For the purposes of each
indenture governing the Senior Subordinated Notes or the Additional Subordinated
Notes, the Loans and all Fees and all other expenses or amounts payable under
this Agreement shall be "Designated Senior Indebtedness" as such term is defined
in such indentures.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TEREX CORPORATION,
by /s/ ▇▇▇▇ ▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent
and as Collateral Agent,
by: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN BRANCHES,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistance Vice President