EXHIBIT 10.4(d)
HEXCEL CORPORATION
AND
CERTAIN OF ITS SUBSIDIARIES
_________________________
$345,000,000 SYNDICATED CREDIT FACILITIES
$10,000,000 EUROPEAN OVERDRAFT FACILITY
_________________________
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 5, 1998
_________________________
CREDIT FIRST
SUISSE BOSTON
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Other Definitional Provisions. . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS . . . . . . . . . . . 26
2.1 Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . 26
2.2 Procedure for Revolving Credit Borrowing . . . . . . . . . . . . . . . . 26
2.3 Use of Proceeds of Revolving Credit Loans. . . . . . . . . . . . . . . . 27
SECTION 3. AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY. . . . . . . . . . . 27
3.1 L/C Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.2 Procedure for Issuance of Letters of Credit. . . . . . . . . . . . . . . 28
3.3 Fees, Commissions and Other Charges. . . . . . . . . . . . . . . . . . . 29
3.4 L/C Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.5 Reimbursement Obligation of the Borrowers. . . . . . . . . . . . . . . . 30
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.7 Letter of Credit Payments. . . . . . . . . . . . . . . . . . . . . . . . 32
3.8 Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.9 Issuing Lender Reporting Requirements. . . . . . . . . . . . . . . . . . 32
3.10 Transitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4. AMOUNT AND TERMS OF SWING LINE SUB-FACILITY. . . . . . . . . . . . . . 33
4.1 Swing Line Commitments . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.2 Procedure for Swing Line Loan Borrowing. . . . . . . . . . . . . . . . . 33
4.3 Refunding of Swing Line Loans. . . . . . . . . . . . . . . . . . . . . . 34
4.4 Unconditional Obligation to Refund Swing Line Loans. . . . . . . . . . . 35
4.5 Use of Proceeds of Swing Line Loans. . . . . . . . . . . . . . . . . . . 35
SECTION 5. AMOUNTS AND TERMS OF EUROPEAN SUB-FACILITY . . . . . . . . . . . . . . 35
5.1 European Revolving Credit Facility . . . . . . . . . . . . . . . . . . . 35
5.2 Procedure for Borrowing Syndicated European Loans. . . . . . . . . . . . 36
5.3 Procedure for Borrowing Local European Loans . . . . . . . . . . . . . . 36
5.4 Matters Relating to Local European Loans . . . . . . . . . . . . . . . . 37
5.5 Use of Proceeds of European Revolving Loans. . . . . . . . . . . . . . . 39
5.6 Termination of Foreign Borrower Status . . . . . . . . . . . . . . . . . 39
5.7 Resignation of Local Lender. . . . . . . . . . . . . . . . . . . . . . . 39
5.8 Reporting by Local Lenders . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6. AMOUNTS AND TERMS OF EUROPEAN OVERDRAFT
FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.1 European Overdraft Facility. . . . . . . . . . . . . . . . . . . . . . . 40
6.2 Making of European Overdraft Loans . . . . . . . . . . . . . . . . . . . 41
Page
6.3 Repayment of European Overdraft Loans. . . . . . . . . . . . . . . . . . 41
6.4 Use of Proceeds of European Overdraft Loans. . . . . . . . . . . . . . . 41
6.5 Adjustment of European Overdraft Commitment. . . . . . . . . . . . . . . 41
SECTION 7. PROVISIONS RELATING TO THE EXTENSIONS OF CREDIT;
FEES AND PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.1 Repayment of Loans; Evidence of Debt . . . . . . . . . . . . . . . . . . 42
7.2 Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.3 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.4 Optional Termination or Reduction of Aggregate Revolving Credit
Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7.5 Mandatory Reduction of Commitments and Prepayments . . . . . . . . . . . 44
7.6 Conversion and Continuation Options. . . . . . . . . . . . . . . . . . . 46
7.7 Minimum Amounts and Maximum Number of Tranches . . . . . . . . . . . . . 47
7.8 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . 47
7.9 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . 48
7.10 Inability to Determine Interest Rate. . . . . . . . . . . . . . . . . . 49
7.11 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . . . . . 49
7.12 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.13 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.15 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.16 Certain Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.17 Change of Lending Office. . . . . . . . . . . . . . . . . . . . . . . . 55
7.18 Overall Interest Rate for French Law. . . . . . . . . . . . . . . . . . 56
7.19 Designation of Additional Borrowers . . . . . . . . . . . . . . . . . . 56
7.20 European Monetary Union . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 8. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . 58
8.1 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.2 No Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.3 Corporate Existence; Compliance with Law . . . . . . . . . . . . . . . . 59
8.4 Corporate Power; Authorization; Enforceable Obligations. . . . . . . . . 59
8.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.8 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . . . . . 60
8.9 Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.11 Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.12 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.13 Investment Company Act; Other Regulations . . . . . . . . . . . . . . . 62
8.14 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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8.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.16 Collateral Documents. . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.17 Accuracy and Completeness of Information. . . . . . . . . . . . . . . . 64
8.18 Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.19 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.20 Government Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.1 Conditions to Initial Loans. . . . . . . . . . . . . . . . . . . . . . . 65
9.2 Conditions to Each Loan. . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 68
10.1 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . 69
10.3 Payment of Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 70
10.4 Conduct of Business and Maintenance of Existence. . . . . . . . . . . . 70
10.5 Maintenance of Property; Insurance. . . . . . . . . . . . . . . . . . . 71
10.6 Inspection of Property; Books and Records; Discussions. . . . . . . . . 71
10.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.8 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.9 Additional Collateral . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.1 Financial Condition Covenants . . . . . . . . . . . . . . . . . . . . . 73
11.2 Limitation on Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 74
11.3 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.4 Limitation on Guarantee Obligations . . . . . . . . . . . . . . . . . . 77
11.5 Limitation on Fundamental Changes . . . . . . . . . . . . . . . . . . . 78
11.6 Limitation on Sale of Assets. . . . . . . . . . . . . . . . . . . . . . 78
11.7 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . 79
11.8 Limitation on Investments . . . . . . . . . . . . . . . . . . . . . . . 79
11.9 Limitation on Transactions with Affiliates. . . . . . . . . . . . . . . 81
11.10 Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . 81
11.11 Limitation on Changes in Fiscal Year or Accounting Treatment . . . . . 81
11.12 Limitation on Negative Pledge Clauses. . . . . . . . . . . . . . . . . 81
11.13 Limitation on Lines of Business. . . . . . . . . . . . . . . . . . . . 82
11.14 Limitation on Modification of Agreements and Payments on
Account of Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.15 No New Restrictions on Subsidiary Dividends. . . . . . . . . . . . . . 82
SECTION 12. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 13. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT . . . . . . . . . . 86
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13.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.2 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . . . . . . . 87
13.4 Reliance by Administrative Agent and Collateral Agent . . . . . . . . . 87
13.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
13.6 Non-Reliance on Administrative Agent, Collateral Agent and Other
Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
13.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.8 Agents in their Individual Capacities . . . . . . . . . . . . . . . . . 89
13.9 Successor Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 14. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
14.1 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . . . 91
14.2 Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.4 No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . 93
14.5 Survival of Representations and Warranties. . . . . . . . . . . . . . . 93
14.6 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . 94
14.7 Successors and Assigns; Participations and Assignments. . . . . . . . . 95
14.8 Adjustments; Set-off. . . . . . . . . . . . . . . . . . . . . . . . . . 97
14.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
14.10 Certain Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
14.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
14.12 Integration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
14.13 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
14.14 Submission To Jurisdiction; Waivers. . . . . . . . . . . . . . . . . . 99
14.15 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . .100
14.16 WAIVERS OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . .101
14.17 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . .101
14.18 Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . . . .101
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SCHEDULES
Schedule I Lenders; Commitments
Schedule II Addresses for Notices
Schedule 3.10 Existing Letters of Credit
Schedule 7.5 Permitted Property Sales
Schedule 8.4 Additional Foreign Law Requirements
Schedule 8.6 Existing Litigation
Schedule 8.14 Subsidiaries
Schedule 8.15 Environmental Matters
Schedule 9.1 International Counsel
Schedule 11.2 Indebtedness
Schedule 11.3 Liens
Schedule 11.4 Guarantee Obligations
Schedule 11.9 Permitted Transactions with Affiliates
Schedule 11.14 Permitted Payments of Indebtedness
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Swing Line Note
Exhibit C-1 Form of Company Guaranty
Exhibit C-2 Form of Company Pledge Agreement
Exhibit D-1 Form of Subsidiary Guaranty
Exhibit D-2 Form of Subsidiary Pledge Agreement
Exhibit E Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Exhibit F-1 Form of Notice of Borrowing (Drawings)
Exhibit F-2 Form of Notice of Borrowing (Conversions)
Exhibit F-3 Form of Notice of Borrowing (Continuations)
Exhibit G Form of Assignment and Acceptance
Exhibit H Form of Compliance Certificate
Exhibit I Form of Additional Borrower Joinder Agreement
Exhibit J Form of Local Lender Joinder Agreement
2
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 5, 1998,
among:
(a) HEXCEL CORPORATION, a Delaware corporation (with its successors and
permitted assigns, the "COMPANY");
(b) the FOREIGN BORROWERS from time to time parties hereto (together with
the Company, the "BORROWERS");
(c) the LENDERS from time to time parties hereto;
(d) CITIBANK, N.A., a national banking association, as collateral agent (the
"COLLATERAL AGENT");
(e) CITICORP SECURITIES, INC., a Delaware corporation, as syndication agent
(the "SYNDICATION AGENT") for the Lenders
(e) CREDIT SUISSE FIRST BOSTON, a Swiss banking association ("CSFB"), as
documentation agent (in such capacity, the "DOCUMENTATION AGENT") and as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for
the Lenders.
W I T N E S S E T H:
WHEREAS, the Company is a party to the Credit Agreement, dated as
of June 27, 1996 (as amended, supplemented or otherwise modified from time to
time, the "EXISTING AGREEMENT"), with the Foreign Borrowers from time to time
parties thereto, the banks and other financial institutions from time to time
parties thereto, Citibank, N.A., as collateral agent, and CSFB, as
administrative agent;
WHEREAS, the Company has requested that the Existing Agreement be
amended as more fully described herein;
WHEREAS, each of the parties to the Existing Agreement is agreeable
to the requested amendments, but only upon the terms and subject to the
conditions set forth herein, and each of the parties to the Existing
Agreement, for convenience of reference, has agreed to restate the Existing
Agreement as so amended;
WHEREAS, each of the Banks and the other parties hereto are
agreeable to the terms and provisions of the Existing Agreement as amended
and restated hereby;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties to the Existing Agreement agree that
the Existing Agreement shall be and hereby is amended and restated in its
entirety and the parties hereto hereby agree as follows:
3
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate PER ANNUM equal to the greater of (i)
the Prime Rate in effect on such day and (ii) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
ABR due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"ABR LOANS": Loans (including, without limitation, Swing Line
Loans) the rate of interest applicable to which is based upon the ABR.
"ADDITIONAL BORROWER": as defined in subsection 7.19(a).
"ADDITIONAL BORROWER JOINDER AGREEMENT": an Additional Borrower
Joinder Agreement, substantially in the form of Exhibit I, delivered
pursuant to subsection 7.19(b).
"ADMINISTRATIVE AGENT": as defined in the preamble hereto.
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 5% or more of the securities
having ordinary voting power for the election of directors of such
Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise; PROVIDED that
Hexcel Foundation shall be deemed not to be an "Affiliate" of the
Company or any of its Subsidiaries during such time as Hexcel Foundation
maintains its status as a not-for-profit corporation for purposes of
California law.
"AGGREGATE OUTSTANDING EXTENSIONS OF CREDIT": as to any Revolving
Credit Lender at any time, an amount equal to the sum of (a) the
aggregate outstanding principal amount of all Revolving Credit Loans
made by such Revolving Credit Lender and (b) such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the L/C Obligations
and Swing Line Loans then outstanding.
"AGGREGATE REVOLVING CREDIT COMMITMENT": $345,000,000, as such
amount may be reduced from time to time pursuant to this Agreement.
"AGREEMENT": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"APPLICABLE FACILITY FEE RATE": (a) for each day when a Pricing
Adjustment
4
Event is not continuing, the rate equal to 0.250% PER ANNUM and (b) for
each day when a Pricing Adjustment Event is continuing, the rate per
annum set forth below opposite the Leverage Ratio then in effect:
-----------------------------------------
Leverage Ratio Facility
Fee
-----------------------------------------
Greater than or equal to 4.5 .375%
to 1.0
Greater than or equal to 4.0 .325%
to 1.0, but less than 4.5 to
1.0
Greater than or equal to 3.5 .300%
to 1.0, but less than 4.0 to
1.0
Greater than or equal to 3.0 .250%
to 1.0, but less than 3.5 to
1.0
Greater than or equal to 2.5 .225%
to 1.0, but less than 3.0 to
1.0
Less than 2.5 to 1.0 .1875%
-----------------------------------------
"APPLICABLE MARGIN": (a) for each day when a Pricing Adjustment
Event is not continuing, the rate per annum set forth under the relevant
column heading below opposite the Leverage Ratio then in effect:
----------------------------------------------
Margin
Leverage Ratio
------------------------
Eurodollar ABR Loans
Loans
----------------------------------------------
Greater than or equal 0.625% 0%
to 4.0
Greater than or equal 0.500% 0%
to 3.5 to 1.0, but less
than 4.0 to 1.0
Less than 3.5 to 1.0 0.375% 0%
----------------------------------------------
5
(b) for each day when a Pricing Adjustment Event is continuing,
the rate per annum set forth under the relevant column heading below
opposite the Leverage Ratio then in effect:
----------------------------------------------
Margin
Leverage Ratio
------------------------
Eurodollar ABR Loans
Loans
----------------------------------------------
Greater than or equal 1.125% 0.125%
to 4.5 to 1.0
Greater than or equal 0.925% 0%
to 4.0 to 1.0, but less
than 4.5 to 1.0
Greater than or equal 0.700% 0%
to 3.5 to 1.0, but less
than 4.0 to 1.0
Greater than or equal 0.625% 0%
to 3.0 to 1.0, but less
than 3.5 to 1.0
Greater than or equal 0.400% 0%
to 2.5 to 1.0, but less
than 3.0 to 1.0
Less than 2.5 to 1.0 0.3125% 0%
----------------------------------------------
(c) Notwithstanding the foregoing and regardless of whether a
Pricing Adjustment Event shall then be continuing, (i) the "Applicable
Margin" from time to time for Swing Line Loans shall be the same as the
"Applicable Margin" then in effect for ABR Loans and (ii) the
"Applicable Margin" from time to time for Eurocurrency Loans denominated
in Optional Currencies shall be increased by any additional "associated
reserve costs" (or analogous costs) not otherwise included in the
Eurocurrency Rate.
"APPLICATION": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing
Lender to open a Letter of Credit.
"ASSIGNEE": as defined in subsection 14.7(c).
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Revolving
Credit Lender, at any time, an amount equal to the excess, if any, of
(a) such Revolving Credit Lender's Revolving Credit Commitment over (b)
the sum of (i) such Revolving Credit Lender's Aggregate Outstanding
Extensions of Credit and (ii) such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the Reserved Proceeds then outstanding.
"BANKRUPTCY EVENT": any event described in Section 12(f)(i) or
(ii).
6
"BORROWERS": as defined in the preamble hereto.
"BORROWING DATE": any Business Day specified in a Notice of
Borrowing pursuant to subsection 2.2, 4.2, 5.2, 5.3 or 6.2 as a date on
which the relevant Borrower requests the Lenders to make Loans hereunder.
"BUSINESS DAY": a day other than a Saturday, Sunday or other day
on which commercial banks are authorized or required by law to close (a)
in New York, New York and (b) in the case of Eurocurrency Loans, (i) in
London, England and either (A) in the case of Loans denominated in (1)
Austrian shillings, in Vienna, Austria, (2) Belgian francs, in Brussels,
Belgium, (3) Dutch guilders, in Amsterdam, The Netherlands, (4) French
francs, in Lyon, France, (5) German marks, in Frankfurt-am-Main,
Germany, (6) Italian lire, in Milan, Italy, (7) Spanish pesetas, in
Madrid, Spain, and (8) any other currency, the principal financial
center of the jurisdiction in which such Loan is being made and (B) in
the case of Letter of Credit transactions for a particular Issuing
Lender, in the place where its office for issuance or administration of
the pertinent Letter of Credit is located.
"CAPITAL EXPENDITURE": an expenditure in respect of the purchase
or other acquisition of fixed or capital assets (excluding any such
asset acquired in connection with normal replacement and maintenance
programs properly charged to current operations); PROVIDED, that (i)
Capital Expenditures shall include (A) that portion of Financing Leases
which is incurred and capitalized on the balance sheet of the Company
and its Subsidiaries and (B) expenditures for equipment that is
purchased simultaneously with the trade-in or disposal of existing
equipment owned by the Company or any of its Subsidiaries, to the extent
the gross purchase price of the purchased equipment exceeds the actual
value attributed to such equipment at the time of such trade-in or
disposal; and (ii) Capital Expenditures shall exclude expenditures made
in connection with the replacement or restoration of Property, to the
extent reimbursed or financed from insurance or condemnation proceeds.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"CASH EQUIVALENTS": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured
by the United States Government or any agency thereof, (b) certificates
of deposit and eurodollar time deposits with maturities of one year or
less from the date of acquisition and overnight bank deposits of any
Lender or of any commercial bank having capital and surplus in excess of
$250,000,000, (c) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-2
by Standard and Poor's Rating Group ("S&P") or P-2 by ▇▇▇▇▇'▇ Investors
Service, Inc.
7
("MOODY'S"), (e) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A
by Moody's, (f) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b)
of this definition or (g) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the requirements of
clauses (a) through (f) of this definition.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. '' 9601 ET SEQ., as
amended, any successor statutes, and any regulations or legally
enforceable guidelines promulgated thereunder.
"CERCLIS" is defined in subsection 8.15(f).
"CHANGE OF CONTROL" means the occurrence of any of the following
events:
(i) (A) any "person" (as such term is used in Section 13(d) and
14(d) of the Exchange Act, but other than Specialty Chemicals and its
Affiliates) beneficially owns, directly or indirectly, more than 25% of
the total voting power of the voting stock of the Company and (B) the
total voting power of the voting stock of the Company beneficially owned
by such "person" exceeds that which is beneficially owned by the
Specialty Chemicals and its Affiliates; or
(ii) at any time, individuals who constitute the Board of
Directors of the Company on the date hereof (together with any new
directors whose election by such Board of Directors or whose nomination
for election by the shareholders of the Company was approved pursuant to
the Governance Agreement or by a vote of 66-2/3% of the directors of the
Company then still in office who were either directors at the beginning
of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors then in office.
"CHEMICAL HOLDINGS" means Ciba Specialty Chemical Holdings Inc., a
Swiss corporation, and its successors.
"CLOSING DATE": the date on which the conditions precedent set
forth in subsection 9.1 shall be satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all assets of the Credit Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document (it being understood that, on the Closing Date,
the only such assets constituting "Collateral" shall be capital stock).
8
"COLLATERAL AGENT": as defined in the preamble hereto.
"COMMERCIAL LETTER OF CREDIT": as defined in subsection 3.1(b).
"COMMITMENT PERIOD": the period from and including the date hereof
to but not including the Termination Date or such earlier date on which
the Aggregate Revolving Credit Commitment shall terminate as provided
herein.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Company and which is treated as a single employer under Section 414
of the Code.
"COMPANY": as defined in the preamble.
"COMPANY GUARANTY": the Guaranty, substantially in the form of
Exhibit C-1, made by the Company in favor of the Collateral Agent, as
the same may be amended, supplemented or otherwise modified from time to
time.
"COMPANY PLEDGE AGREEMENT": the Pledge Agreement, substantially in
the form of Exhibit C-2, made by the Company in favor of the Collateral
Agent, as the same may be amended, supplemented or otherwise modified
from time to time.
"CONTAMINANT" means any pollutant, hazardous substance, radioactive
substance, toxic substance, hazardous waste, radioactive waste, special
waste, petroleum or petroleum-derived substance or waste, asbestos in
any form or condition, polychlorinated biphenyls (PCBs), or any
hazardous or toxic constituent thereof and includes, but is not limited
to, these terms as defined under Environmental, Health or Safety
Requirements of Law.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CREDIT DOCUMENTS": this Agreement, the Notes, the Applications,
the Guarantees and the Security Documents.
"CREDIT PARTIES": the Company and each of its Subsidiaries
(including, without limitation, each Foreign Borrower) which is a party
to a Credit Document.
"CSFB": as defined in the preamble.
"DEFAULT": any of the events specified in Section 12, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has
9
been satisfied.
"DIC": the joint venture entered into between the Company and
Dainippon Ink & Chemicals, Inc., pursuant to that certain Parent Company
Agreement dated as of April 17, 1990 (as amended) under which the
Company and Dainippon caused Hexcel Technologies, Inc. and DIC
Technologies, Inc. (Wholly-owned Subsidiaries of the Company and
Dainippon Ink & Chemicals, Inc., respectively) to enter into that
certain Participants Agreement dated as of September 14, 1990 (as
amended) pursuant to which Hexcel Technologies, Inc. and DIC
Technologies, Inc. formed Hexcel-DIC Partnership ("HDP") and pursuant to
which Hexcel Technologies, Inc. and DIC Technologies Inc., caused HDP to
form DIC-Hexcel, Ltd. as a Wholly-owned Subsidiary of HDP.
"DOLLAR EQUIVALENT" means, with respect to any Optional Currency at
the time of determination thereof, the equivalent of such currency in
Dollars determined at the rate of exchange quoted by the Administrative
Agent in New York, New York at 12:00 noon (New York time) on the last
Business Day of the most recently completed calendar quarter (or, if the
Administrative Agent so elects or any Lender so requests, on the date of
determination), to prime banks in New York City for the spot purchase in
the New York foreign exchange market of such amount of Dollars with such
Optional Currency.
"DOLLARS" and "$": dollars in lawful currency of the United States
of America.
"DOMESTIC SUBSIDIARY": any Subsidiary of the Company organized
under the laws of any jurisdiction within the United States.
"EBITDA": for any period on a combined basis for any Person, (i)
the sum of the amounts for such period for such Person of (A) Net
Income, (B) depreciation and amortization expense, (C) total Interest
Expense, (D) charges for federal, state, local and foreign income taxes
and (E) extraordinary losses (including restructuring charges and
business acquisition and consolidation expenses) and other nonoperating
expenses that have been deducted in the determination of such Net
Income, MINUS (ii) the sum of (A) extraordinary gains not already
excluded from the determination of such Net Income (including, without
limitation, gains in connection with the sale of Property and gains
based upon market valuation, GAAP valuation or sale of securities) and
(B) interest and other nonoperating income.
"ELIGIBLE ASSIGNEE" means (i) a Lender or any Affiliate thereof;
(ii) a commercial bank organized under the laws of the United States, or
any State thereof, and having total assets in excess of $5,000,000,000;
(iii) a finance company, insurance company, other financial institution
or fund, reasonably acceptable to the Administrative Agent, that is
regularly engaged in making, purchasing or investing in loans and having
total assets in excess of $5,000,000,000; (iv) a savings and loan
association or savings bank organized under the laws of the United
States or any State thereof that has a net worth, determined in
accordance with GAAP, in excess of $500,000,000; (v) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such
10
country, and having total assets in excess of $5,000,000,000, as long as
such bank is acting through a branch or agency located in the country in
which it is organized or another country that is also a member of the
OECD; (vi) the central bank of any country that is a member of the OECD;
or (vii) a finance company, insurance company, bank, other financial
institution or fund acceptable to the Administrative Agent, which
acceptance shall not be unreasonably withheld; and, in each case, is
capable of making Loans in accordance with the terms hereof both in the
United States and in each country in which an Optional Currency is the
national currency.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, European Union,
United States federal, state and local laws or regulations relating to
or addressing the environment, health or safety, including but not
limited to any law, regulation, or order relating to the use, handling,
or disposal of any Contaminant, any law, regulation, or order relating
to Remedial Action and any law, regulation, or order relating to
workplace or worker safety and health, and such Requirements of Law as
are promulgated by the specifically authorized Governmental Authority
responsible for administering such Requirements of Law, each as from
time to time hereafter in effect.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or
Safety Requirements of Law, or (ii) damages arising from, or costs
incurred by such Governmental Authority in response to, a Release or
threatened Release of a Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACTS" means any applicable
Requirement of Law that, for environmental reasons, conditions,
restricts, prohibits or requires any notification, Remedial Action or
disclosure triggered by the closure of any Property, the transfer, sale
or lease of any Property or deed or title for any Property or any change
in the direct or indirect ownership or control of any Property,
including, but not limited to, any so-called "Industrial Site Recovery
Acts" or "Responsible Transfer Acts".
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY BASE RATE": 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 Notice of Borrowing) by
reference to the "British Bankers' Association Interest Settlement
Rates" for deposits in Dollars or the relevant Optional Currency (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 (rounded, if necessary, upward to
the nearest whole multiple of 1/16th of 1%); PROVIDED that (x) with
respect to any European Overdraft Loans or any other Eurocurrency Loan
having an Interest Period of seven (7) days or (y) to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions
of this definition, the "Eurocurrency Base Rate" shall be the
11
interest rate per annum determined by the Administrative Agent (or, in
the case of the European Overdraft Loans, by the European Overdraft
Lender) to be the average (rounded upward to the nearest whole multiple of
one-sixteenth of one percent (0.0625%) per annum, if such average is not
such a multiple) of the rates per annum at which deposits in Dollars or
the relevant Optional Currency are offered to major banks in the London
interbank market in London, England by CSFB at approximately 11:00 a.m.
(London time) on the date which is two Business Days prior to the
beginning of such Interest Period.
"EUROCURRENCY LOANS": Loans the rate of interest applicable to
which is based upon the Eurocurrency Rate.
"EUROCURRENCY RATE": with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined
for such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%, if the Eurocurrency Reserve Requirements are
greater than zero):
Eurocurrency Base Rate
________________________________________
1.00 - Eurocurrency Reserve Requirements
"EUROCURRENCY RESERVE REQUIREMENTS" means, for any day, that
percentage which is in effect on such day, as prescribed by the Federal
Reserve Board for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York, New York with deposits exceeding five billion
Dollars in respect of Eurocurrency Liabilities (or in respect of any
other category of liabilities which includes deposits by reference to
which the interest rate on Eurocurrency Rate Loans is determined or any
category of extensions of credit or other assets which includes loans by
a non-United States office of any bank to United States residents).
"EUROPEAN OVERDRAFT LENDER": Citibank, N.A. (and its successors
and permitted assigns), in its capacity as the lender of the European
Overdraft Loans.
"EUROPEAN OVERDRAFT COMMITMENT": $10,000,000 (or the Local
Equivalent thereof), as such amount may be adjusted from time to time in
accordance with the provisions of subsection 6.5
"EUROPEAN OVERDRAFT LOANS": as defined in subsection 6.1.
"EUROPEAN REVOLVING LOANS": as defined in subsection 5.1(a).
"EVENT OF DEFAULT": any of the events specified in Section 12,
PROVIDED that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"EXCHANGE ACT": the Securities Exchange Act of 1934 (as amended
from time to
12
time) and any successor statute.
"EXISTING AGREEMENT": as defined in the recitals.
"EXISTING TRANSACTION DOCUMENTS" means, collectively:
(a) the Strategic Alliance Agreement, the Subordinated Ciba Notes,
the Subordinated Ciba Notes Indenture, the Governance Agreement and all
other agreements contemplated by, or entered into by the Company and its
Subsidiaries pursuant to or in connection with, the Strategic Alliance
Agreement;
(b) the Asset Purchase Agreement relating to the acquisition by the
Company of the assets constituting the composite products division of
Hercules Incorporated and any other documents or agreements delivered
thereunder or in connection therewith; and
(c) the Asset Purchase Agreement relating to the acquisition by the
Company of the satellite division and certain other assets of Fiberite
Holdings Inc. and any other documents or agreements delivered thereunder or
in connection therewith.
"FEDERAL FUNDS EFFECTIVE RATE": 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 which is a Business Day,
the average of the quotations for the day of such transactions received by
the Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"FINANCING LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"FIXED CHARGES" means, for any period for any Person, the sum, without
duplication, of the amounts for such period of (i) Interest Expense of such
Person, (ii) the payments of principal on Indebtedness for borrowed money
required to be paid during such period by such Person, including, without
limitation, the principal component of Financing Lease obligations and
(iii) cash dividends paid in respect of Capital Stock by such Person.
"FIXED CHARGE COVERAGE RATIO" means, for any period of four
consecutive fiscal quarters, the ratio of (i) EBITDA of the Company and its
Subsidiaries for such period, MINUS Capital Expenditures paid by the
Company and its Subsidiaries during such period, PLUS Net Proceeds of asset
sales received during such period to the extent not included in the
calculation of EBITDA for such period to (ii) Fixed Charges of the Company
and its Subsidiaries for such period.
"FOREIGN BORROWERS": subject to the provisions of subsection 5.6, the
collective
13
reference to each of:
(i) Hexcel (U.K.) Limited, a corporation organized and existing
under the laws of England and Wales ("HEXCEL-U.K.");
(ii) Hexcel Composites Limited, a corporation organized and existing
under the laws of the United Kingdom ("COMPOSITES-UK");
(iii) Hexcel S.A., a French societe anonyme ("HEXCEL-FRANCE");
(iv) Hexcel Fabrics S.A., a French societe anonyme
("FABRICS-FRANCE");
(v) Hexcel Composites S.A., a French societe anonyme
("COMPOSITES-FRANCE");
(vi) Hexcel Composites S.A., a company organized and existing under
the laws of Belgium ("HEXCEL-BELGIUM");
(vii) Salver S.r.l., a limited liability company organized and
existing under the laws of Italy ("SALVER");
(viii) Hexcel Composites GmbH, a company organized and existing under
the laws of Austria ("COMPOSITES-AUSTRIA");
(ix) Hexcel Composites S.A., a corporation organized and existing
under the laws of Spain ("HEXCEL-SPAIN");
(x) Hexcel Composites GmbH, a corporation organized and existing
under the laws of Germany ("HEXCEL-GERMANY"); and
(xi) each other Foreign Borrower from time to time designated in
accordance with the provisions of subsection 7.19.
"FOREIGN BORROWER SUBLIMIT" means, with respect to (a) Composites-
Austria, $2,000,000, (b) Salver, $4,000,000 and (c) each other Foreign
Borrower, $35,000,000 (or, in each case, the Local Equivalent thereof), as
any such amount may be modified from time to time for the relevant Foreign
Borrower by the Company with the prior consent of the Administrative Agent
and any affected Local Lender.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA that is maintained or contributed to for
the benefit of the employees of the Company or any Commonly Controlled
Entity or any of the Company's Subsidiaries, but which is not covered by
ERISA pursuant to ERISA Section 4(b)(4).
"FOREIGN PENSION PLAN" means any Foreign Employee Benefit Plan that,
under applicable local law, is required to be funded through a trust or
other funding vehicle other than a trust or funding vehicle maintained by a
Governmental Authority.
14
"FOREIGN PLEDGE AGREEMENT": each pledge agreement (or analogous
agreement) by and between the Company or a Domestic Subsidiary, as
applicable, and the Collateral Agent pledging 65% of the ownership interest
(other than shares required by applicable law to be owned by another Person
for the qualification of directors or to satisfy minimum shareholder
requirements) held directly by the Company or such Domestic Subsidiary (as
the case may be) in each Material Subsidiary thereof (other than Hexcel
Chemical Products (U.K.) Limited, Hexcel Foreign Sales Corp. and Hexcel do
Brasil Servicos S/C Ltda.), as each such pledge agreement may be amended,
supplemented or otherwise modified from time to time.
"FOREIGN SUBSIDIARY": any Subsidiary of the Company organized under
the laws of any jurisdiction outside the United States of America.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time; PROVIDED that, for purposes of
determining compliance with the provisions of subsection 11.1, "GAAP" shall
mean generally accepted account principles in the United States of America
as in effect on December 31, 1996.
"GOVERNANCE AGREEMENT" means the Governance Agreement dated as of
February 29, 1996 by and between Chemical Holdings (as successor to Ciba-
Geigy Limited) and the Company, as the same may be amended, supplemented
or otherwise modified from time to time.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING PERSON"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other similar obligations (the "PRIMARY OBLIGATIONS") of any other third
Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
PROVIDED, HOWEVER, that the term Guarantee Obligation shall not include
endorsements of instruments for
15
deposit or collection in the ordinary course of business. The amount of
any Guarantee Obligation of any guaranteeing person shall be deemed to
be the lower of (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Company in good faith.
"GUARANTOR": any Person delivering a Guaranty pursuant to this
Agreement.
"GUARANTEES": the collective reference to (a) the Company Guaranty,
(b) the Subsidiary Guaranty and (c) each other guaranty hereafter delivered
to the Collateral Agent to support the obligations and liabilities of any
Borrower hereunder and under any of the other Credit Documents.
"INDEBTEDNESS": of any Person at any date (and without duplication),
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or similar instrument,
(c) all obligations of such Person under Financing Leases, (d) all
obligations of such Person in respect of acceptances issued or created for
the account of such Person and (e) all liabilities secured by any Lien on
any property owned by such Person even though such Person has not assumed
or otherwise become liable for the payment thereof; PROVIDED, HOWEVER, that
(i) for purposes of calculating compliance with the financial covenants
contained in subsection 11.1 only, the term "Indebtedness" shall include
only such obligations which would be reflected in a consolidated balance
sheet of the Company and its Subsidiaries prepared in accordance with GAAP
and (ii) for purposes of Section 12(e) only, the term "Indebtedness" shall
also include obligations under Interest Rate Agreements and obligations on
account of currency hedging arrangements.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTEREST COVERAGE RATIO": for any period of four consecutive fiscal
quarters, the ratio of (a) EBITDA of the Company and its Subsidiaries for
such period to (b) total Interest Expense of the Company and its
Subsidiaries for such period.
"INTEREST EXPENSE": for any period on a combined basis for any
Person, all of the following as determined in conformity with GAAP: (i)
total interest expense, whether paid or accrued (without duplication)
(including the interest component of Financing
16
Lease obligations for such period), including, without limitation, all
commissions, discounts and other fees and charges owed with respect to
letters of credit and net costs under Interest Rate Agreements, but
excluding, however, (w) amortization of discount, (x) capitalized debt
issuance costs, (y) interest paid in property other than cash and (z)
any other interest expense not payable in cash, MINUS (ii) any net
payments received during such period under Interest Rate Agreements.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the third Business
Day of each January, April, July and October for the period ending on (and
including) the last day of the immediately preceding December, March, June
or September, respectively, (b) as to any Eurocurrency Loan (including, in
any event, any European Overdraft Loan) having an Interest Period of three
months or less, the last day of such Interest Period and (c) as to any
Eurocurrency Loan (including, in any event, any European Overdraft Loan)
having an Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period (or, if such day is not a Business Day, the next succeeding Business
Day) and the last day of such Interest Period; PROVIDED that interest
payable on account of European Overdraft Loans shall be paid quarterly, on
the last Business Day of each March, June, September and December.
"INTEREST PERIOD": with respect to any Eurocurrency Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurocurrency Loan and
ending one, two, three or six months thereafter (or, unless any
Lender shall object thereto, nine months or seven days thereafter),
as selected by the relevant Borrower in its Notice of Borrowing given
with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurocurrency Loan and
ending one, two, three or six months thereafter (or, unless any
Lender shall object thereto, nine months or seven days thereafter),
as selected by the relevant Borrower by irrevocable notice to the
Administrative Agent delivered by 11:00 a.m. (New York City time or,
with respect to continuations of Loans denominated in Optional
Currencies, London, England time) not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
17
Termination Date shall end on the Termination Date;
(3) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(4) the relevant Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurocurrency Loan during an
Interest Period for such Loan;
PROVIDED, FURTHER, that European Overdraft Loans shall have an Interest
Period of one day.
"INTEREST RATE AGREEMENT": any interest rate swap, option, cap,
collar or insurance or any other agreement or arrangement with any Lender
(or any Affiliate thereof) which is designed to provide protection against
fluctuations in interest rates, and any renewals thereof or substitutions
therefor;
"INVESTMENT": any (a) advance, loan, extension of credit or capital
contribution to, (b) purchase of any stock, bonds, notes, debentures or
other securities of or any assets constituting a business unit of, or
similar investment in, or (c) for purposes of subsection 11.8(j) only,
incurrence of any Guarantee Obligation with respect to obligations of, any
Person.
"ISSUING LENDER": with respect to any Letter of Credit, CSFB or any
other Revolving Credit Lender appointed by the Company (PROVIDED that such
other Revolving Credit Lender is reasonably acceptable to the
Administrative Agent and agrees to serve in the capacity of Issuing
Lender), in its capacity as issuer thereof.
"L/C COMMITMENT": $30,000,000 (or the Local Equivalent thereof).
"L/C FEE PAYMENT DATE": the last Business Day of each March, June,
September, and December.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to subsection 3.5.
"L/C PARTICIPANTS": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the
Issuing Lender with respect thereto.
"LENDERS": the collective reference to the Revolving Credit Lenders,
the Swing Line Lender, the European Overdraft Lender and each Issuing
Lender.
"LETTERS OF CREDIT": as defined in paragraph 3.1.
18
"LEVERAGE RATIO": for any period of four consecutive fiscal quarters,
the ratio of Indebtedness of the Company and its Subsidiaries on a
consolidated basis as of the last day of such period to EBITDA of the
Company and its Subsidiaries for such period.
"LIABILITIES AND COSTS" means all liabilities, obligations,
responsibilities, losses and damages with respect to or arising out of any
of the following: personal injury, death, punitive damages, economic
damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment or public health or
welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or
Remedial Action studies), fines, penalties and monetary sanctions,
voluntary disclosures made to, or settlements with, the United States
Government, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future, including interest, if any, thereon.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
"LOAN": any Revolving Credit Loan, Swing Line Loan or European
Overdraft Loan, as the context shall require.
"LOCAL EQUIVALENT" means, with respect to any amount of Dollars at the
time of determination thereof, the equivalent of such currency in the
relevant Optional Currency determined at the rate of exchange quoted by the
Administrative Agent in New York, New York at 11:00 a.m. (local time) on
the date of determination, to prime banks in the jurisdiction of the
principal market for the trading of the relevant Optional Currency for the
spot purchase in such foreign exchange market of such amount of such
Optional Currency with such amount of Dollars.
"LOCAL EUROPEAN LOAN": as defined in subsection 5.1(a)(ii).
"LOCAL LENDER" means, with respect to Local European Loans borrowed by
(a) Hexcel-Belgium, Credit Suisse First Boston, (b) Salver, Istituto
Bancario San Paolo di Torino S.p.A., (c) Composites-Austria, Credit Suisse
First Boston and (d) Hexcel-Spain, Credit Suisse First Boston
Aktiengesellschaft and (e) any Additional Borrower, the Lender (or
affiliate thereof) which has delivered a Local Lender Joinder Agreement
with respect to such Additional Lender, in each case in such Local Lender's
capacity as the lender of such Local European Loans.
"LOCAL LENDER JOINDER AGREEMENT": a Local Lender Joinder Agreement,
substantially in the form of Exhibit J, delivered pursuant to subsection
7.19(b).
19
"LOCAL LOAN BORROWER": Hexcel-Belgium, Salver, Composites-Austria,
Hexcel-Spain and each other Foreign Borrower as to which a Local Lender has
agreed to make Local European Loans.
"MAJORITY LENDERS": at any time, Lenders having Revolving Credit
Commitment Percentages which aggregate more than 50% of the Aggregate
Revolving Credit Commitment then in effect or if the Aggregate Revolving
Credit Commitment has been terminated, then 50% of the Aggregate
Outstanding Extensions of Credit.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (i) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company and its Subsidiaries, taken as a
whole, (ii) the ability of the Borrowers or of the Subsidiary Guarantors,
taken as a whole, to perform their obligations under the Credit Documents
or (iii) the ability of the Lenders, the Collateral Agent or the
Administrative Agent to enforce the Credit Documents.
"MATERIAL SUBSIDIARY": each Foreign Borrower and each other
Subsidiary of the Company that has assets or annual revenues in excess of
$2,500,000.
"MULTICURRENCY SUBLIMIT" means, at any date, the amount equal to (a)
$200,000,000 MINUS (b) the aggregate principal amount of Indebtedness then
outstanding which was incurred pursuant to subsection 11.2(g).
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"NET INCOME" means, for any period for any Person, the net income (or
loss) after taxes for such period taken as a single accounting period,
determined in conformity with GAAP.
"NET PROCEEDS": with respect to any Net Proceeds Event or series of
related Net Proceeds Events in which the aggregate proceeds is in excess of
$1,000,000 (or the Local Equivalent thereof), (a) the gross cash
consideration, and all cash proceeds (as and when received) of non-cash
consideration (including, without limitation, any such cash proceeds in the
nature of principal and interest payments on account of promissory notes or
similar obligations), received by the Company and its Subsidiaries in
connection with such Net Proceeds Event, MINUS (b) the sum, without
duplication, of (i) any taxes which are paid or actually payable to any
federal, state, local or foreign taxing authority by the Company and its
Subsidiaries and are directly attributable to the receipt of such Net
Proceeds, (ii) the amount of fees and commissions (including reasonable
investment banking fees payable to Persons other than Affiliates of the
Company) legal, accounting, consulting, survey, title and recording tax
expenses and other costs and expenses directly incident to such Net
Proceeds Event which are paid or payable by the Company and its
Subsidiaries, (iii) the amount of such net cash proceeds which are
attributable to (and payable to) minority interests, (iv) the amount of any
reserve reasonably maintained by the Company and its Subsidiaries with
respect to indemnification obligations owing
20
pursuant to the definitive documentation pursuant to which the Net
Proceeds Event is consummated (with any unused portion of such reserve
to constitute Net Proceeds on the date upon which the indemnification
obligations terminate) and (v) the amount of Indebtedness (other than
intercompany Indebtedness), if any, which is required to be repaid at
the time or as a result of such Net Proceeds Event out of the proceeds
thereof;
"NET PROCEEDS EVENT": (a) the sale, transfer or other disposition by
the Company or any of its Subsidiaries of any real or personal, tangible or
intangible, property (including, without limitation, any Capital Stock, but
other than inventory and obsolete or worn-out property which is sold,
transferred or otherwise disposed of in the ordinary course of business) of
the Company or such Subsidiary to any Person (other than to the Company or
any of its Subsidiaries) and (b) the recovery by the Company and its
Subsidiaries of amounts owing to them under property insurance policies.
"NON-EXCLUDED TAXES": as defined in subsection 7.14(a).
"NOTE": a Revolving Credit Note or a Swing Line Note, as the context
shall require; collectively, the "NOTES."
"NOTICE OF BORROWING": with respect to (a) any borrowing of Loans, a
Notice of Borrowing (Drawings), substantially in the form of Exhibit F-1,
(b) any conversion of Loans, a Notice of Borrowing (Conversions),
substantially in the form of Exhibit F-2 and (c) any continuation of
Eurocurrency Loans, a Notice of Borrowing (Continuations), substantially in
the form of Exhibit F-3 hereto.
"NPL": as defined in subsection 8.15(f).
"OBLIGATIONS" means, to the extent arising hereunder, under the Notes
or under any other Credit Document, all Loans, advances, debts, liabilities
and obligations owing by (as applicable) the Borrowers or any Domestic
Subsidiary that has executed a Domestic Guaranty to the Administrative
Agent, any Lender, any Affiliate of the Administrative Agent or any Lender
or any Person entitled to indemnification pursuant to subsection 13.7, of
any kind or nature, present or future, whether or not evidenced by any
note, guaranty or other instrument, whether or not for the payment of
money, whether arising (i) under or in connection with any cash management
services provided by the Administrative Agent or any Affiliate of the
Administrative Agent, or (ii) by reason of (A) an extension of credit, (B)
opening or amendment of a Letter of Credit or payment of any draft drawn
thereunder, (C) loan, (D) guaranty or (E) indemnification or (iii) in any
other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, reasonable attorneys'
fees and disbursements and any other sum chargeable to the Borrowers
hereunder or under any other Credit Document.
"OPTIONAL CURRENCY": the lawful currency of Austria (Austrian
shillings), Belgium (Belgian francs), France (French francs), Germany
(Deutschemarks), The
21
Netherlands (Dutch guilders), the United Kingdom (British pounds
sterling ("Euro sterling")), Italy (Italian lire), Spain (Spanish
pesetas) or any other jurisdiction which the Company has requested in
writing to have designated as an "Optional Currency" and as to which
each Revolving Credit Lender (or the European Overdraft Lender, in the
case of European Overdraft Loans to be made in such currency) has agreed
in writing to such designation.
"PARTICIPANT": as defined in subsection 14.7(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"PERMITTED BELGIAN CAPITAL": Investments made by the Company and its
Subsidiaries in Hexcel-Belgium and acquisitions by the Company and its
Subsidiaries of assets of Hexcel-Belgium in order to provide capital to
Hexcel-Belgium; PROVIDED that (a) the aggregate principal amount of such
Investments (other than Investments taking the form of intercompany loans)
and acquisitions shall not exceed $20,000,000 (or the Local Equivalent
thereof) and (b) the aggregate principal amount of such Investments which
take the form of intercompany loans shall not at any one time exceed the
amount equal to $20,000,000 (or the Local Equivalent thereof).
"PERMITTED SUBORDINATED INDEBTEDNESS": the collective reference to
(a) the Subordinated Debentures, (b) the Subordinated Convertible Notes and
(c) the Subordinated Ciba Notes.
"PERSON": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENTS": the collective reference to (a) the Company
Pledge Agreement, (b) the Foreign Pledge Agreements and (c) the Subsidiary
Pledge Agreements.
"PRICING ADJUSTMENT EVENT": the failure of Specialty Chemicals to
beneficially own (directly or indirectly) at least 30% of the issued and
outstanding voting stock of the Company.
"PRIME RATE": 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.
22
"PROPERTY" means any real or personal property, including plant,
building, facility, structure, underground storage tank or unit, equipment,
inventory, general intangible, receivable, or other asset owned, leased or
operated by the Company or any of its Subsidiaries, as applicable
(including any surface water thereon or adjacent thereto, and soil and
groundwater thereunder).
"REFUNDED SWING LINE LOANS": as defined in subsection 4.3(a).
"REGISTER": as defined in subsection 14.7(d).
"REGULATION U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"REIMBURSEMENT OBLIGATION": the obligation of the Company to
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts drawn
under Letters of Credit issued by it.
"RELEASE" means release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the
indoor or outdoor environment or into or out of any Property, including the
movement of Contaminants through or in the air, soil, surface water,
groundwater or Property.
"REMEDIAL ACTION" means actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
' 2615.
"REQUIRED LENDERS": at any time, Lenders having Revolving Credit
Commitment Percentages which aggregate more than 66-2/3% of the sum of the
Aggregate Revolving Credit Commitment then in effect or if the Aggregate
Revolving Credit Commitment has been terminated, then 66-2/3% of the
Aggregate Outstanding Extensions of Credit.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
23
"RESERVED PROCEEDS": at any date, the aggregate amount of Net
Proceeds received by the Company and its Subsidiaries on account of any Net
Proceeds Event described in clause (a) of the definition of such term which
was consummated within the immediately preceding 180 days, other than any
such Net Proceeds which (x) have been reinvested in assets similar to those
from which such Net Proceeds were derived during such 180-day period or (y)
have been applied in accordance with the terms of subsection 7.5(f) (it
being understood that amounts not so applied pursuant to the provisions of
clause (x) or (y) of the proviso to subsection 7.5(f) shall be deemed not
to constitute "Reserved Proceeds").
"RESPONSIBLE OFFICER": with respect to:
(a) any Borrower, the chief executive officer, chief operating
officer, senior vice president for finance and administration or chief
financial officer of the Company or, with respect to financial matters, the
senior vice president for finance and administration, chief financial
officer, treasurer or controller of such Borrower; and
(b) any Borrower (other than the Company) which does not have any of
the relevant officers described in clause (a) above, the senior manager,
financial manager or equivalent position (as applicable) of such Borrower.
"REVOLVING CREDIT COMMITMENT": as to any Revolving Credit Lender, its
obligation to make Revolving Credit Loans to and/or issue or participate in
Swing Line Loans and/or Letters of Credit issued on behalf of the Borrowers
hereunder in an aggregate principal and/or face amount at any one time
outstanding not to exceed the amount set forth opposite such Revolving
Credit Lender's name on Schedule I under the heading "Revolving Credit
Commitment".
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Revolving Credit
Lender at any time, the percentage which such Revolving Credit Lender's
Revolving Credit Commitment then constitutes of the Aggregate Revolving
Credit Commitment (or, at any time after the Aggregate Revolving Credit
Commitment shall have expired or terminated, the Revolving Credit
Commitment Percentage of such Lender immediately prior to such expiry or
termination).
"REVOLVING CREDIT LENDERS": each bank or other financial institution
holding a Revolving Credit Commitment hereunder (or, after the last day of
the Commitment Period, having any Aggregate Outstanding Extensions of
Credit hereunder); collectively, the "REVOLVING CREDIT LENDERS".
"REVOLVING CREDIT LOANS": as defined in subsection 2.1.
"REVOLVING CREDIT NOTE": as defined in subsection 7.1(e).
"SECURITY DOCUMENTS": the collective reference to the Company Pledge
Agreement, the Subsidiary Pledge Agreement, the Foreign Pledge Agreements
and all
24
other security documents hereafter delivered to the Administrative Agent
or the Collateral Agent granting a Lien on any asset or assets of any
Person to secure the Loans and other obligations and liabilities of any
Borrower hereunder and under any of the other Credit Documents or to
secure any guarantee thereof.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"SOLVENT", when used with respect to any Person, means that at the
time of determination, (A) (i) the fair market value of its assets is in
excess of the total amount of its liabilities (including, without
limitation, contingent liabilities), and (ii) the present fair saleable
value of its assets is greater than its probable liability on its existing
debts as such debts become absolute and matured, and (iii) it is then able
and expects to be able to pay its debts (including, without limitation,
contingent debts and other commitments) as they mature, and (iv) it has
capital sufficient to carry on its business as conducted and as proposed to
be conducted; and (B) with respect to Hexcel-U.K. and Composites-UK only,
such Person is not unable to pay its debts within the meaning of Section
123 of the Insolvency Act of 1986, and will not become unable to pay its
debts within the meaning of that Section in consequence of its entry into
the Credit Agreement and Transaction Documents.
"SPECIALTY CHEMICALS": the collective reference to Chemical Holdings
and Ciba Specialty Chemicals Corporation, a Delaware corporation, and their
successors.
"STANDBY LETTER OF CREDIT": as defined in subsection 3.1(b).
"STRATEGIC ALLIANCE AGREEMENT" means the Strategic Alliance Agreement
dated as of September 29, 1995 and amended as of December 12, 1995 and as
of February 28, 1996, among the Company and Specialty Chemicals (as
successor to Ciba-Geigy Limited and Ciba-Geigy Corporation), as such
agreement may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 11.14.
"SUBORDINATED CIBA NOTES": the Increasing Rate Senior Subordinated
Notes, due 2003, issued or to be issued by the Company in an aggregate
principal amount not to exceed $43,000,000 (as such amount may be adjusted
in accordance with the Strategic Alliance Agreement) and governed by the
terms of the Subordinated Ciba Notes Indenture.
"SUBORDINATED CIBA NOTES INDENTURE": the Indenture, dated as of
February 29, 1996, between the Company and First Trust of California, N.A.,
as trustee, as such agreement has been amended pursuant to the First
Supplemental Indenture, dated as of June 27, 1996, thereto and as such
agreement may be further amended, supplemented or otherwise modified from
time to time in accordance with the terms of this Agreement.
"SUBORDINATED CONVERTIBLE NOTES": the 7% Convertible Subordinated
Notes, due 2003, issued by the Company in the aggregate original principal
amount of up to
25
$115,000,000 and governed by the terms of the Subordinated Convertible
Notes Indenture.
"SUBORDINATED CONVERTIBLE NOTES INDENTURE": the Indenture, dated as
of July 24, 1996, between the Company and First Trust of California,
National Association, as trustee, as such agreement may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms of this Agreement.
"SUBORDINATED DEBENTURES": the 7% Convertible Subordinated Debentures,
due 2011, issued by the Company in the aggregate original principal amount
of up to $35,000,000 and governed by the terms of the Subordinated
Debenture Indenture.
"SUBORDINATED DEBENTURE INDENTURE": the Indenture, dated as of August
1, 1986, between the Company and The Bank of California, N.A., as trustee,
as such agreement may be amended, supplemented or otherwise modified from
time to time in accordance with the terms of this Agreement.
"SUBSIDIARY": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person; PROVIDED, that Hexcel
Foundation shall not be deemed a Subsidiary of the Company for as long as
it maintains its status as a not-for-profit corporation for purposes of
California law. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"SUBSIDIARY GUARANTOR": each Subsidiary of the Company which is party
to a Subsidiary Guaranty.
"SUBSIDIARY GUARANTY": the Guaranty, substantially in the form of
Exhibit D-1, made by each Domestic Subsidiary of the Company in favor of
the Collateral Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"SUBSIDIARY PLEDGE AGREEMENT": the Pledge Agreement, substantially in
the form of Exhibit D-2, made by certain Domestic Subsidiaries of the
Company in favor of the Collateral Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"SWING LINE COMMITMENT": at any date, the obligation of the Swing
Line Lender to make Swing Line Loans pursuant to subsection 6.1 in the
amount referred to therein.
"SWING LINE LENDER": CSFB.
26
"SWING LINE LOANS": as defined in subsection 4.1.
"SWING LINE NOTE": as defined in subsection 7.1(e).
"SYNDICATED EUROPEAN LOAN": as defined in subsection 5.1(a)(i).
"SYNDICATION AGENT": as defined in the preamble.
"TERMINATION DATE": March 4, 2003.
"TRANCHE": the collective reference to Eurocurrency Loans having
then current Interest Periods which begin on the same date and end on
the same later date (whether or not such Loans shall originally have
been made on the same day); Tranches may be identified as "EUROCURRENCY
TRANCHES".
"TRANSACTION DOCUMENTS" means the Credit Documents and all other
agreements or instruments executed and delivered or to be executed and
delivered pursuant hereto or thereto or in connection herewith or
therewith or any of the transactions contemplated hereby or thereby.
"TRANSFEREE": as defined in subsection 14.7(h).
"TYPE": as to any Loan, its nature as an ABR Loan or a Eurocurrency
Loan.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"WHOLLY-OWNED SUBSIDIARY": with respect to any Person, a
corporation, company having limited liability or societe anonyme, 100%
(or in the case of any entity which is organized under the laws of a
jurisdiction outside of the United States of America, 98%) of the
Capital Stock of which is owned, directly or indirectly, by such Person
(other than shares required by applicable law to be owned by another
Person for the qualification of directors or to satisfy minimum
shareholder requirements).
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular
27
provision of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
2.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("REVOLVING CREDIT LOANS") to the Company from time to
time during the Commitment Period; PROVIDED that, after giving effect to the
making of such Revolving Credit Loan and the use of proceeds thereof, (i) the
Aggregate Outstanding Extensions of Credit of all Revolving Credit Lenders
shall not exceed the Aggregate Revolving Credit Commitment then in effect and
(ii) the Available Revolving Credit Commitment of such Lender shall not be
less than zero. During the Commitment Period the Company may use the
Aggregate Revolving Credit Commitment by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurocurrency Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Company and notified to the Administrative Agent in
accordance with subsections 2.2 and 7.6, PROVIDED that (x) no Revolving
Credit Loan shall be made as a Eurocurrency Loan after the day that is one
month prior to the Termination Date and (y) any Revolving Credit Loans to be
made on the Closing Date initially shall be made as ABR Loans.
2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Company may
borrow Revolving Credit Loans under the Aggregate Revolving Credit Commitment
during the Commitment Period on any Business Day, PROVIDED that the Company
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 11:00 A.M., New York City time,
(a) three Business Days prior to the requested Borrowing Date, if all or any
part of the requested Revolving Credit Loans are to be initially Eurocurrency
Loans or (b) on the requested Borrowing Date, otherwise), specifying (i) the
amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurocurrency Loans, ABR Loans or a combination thereof
and (iv) if the borrowing is to be entirely or partly of Eurocurrency Loans,
the amount of such Type of Loan and the length of the initial Interest Period
therefor. Each borrowing under the Aggregate Revolving Credit Commitment
(other than any borrowing of Swing Line Loans or of Revolving Credit Loans
the proceeds of which are used to refund Swing Line Loans) shall be in an
amount equal to (x) in the case of ABR Loans, $2,000,000 or a whole multiple
of $1,000,000 in excess thereof (or, if the then Available Revolving Credit
Commitments are less than $2,000,000, such lesser amount) and (y) in the case
of Eurocurrency Loans, $2,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Company, the
Administrative Agent shall promptly notify each Revolving Credit Lender
thereof. Each Revolving Credit Lender will make the amount of its Revolving
Credit Commitment Percentage of each borrowing available to the
28
Administrative Agent for the account of the Company at the office of the
Administrative Agent specified in subsection 14.3 prior to 1:00 P.M., New
York City time, on the Borrowing Date requested by the Company in funds
immediately available to the Administrative Agent. Such borrowing will then
be made available to the Company by the Administrative Agent crediting the
account of the Company on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Revolving Credit
▇▇▇▇▇▇ and in like funds as received by the Administrative Agent.
2.3 USE OF PROCEEDS OF REVOLVING CREDIT LOANS. (a) The proceeds
of the Revolving Credit Loans shall be utilized by the Company for general
corporate purposes of the Company and its Subsidiaries.
SECTION 3. AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY
3.1 L/C COMMITMENT. (a) Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in subsection 3.4(a), agrees to issue
letters of credit ("LETTERS OF CREDIT") for the account of any Borrower on
any Business Day during the Commitment Period in such form as may be approved
from time to time by such Issuing Lender; PROVIDED that such Issuing Lender
shall have no obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment, (ii) the Available Revolving Credit Commitment of any Revolving
Credit Lender would be less than zero or (iii) the Aggregate Outstanding
Extensions of Credit of all Revolving Credit Lenders would exceed the
Aggregate Revolving Credit Commitment then in effect.
(b) Each Letter of Credit shall (i) be denominated in Dollars or
an Optional Currency, (ii) be (x) a standby letter of credit (a "STANDBY
LETTER OF CREDIT") issued to support obligations of the Company or any of its
Subsidiaries, contingent or otherwise, or to finance the working capital and
business needs of the Company or any of its Subsidiaries in the ordinary
course of business (including, without limitation, to secure or support lines
of credit obtained by Foreign Subsidiaries in accordance with the terms
hereof) or (y) a commercial letter of credit (a "COMMERCIAL LETTER OF
CREDIT") issued in respect of the purchase of goods or services by the
Company and its Subsidiaries in the ordinary course of business and (iii)
expire no later than the earlier of (x) the date that is 12 months after the
date of its issuance and (y) five Business Days prior to the Termination
Date; PROVIDED that any Letter of Credit with an expiration date occurring up
to twelve months after such Letter of Credit's date of issuance may be
automatically renewable for subsequent 12-month periods (but in no event to a
date which is later than five Business Days prior to the Termination Date)
unless the Issuing Lender with respect to such Letter of Credit shall have
given 60 days' prior written notice to the relevant Borrower and the
beneficiary of such Letter of Credit that it will not be renewed.
Notwithstanding the foregoing, at the request of any Borrower and with the
consent of the Administrative Agent, any Letter of Credit issued for the
account of such Borrower may have an expiration date which is later than the
date set forth in clause (iii)(x) and (y) above, PROVIDED that such Borrower
agrees that, from and after the Termination Date, it shall provide to the
Administrative Agent, as collateral security for the L/C Obligations on
account of such Letter of Credit, an amount of cash which is equal to at
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least 105% of the face amount thereof.
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(d) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if (i) such issuance would conflict with, or cause
such Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law or (ii) in the case of any requested Letter
of Credit to be denominated in an Optional Currency, such Issuing Lender is
not reasonably satisfied that deposits in the relevant Optional Currency will
be freely available to it for the relevant period of time.
3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. Any Borrower may
request that an Issuing Lender issue a Letter of Credit at any time during
the Commitment Period by delivering to such Issuing Lender (with a copy to
the Administrative Agent) at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as
the Issuing Lender may reasonably request. Upon receipt of any Application,
the Issuing Lender will process such Application and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly
issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days (or, in the case of Letters of Credit denominated in Optional
Currencies, four Business Days) after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by such Issuing Lender and
the relevant Borrower. Each Issuing Lender shall furnish to the Company and
the Administrative Agent a copy of each Letter of Credit issued by such
Issuing Lender, promptly following the issuance thereof.
3.3 FEES, COMMISSIONS AND OTHER CHARGES. (a) The Borrowers shall
pay to the Administrative Agent, for the account of the relevant Issuing
Lender and the L/C Participants, a letter of credit fee with respect to each
Standby Letter of Credit, computed for the period from and including the date
of issuance of such Letter of Credit to the expiration date of such Standby
Letter of Credit, at a rate per annum equal to the Applicable Margin then in
effect for Revolving Credit Loans which are Eurocurrency Loans (calculated on
the basis of the actual number of days elapsed over a 360-day year) of the
aggregate face amount of Standby Letters of Credit outstanding (of which 1/4
of 1% of such aggregate face amount shall be for the account of the Issuing
Lender with respect thereto and the remainder of such amount shall be for the
ratable account of such Issuing Lender and the L/C Participations). Such fee
shall be payable to the Administrative Agent, for the ratable account of the
Revolving Credit Lenders, in arrears on each L/C Fee Payment Date (commencing
on June 30, 1998, for the period ending on, and including, the last day of
the immediately preceding December, March, June or September, respectively)
and on the Termination Date.
(b) The Borrowers shall pay to the Administrative Agent, for the
account of the relevant Issuing Lender and the L/C Participants, a letter of
credit fee with respect to each
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Commercial Letter of Credit at a flat rate equal to 50% of the Applicable
Margin then in effect for Revolving Credit Loans which are Eurocurrency Loans
(calculated on the basis of the actual number of days elapsed over a 360-day
year) of the aggregate face amount of such Commercial Letter of Credit
outstanding (of which 1/4 of 1% of such aggregate face amount shall be for
the account of the Issuing Lender with respect thereto and the remainder of
such amount shall be for the ratable account of such Issuing Lender and the
L/C Participations). Such fee shall be payable to the Administrative Agent,
for the ratable account of the Revolving Credit Lenders, on the first L/C Fee
Payment Date (commencing on June 30, 1998, for the period ending on, and
including, the last day of the immediately preceding December, March, June or
September, respectively) to occur following the issuance of such Commercial
Letter of Credit.
(c) In addition to the foregoing fees and commissions, the
Borrowers shall pay or reimburse the Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by such Issuing
Lender in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit issued by it.
(d) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the relevant Issuing Lender and the L/C Participants
all fees and commissions received by the Administrative Agent for their
respective accounts pursuant to this subsection.
3.4 L/C PARTICIPATIONS. (a) Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce
such Issuing Lender to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from such Issuing Lender, on the terms and conditions hereinafter
stated, for such L/C Participant's own account and risk an undivided interest
equal to such L/C Participant's Revolving Credit Commitment Percentage from
time to time in effect in such Issuing Lender's obligations and rights under
each Letter of Credit issued by such Issuing Lender hereunder and the amount
of each draft paid by such Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with such Issuing Lender that, if a
draft is paid under any Letter of Credit issued by such Issuing Lender for
which such Issuing Lender is not reimbursed in full by the relevant Borrower
in accordance with the terms of this Agreement, such L/C Participant shall
pay to such Issuing Lender upon demand at such Issuing Lender's address for
notices specified herein an amount equal to such L/C Participant's then
Revolving Credit Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed; PROVIDED that, if such demand is
made prior to 12:00 Noon, New York City time, on a Business Day, such L/C
Participant shall make such payment to such Issuing Lender prior to the end
of such Business Day and otherwise such L/C Participant shall make such
payment on the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant to an
Issuing Lender pursuant to paragraph 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit
is paid to such Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Lender on
demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal funds rate, as quoted by such Issuing Lender, during
the period from and including the date such payment is required to the date
on which such payment is immediately available to
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such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant
to paragraph 3.4(a) is not in fact made available to such Issuing Lender by
such L/C Participant within three Business Days after the date such payment
is due, such Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to ABR Loans hereunder. A
certificate of an Issuing Lender submitted to any L/C Participant with
respect to any amounts owing to such Issuing Lender under this subsection
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment
under any Letter of Credit issued by it and has received from any L/C
Participant its Revolving Credit Commitment Percentage of such payment in
accordance with subsection 3.4(a), such Issuing Lender receives any payment
related to such Letter of Credit (whether directly from the relevant Borrower
or otherwise, including proceeds of collateral applied thereto by such
Issuing Lender), or any payment of interest on account thereof, such Issuing
Lender will promptly distribute to such L/C Participant its Revolving Credit
Commitment Percentage thereof; PROVIDED, HOWEVER, that in the event that any
such payment received by such Issuing Lender and distributed to the L/C
Participants shall be required to be returned by such Issuing Lender, each
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
3.5 REIMBURSEMENT OBLIGATION OF THE BORROWERS. (a) Each Borrower
agrees to reimburse the relevant Issuing Lender on the same Business Day on
which a draft is presented under any Letter of Credit issued by such Issuing
Lender for the account of such Borrower and paid by such Issuing Lender,
PROVIDED that such Issuing Lender provides notice to such Borrower prior to
12:00 Noon, New York City time, on such Business Day and otherwise such
Borrower will reimburse the Issuing Lender on the next succeeding Business
Day; PROVIDED, FURTHER, that the failure to provide such notice shall not
affect the absolute and unconditional obligation of such Borrower to
reimburse the relevant Issuing Lender for any draft paid under any Letter of
Credit issued by it. Each Issuing Lender shall provide notice to the
relevant Borrower on such Business Day as a draft is presented and paid by
such Issuing Lender indicating the amount of (i) such draft so paid and (ii)
any taxes, fees, charges or other costs or expenses incurred by such Issuing
Lender in connection with such payment. Each such payment shall be made to
such Issuing Lender at its address for notices specified herein in lawful
money of the currency in which such Letter of Credit was denominated and in
immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrowers under this subsection from the date such amounts
become payable until payment in full at (i) in the case of amounts owing in
Dollars, the rate which would be payable on any outstanding Loans that are
ABR Loans which were then overdue and (ii) in the case of amounts owing in
Optional Currencies, the rate reasonably determined by the Issuing Lender as
reflecting its cost of funds for the maintenance of such extension of credit
on an overnight basis PLUS 2% above the Applicable Margin then in effect for
ABR Loans.
(c) Each drawing under any Letter of Credit shall constitute a
request by
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the relevant Borrower to the Administrative Agent for a borrowing of ABR
Loans (in the case of Letters of Credit denominated in Dollars) or Local
European Loans (in the case of Letters of Credit denominated in Optional
Currencies) in the amount and currency of such drawing. The Borrowing Date
with respect to such borrowing shall be the date of such drawing.
3.6 OBLIGATIONS ABSOLUTE. (a) The obligations of each Borrower
under subsection 3.5(a) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which any Borrower may have or have had against the relevant Issuing
Lender, any L/C Participant or any beneficiary of a Letter of Credit.
(b) Each Borrower also agrees with each Issuing Lender that such
Issuing Lender shall not be responsible for, and such Borrower's
Reimbursement Obligations under subsection 3.5(a) shall not be affected by,
among other things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or (ii) any dispute between or among such
Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or (iii) any claims whatsoever
of such Borrower against any beneficiary of such Letter of Credit or any such
transferee.
(c) Neither the Issuing Lender with respect to any Letter of
Credit nor any L/C Participant with respect thereto shall be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with such Letter
of Credit, except for errors or omissions caused by such Issuing Lender's
gross negligence or willful misconduct.
(d) Each Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit issued by it
or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of care
specified in the Uniform Commercial Code of the State of New York, shall be
binding on such Borrower and shall not result in any liability of such
Issuing Lender or any L/C Participant to such Borrower.
3.7 LETTER OF CREDIT PAYMENTS. If any draft shall be presented
for payment under any Letter of Credit, the responsibility of the Issuing
Lender thereof to the relevant Borrower in connection with such draft shall,
in addition to any payment obligation expressly provided for in such Letter
of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit.
3.8 APPLICATION. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 3, the provisions of this Section 3 shall apply.
3.9 ISSUING LENDER REPORTING REQUIREMENTS. Each Issuing Lender
shall, no later than the fifth Business Day following the last day of each
calendar month and on the last
33
Business Day of each calendar quarter (or, to the extent that the
Administrative Agent so agrees, not more than two Business Days thereafter),
provide to the Administrative Agent and the Company separate schedules for
Commercial Letters of Credit and Standby Letters of Credit issued by such
Issuing Lender, in form and substance reasonably satisfactory to the
Administrative Agent, setting forth the aggregate L/C Obligations outstanding
to such Issuing Lender at the end of each month or calendar quarter, as the
case may be, and any information requested by the Administrative Agent or the
Company relating to the date of issue, account party, amount, expiration date
and reference number of each Letter of Credit issued by it. Promptly
following receipt by the Administrative Agent of the quarterly schedule, the
Administrative Agent shall provide to each Revolving Credit Lender a report
containing such information.
3.10 TRANSITIONAL PROVISIONS. Schedule 3.10 lists certain letters
of credit issued prior to the date hereof by the Revolving Credit Lenders for
the account of the Borrowers. On the Closing Date, (i) such letters of
credit, to the extent outstanding, shall be automatically and without further
action by the parties thereto converted to Letters of Credit Issued pursuant
to this Section 3 for the account of the Borrower who presently is the
account party thereunder and subject to the provisions hereof, and for this
purpose the fees specified in Sections 3.3 shall be payable (in substitution
for any fees set forth in the reimbursement agreement relating to such
letters of credit) as if such letters of credit had been issued on the
Closing Date and (ii) the face amount of such letters of credit shall be
included in the calculation of the aggregate amount of outstanding L/C
Obligations. No letter of credit converted in accordance with this
subsection 3.10 shall be amended, extended or renewed without the prior
written consent of the Administrative Agent. To the extent that any fees
with respect to the letters of credit listed on Schedule 3.10 were paid in
advance to the issuing bank under such letter of credit, the Administrative
Agent shall use reasonable efforts (but shall otherwise not be obligated) to
obtain a PRO RATA refund for the relevant Borrower of such fees to the extent
such fees were paid in respect of any time period during which such letter of
credit shall be a letter of credit on account of the provisions of this
subsection. Notwithstanding anything set forth in Section 3.2(c)(A), to the
extent that any letter of credit listed on Schedule 3.10 has an expiration
date in excess of one year, such letter of credit shall continue in full
force and effect pursuant to the terms hereof after the Closing Date through
its stated expiration date (but shall be cash collateralized upon terms
reasonably satisfactory to the relevant Issuing Lender during the period from
the Termination Date through such stated expiration date).
SECTION 4. AMOUNT AND TERMS OF SWING LINE SUB-FACILITY
4.1 SWING LINE COMMITMENTS. (a) Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make swing line loans (the
"SWING LINE LOANS") to the Company on any Business Day from time to time
during the Commitment Period in an aggregate principal amount not to exceed
$15,000,000 at any one time outstanding; PROVIDED that, after giving effect
to the making of such Swing Line Loan, the Aggregate Outstanding Extensions
of Credit of all Revolving Credit Lenders shall not exceed the Aggregate
Revolving Credit Commitment then in effect. Amounts borrowed under this
subsection 4.1 may be repaid and, to but excluding the Termination Date,
reborrowed.
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(b) All Swing Line Loans shall be made and maintained as ABR Loans
and, notwithstanding the provisions of subsection 7.6, shall not be entitled
to be converted into Eurocurrency Loans; PROVIDED that nothing contained in
this subsection 4.1 shall prohibit the conversion into Eurocurrency Loans of
any Revolving Credit Loans the proceeds of which are utilized to refund Swing
Line Loans.
4.2 PROCEDURE FOR SWING LINE LOAN BORROWING. The Company may
borrow under the Swing Line Commitment during the Commitment Period on any
Business Day; PROVIDED that the Company shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 1:30 P.M., New York City time), on the requested borrowing date
(which shall be a Business Day) specifying the amount of each requested Swing
Line Loan, which shall be in a minimum amount of $1,000,000 or a multiple of
$100,000 in excess thereof. Upon receipt of any such notice from the Company
the Administrative Agent shall promptly notify the Swing Line Lender thereof.
The Swing Line Lender will make the amount of its Swing Line Loan available
to the Administrative Agent for the account of the Company at the office of
the Administrative Agent specified in subsection 14.3 prior to 2:30 P.M., New
York City time, on the Borrowing Date requested by the Company in funds
immediately available to the Administrative Agent. The proceeds of each
Swing Line Loan will then be made immediately available to the Company by the
Administrative Agent crediting the account of the Company on the books of
such office with the amount made available to the Administrative Agent by the
Swing Line Lender and in like funds as received by the Administrative Agent.
4.3 REFUNDING OF SWING LINE LOANS. (a) The Administrative Agent,
at any time in its sole and absolute discretion, may (or, upon the request of
the Swing Line Lender, shall) on behalf of the Company (which hereby
irrevocably directs the Administrative Agent to act on its behalf) request
that each Revolving Credit Lender make a Revolving Credit Loan in an amount
equal to such Lender's Revolving Credit Commitment Percentage of the then
outstanding principal amount of Swing Line Loans (the "REFUNDED SWING LINE
LOANS") on the date such notice is given (regardless of whether the Refunded
Swing Line Loans comply with the minimum borrowing provisions of subsection
4.2). In the event that the Swing Line Lender makes its request for
refunding of the Swing Line Loans, each Revolving Credit Lender shall make
the proceeds of its Revolving Credit Loan available in immediately available
funds to the Administrative Agent, for the benefit of the Swing Line Lender,
at the office of the Administrative Agent specified in subsection 14.3 prior
to 11:00 A.M., New York City time, on the first Business Day following such
request (or, if such request is made prior to 10:00 A.M., New York City time,
on any date, then the proceeds of such Revolving Credit Loans shall instead
be so made available to the Administrative Agent prior to 2:00 P.M., New York
City time, on the date of such request); PROVIDED, HOWEVER, that in the event
that any Bankruptcy Event shall have occurred and be continuing, the
Revolving Credit Lenders shall not make such Revolving Credit Loans and the
provisions of subsection 6.3(b) shall apply.
(b) If, prior to the making of a Revolving Credit Loan pursuant to
subsection 4.3(a), a Bankruptcy Event shall have occurred and be continuing,
each Revolving Credit Lender will, on the date such Revolving Credit Loan was to
have been made, purchase from the Swing
35
Line Lender an undivided participating interest in the Swing Line Loan to be
refunded in an amount equal to its Revolving Credit Commitment Percentage of
such Swing Line Loan to be refunded. Each Revolving Credit Lender will
immediately transfer to the Administrative Agent, in immediately available
funds, the amount of its participation.
(c) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Revolving Credit Lender's participating
interest in a Swing Line Loan to be refunded pursuant to subsection 4.3(b),
the Swing Line Lender receives any payment on account thereof, the Swing Line
Lender will distribute to such Revolving Credit Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit
Lender's participating interest was outstanding and funded) in like funds as
received; PROVIDED, HOWEVER, that in the event that such payment received by
the Swing Line Lender is required to be returned, such Revolving Credit
Lender will return to the Swing Line Lender any portion thereof previously
distributed by the Swing Line Lender to it in like funds as such payment is
required to be returned by the Swing Line Lender (together with such
Revolving Credit Lender's ratable share of any interest required to be paid
by the Swing Line Lender upon such return).
4.4 UNCONDITIONAL OBLIGATION TO REFUND SWING LINE LOANS. Each
Revolving Credit Lender's obligation to make Revolving Credit Loans and to
purchase participating interests in accordance with subsections 4.3(b) and
(c) above shall be absolute and unconditional and shall not be affected by
any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender may have against the Swing Line Lender, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of any
Default or Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of the Company or any other Person; (iv) any breach
of this Agreement by the Company or any other Person; (v) any inability of
the Company to satisfy the conditions precedent to borrowing set forth in
this Agreement on the date upon which such Revolving Credit Loan is to be
made or participating interest is to be purchased or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. If any Revolving Credit Lender does not make available to the
Administrative Agent the amount required pursuant to subsections 4.3(b) and
(c) above, as the case may be, the Administrative Agent shall be entitled to
recover such amount on demand from such Revolving Credit Lender, together
with interest thereon for each day from the date of non-payment until such
amount is paid in full at the Federal Funds Effective Rate for the first two
Business Days and at ABR thereafter.
4.5 USE OF PROCEEDS OF SWING LINE LOANS. The proceeds of Swing
Line Loans hereunder shall be used by the Company for any purpose for which
the proceeds of Revolving Credit Loans may be used.
SECTION 5. AMOUNTS AND TERMS OF EUROPEAN SUB-FACILITY
5.1 EUROPEAN REVOLVING CREDIT FACILITY. (a) Subject to the terms
and conditions set forth herein:
36
(i) each Revolving Credit Lender hereby severally and not jointly
agrees to make revolving credit loans (each individually, a "SYNDICATED
EUROPEAN LOAN" and, collectively, the "SYNDICATED EUROPEAN LOANS") to the
Foreign Borrowers (including, without limitation, the Local Loan Borrowers)
in Dollars and Optional Currencies from time to time during the period from
the Closing Date to the Termination Date in accordance with the provisions
of subsection 5.2; and
(ii) each Local Lender hereby severally and not jointly agrees to
make revolving credit loans (each individually, a "LOCAL EUROPEAN LOAN"
and, collectively, the "LOCAL EUROPEAN LOANS"; together with the Syndicated
European Loans, the "EUROPEAN REVOLVING LOANS") to its respective Local
Loan Borrower in Dollars and Optional Currencies from time to time during
the period from the Closing Date to the Termination Date in accordance with
the provisions of subsection 5.3;
PROVIDED that, after giving effect to the making of such European Revolving
Loans and the simultaneous use of proceeds thereof, (w) each Revolving Credit
Lender's Aggregate Outstanding Extensions of Credit shall not exceed its
Revolving Credit Commitment then in effect, (x) the Aggregate Outstanding
Extensions of Credit of all Revolving Credit Lenders shall not exceed the
Aggregate Revolving Credit Commitment then in effect, (y) the aggregate
principal amount of European Revolving Loans denominated in Optional
Currencies and L/C Obligations denominated in Optional Currencies made to the
Foreign Borrowers shall not exceed at any time the Multicurrency Sublimit in
effect at such time and (z) the aggregate outstanding amount of European
Revolving Loans made to such Foreign Borrower shall not exceed at any time
its Foreign Borrower Sublimit then in effect.
(b) Amounts borrowed pursuant to this subsection 5.1 may be repaid
and, to but excluding the Termination Date, reborrowed.
5.2 PROCEDURE FOR BORROWING SYNDICATED EUROPEAN LOANS. The
Foreign Borrowers may borrow under the Aggregate Revolving Credit Commitment
pursuant to subsection 5.1 during the Commitment Period on any Business Day,
PROVIDED that the relevant Foreign Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to 11:00 A.M., London, England time, three Business Days prior to
the requested Borrowing Date), specifying (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) whether the borrowing is to be made in
Dollars or in an Optional Currency (and, if applicable, specifying the
relevant Optional Currency) and (iv) the length of the initial Interest
Period therefor. Each borrowing of Syndicated European Loans that is
denominated in Dollars shall be in an aggregate minimum amount of $2,000,000
or a whole multiple of $1,000,000 in excess of that amount and each such
borrowing that is denominated in an Optional Currency shall be in an integral
multiple of 100,000 units in such Optional Currency and equal to or greater
than the Local Equivalent of $2,000,000. Upon receipt of any such notice
from the relevant Foreign Borrower, the Administrative Agent shall promptly
notify each Revolving Credit Lender thereof. Each Revolving Credit Lender
will make the amount of its Revolving Credit Commitment Percentage of each
borrowing available to the Administrative Agent for the account of such
Foreign Borrower prior to 11:00 A.M. (London, England time) on
37
the Borrowing Date requested by such Foreign Borrower in funds immediately
available to the Administrative Agent in the relevant currency. Such
borrowing will then be made available to the relevant Foreign Borrower by the
Administrative Agent crediting the account of such Foreign Borrower with the
Administrative Agent with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Credit Lenders and in like funds as
received by the Administrative Agent.
5.3 PROCEDURE FOR BORROWING LOCAL EUROPEAN LOANS. The Local Loan
Borrowers may borrow under the Aggregate Revolving Credit Commitment pursuant
to subsection 5.1 during the Commitment Period on any Business Day, PROVIDED
that the relevant Local Loan Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 11:00 A.M. (local time in the jurisdiction in which the relevant
Local European Loan is to be made) three Business Days prior to the requested
Borrowing Date), specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be made in Dollars or in an
Optional Currency (and, if applicable, specifying the relevant Optional
Currency) and (iv) the length of the initial Interest Period therefor. Each
borrowing of Local European Loans that is denominated in Dollars shall be in
an aggregate minimum amount of $100,000 or a whole multiple thereof and each
such borrowing that is denominated in an Optional Currency shall be in an
aggregate minimum amount equal to at least 50,000 units in such Optional
Currency or a whole multiple of 10,000 units in excess thereof (and equal to
or greater than the Local Equivalent of $100,000). Upon receipt of any such
notice from the relevant Local Loan Borrower, the Administrative Agent shall
promptly notify the relevant Local Lender thereof. The Local Lender will
make the amount of such borrowing available to the relevant Local Loan
Borrower at its local office in the jurisdiction of the Local Loan Borrower
prior to 11:00 A.M. (local time) on the Borrowing Date requested by such
Local Loan Borrower in funds immediately available to such Local Loan
Borrower in the relevant currency.
5.4 MATTERS RELATING TO LOCAL EUROPEAN LOANS. (a) Each Revolving
Credit Lender hereby unconditionally and irrevocably agrees to purchase (in
the currency in which the relevant Local European Loan is outstanding) from
time to time an undivided participating interest in its Revolving Credit
Commitment Percentage of such portion of the Local European Loans then
outstanding as the Administrative Agent may at any time request; PROVIDED
that:
(i) the Administrative Agent hereby agrees that, unless an Event of
Default has occurred and is continuing, it will not request any such
purchase of participating interests unless the Administrative Agent has
given to the relevant Borrower and the affected Lenders at least three
Business Days' prior notice thereof;
(ii) the Administrative Agent hereby agrees that it will request that
the Revolving Credit Lenders purchase such participating interest in the
Local European Loans made by any Local Lender promptly following receipt by
the Administrative Agent of a written certification from such Local Lender
that an Event of Default described in Section 12(a) has occurred and is
continuing with respect to the Local European Loans made by such Local
Lender and requesting that such request be made by the Administrative
Agent; and
38
(iii) in the event that any of the events specified in Section 12(f)
shall have occurred with respect to any Borrower who has Local European
Loans then outstanding, each Revolving Credit Lender shall be deemed to
have purchased, automatically and without request, such participating
interest in the Local European Loans made to such Borrower.
Any such request by the Administrative Agent shall be made in writing to each
Revolving Credit Lender and shall specify the relevant currency and the
amount thereof required from such Revolving Credit Lender in order to effect
the purchase by such Revolving Credit Lender of a participating interest in
the amount equal to its Revolving Credit Commitment Percentage TIMES the
aggregate then outstanding principal amount of the relevant Local European
Loans (together with accrued interest thereon and other amounts owing in
connection therewith). Promptly upon receipt of such request, each Revolving
Credit Lender shall deliver to the Administrative Agent (in immediately
available funds and in the requested currency) the amount so specified by the
Administrative Agent. The Administrative Agent shall promptly deliver to the
relevant Local Lender all amounts actually received by the Administrative
Agent in like funds as received. Promptly following receipt thereof, such
Local Lender will deliver to each Revolving Credit Lender (through the
Administrative Agent) a certificate evidencing the participating interest in
the Local European Loans purchased by such Revolving Credit Lender. From and
after such purchase, all amounts from time to time accruing, and all amounts
from time to time payable, on account of such Local European Loans
(including, without limitation, any interest and other amounts which were
accrued but unpaid on the date of such purchase) shall (other than with
respect to the portion of the Applicable Margin which, pursuant to subsection
7.8(d), is expressly stated to be paid for the account of the Local Lender)
be distributed by such Local Lender to the Administrative Agent, for the
accounts of the Revolving Credit Lenders, on account of such participating
interests. The failure of any Revolving Credit Lender to deposit the amount
described above with the Administrative Agent on the date when due shall not
relieve any other Revolving Credit Lender of its obligations hereunder to
purchase its participating interest or prejudice any rights that the relevant
Local Lender may have against such Revolving Credit Lender as a result of any
such default by such Revolving Credit Lender. No Revolving Credit Lender
shall be responsible for any failure by any other Revolving Credit Lender to
perform its obligation to purchase such participating interest hereunder nor
shall the evolving Credit Commitment of any Revolving Credit Lender be
increased or decreased as a result of any such failure.
(b) Whenever, at any time after a Local Lender has received from
any Revolving Credit Lender such Revolving Credit Lender's participating
interest in a Local European Loan pursuant to subsection 5.4(a), such Local
Lender receives any payment on account thereof, such Local Lender will
distribute to the Administrative Agent, for the account of such Revolving
Credit Lender, such Revolving Credit Lender's participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Revolving Credit Lender's participating
interest was outstanding) in like funds as received; PROVIDED, HOWEVER, that
in the event that such payment received by such Local Lender is required to
be returned, such Revolving Credit Lender will return to such Local Lender
any portion thereof previously distributed by such Local Lender for the
account of such Revolving Credit Lender in like funds as such payment is
required to be returned by such Local Lender.
39
(c) Each Revolving Credit Lender's obligation to purchase
participating interests pursuant to clause (a) above shall be irrevocable,
shall not be subject to any qualification or exception whatsoever except
willful misconduct or gross negligence of the Local Lender as determined in a
final, non-appealable judgment by a court of competent jurisdiction, and
shall be honored in accordance with this Section 5 (irrespective of the
satisfaction of the applicable conditions described in Section 9) under all
circumstances, including, without limitation, (A) any lack of validity or
enforceability hereof or of any of the other Credit Documents, (B) the
existence of any claim, setoff, defense or other right that any Borrower may
have at any time against the Local Lender, the Administrative Agent, any
Lender or any other Person, whether in connection herewith, or with any Local
European Loan, the transactions contemplated herein or any unrelated
transactions, (C) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit Documents;
(D) the occurrence of any Event of Default or Default or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(d) Notwithstanding anything to the contrary contained herein, (i)
each Local European Loan borrowed by Salver shall be due and payable (but any
such payment need not be accompanied by a reduction of Revolving Credit
Commitments) on the date that is 17 months from the date of its borrowing
hereunder (or, if feasible, the last day of the Commitment Period) and (ii)
the Local Lender with respect to Salver shall be entitled to terminate its
commitment to serve as such Local Lender on the date which is 17 months after
the Closing Date and on each date which is 17 months thereafter by giving
written notice to the Company, Salver and the Administrative Agent not less
than 30 days prior to the effective date of such termination. In the event
that the Administrative Agent receives notice from such Local Lender of its
election to terminate its commitment to serve as such, then either (x) the
Administrative Agent may, prior to the effective date of such termination,
designate an alternate Local Lender to serve in such capacity (which
alternate Local Lender must be willing, in its sole discretion, to serve in
such capacity in accordance with the terms of this Agreement and must provide
to the Administrative Agent such alternate Local Lender's written agreement
to perform the obligations of the Local Lender with respect to Salver
hereunder and to be bound hereby) or (y) the right of Salver to receive Local
European Loans shall be terminated (subject to reinstatement in the event
that an alternate Local Lender is at any time thereafter appointed) and all
Local European Loans then outstanding to Salver shall be due and payable on
such date of termination. From and after the date upon which an alternate
Local Lender is appointed in accordance with the terms hereof, such alternate
Local Lender shall be deemed to be the Local Lender to Salver for all
purposes under this Agreement and the other Credit Documents.
5.5 USE OF PROCEEDS OF EUROPEAN REVOLVING LOANS. Proceeds of the
European Revolving Loans shall be used for any purpose for which Revolving
Credit Loans would be available to the Company; PROVIDED, that European
Revolving Loans made to Composites-UK and Hexcel-Spain shall not be used to
repay any loans (or refinancings thereof) used to acquire Composites-UK and
Hexcel-Spain, respectively.
5.6 TERMINATION OF FOREIGN BORROWER STATUS. The Company may
terminate its designation of a Foreign Borrower as a Borrower, by written notice
to the Administrative Agent,
40
which notice shall be executed by the Company and the relevant Foreign
Borrower. Once notice of such termination is received by the Administrative
Agent (and all amounts owing by such Foreign Borrower have been paid in
full), such Foreign Borrower shall immediately cease to be subject to the
terms of this Agreement (other than any indemnities and similar obligations
of such Foreign Borrower which expressly survive the termination of this
Agreement).
5.7 RESIGNATION OF LOCAL LENDER. (a) In the event that the
Revolving Credit Commitment of a Local Lender shall at any time terminate
(otherwise than on termination of the Aggregate Revolving Credit Commitment)
or a Local Lender shall assign all of its Revolving Credit Commitment in
accordance with the provisions of subsection 14.7(c) or a Local Lender shall
otherwise so elect, such Local Lender shall resign as "Local Lender" by
giving written notice of its resignation to the Company, the relevant Foreign
Borrower and the Administrative Agent, with such resignation becoming
effective on the date which is the earlier of (i) the date upon which a
Revolving Credit Lender reasonably acceptable to the Administrative Agent and
the Company is designated as a substitute Local Lender in accordance with the
provisions of subsection 5.7(b) and (ii) such other date upon which such
Local Lender, the Company and the relevant Foreign Borrower otherwise agree;
PROVIDED that such effective date shall in no event be later than the date
which is 60 days following the date upon which such written notice is
delivered to the Company. Any Local European Loans made by such Local Lender
which are outstanding on such termination date shall be due and payable on
such termination date.
(b) In the event that any Local Lender shall cease to serve as
such pursuant to subsection 5.7(a), the Company may designate another
Revolving Credit Lender reasonably acceptable to the Administrative Agent to
serve as "Local Lender" with respect to the relevant Foreign Borrower;
PROVIDED that no Revolving Credit Lender shall be so designated without its
agreement (in its sole discretion) to serve as the "Local Lender" with
respect to such Foreign Borrower hereunder. Upon any such designation and
the receipt by the Administrative Agent of a Local Lender Joinder Agreement,
duly executed and delivered by such designated Local Lender, such Revolving
Credit Lender shall be deemed to be the "Local Lender" with respect to such
Foreign Borrower for all purposes under this Agreement and the other Credit
Documents.
(c) During any period when no substitute Local Lender has been
duly appointed in accordance with the terms of subsection 5.7(b), the right
of the relevant Foreign Borrower to borrow Local European Loans shall be
suspended.
5.8 REPORTING BY LOCAL LENDERS. Within five Business Days
following the last day of each March, June, September and December, each
Local Lender shall deliver to the Administrative Agent a statement showing
the average daily principal amount of Local European Loans in each currency
during the calendar quarter most recently ended and the principal amount of
Local European Loans in each currency which was outstanding on the last day
of such quarter. Promptly following receipt thereof, the Administrative
Agent shall provide to each Revolving Credit Lender a report containing such
information.
SECTION 6. AMOUNTS AND TERMS OF EUROPEAN OVERDRAFT
FACILITY
41
6.1 EUROPEAN OVERDRAFT FACILITY. Subject to the terms and
conditions set forth herein, the European Overdraft Lender shall make loans
(the "EUROPEAN OVERDRAFT LOANS") to the Foreign Borrowers from time to time
during the period from the day immediately following the Closing Date to the
Termination Date, up to an aggregate principal amount at any time outstanding
which shall not exceed the European Overdraft Commitment then in effect;
PROVIDED that (x) except to the extent that the European Overdraft Lender
shall otherwise agree, Composites-Austria shall not, in the aggregate, have
the right to borrow more than $250,000 (or the Local Equivalent thereof) at
any one time under the European Overdraft Commitment and (y) except to the
extent that the European Overdraft Lender otherwise shall so agree, Salver
shall not have the right to borrow any amounts under the European Overdraft
Commitment. All European Overdraft Loans shall be payable on the Termination
Date with accrued interest thereon and shall be secured by the Collateral and
shall, except as expressly provided in this Section 6, otherwise be subject
to all the terms and conditions applicable to Syndicated European Loans,
except that each European Overdraft Loan shall be denominated in a single
Optional Currency and shall not be subject to a minimum borrowing requirement.
6.2 MAKING OF EUROPEAN OVERDRAFT LOANS. All European Overdraft
Loans shall be made available to the Foreign Borrowers at the office of the
European Overdraft Lender in London in immediately available funds on the
date of the proposed Borrowing applicable thereto. The European Overdraft
Lender shall not make any European Overdraft Loan in the period commencing on
the first Business Day after it has notice that one or more of the conditions
precedent contained in subsection 9.2 shall not on such date be satisfied,
and ending when such conditions are satisfied, and the European Overdraft
Lender shall not otherwise be required to determine that, or take notice
whether, the conditions precedent set forth in subsection 9.2 hereof have
been satisfied in connection with the making of any European Overdraft Loan.
6.3 REPAYMENT OF EUROPEAN OVERDRAFT LOANS. Each Foreign Borrower
shall repay the outstanding European Overdraft Loans owing by it to the
European Overdraft Lender at any time, but in no event later than the earlier
of (A) demand by the European Overdraft Lender and (B) the Termination Date.
6.4 USE OF PROCEEDS OF EUROPEAN OVERDRAFT LOANS. The proceeds of
the European Overdraft Loans may be used to provide for ongoing working
capital needs in the ordinary course of the business of the Foreign Borrowers
and their respective Subsidiaries and for any other lawful corporate purposes
not prohibited hereunder.
6.5 ADJUSTMENT OF EUROPEAN OVERDRAFT COMMITMENT. (a) Upon the
written request of the Company from time to time and with the consent of each
of the Administrative Agent and the European Overdraft Lender (in their
respective sole discretion) the European Overdraft Commitment of the European
Overdraft Lender may be increased to an amount not in excess of $25,000,000.
Any such increase in the European Overdraft Commitment shall be accompanied
by a reduction in the Revolving Credit Commitment of Citibank, N.A. to the
extent required by subsection 7.5(e); PROVIDED that, after giving effect to
such decrease in the Revolving Credit Commitment of Citibank, N.A., the sum
of the Revolving Credit Commitment of Citibank, N.A. and the European
Overdraft Commitment shall be unchanged (it being understood
42
that such reduction in the Revolving Credit Commitment of Citibank, N.A.
shall alter the Revolving Credit Commitment Percentage of each Revolving
Credit Lender).
(b) Upon the written request of the Company from time to time and
with the consent of each of the Administrative Agent and the European
Overdraft Lender (such consents not to be unreasonably withheld), the
European Overdraft Commitment of the European Overdraft Lender may be reduced
and the Revolving Credit Commitment of Citibank, N.A. may be increased by an
amount not to exceed the amount of such reduction; PROVIDED that, after
giving effect to such increase in the Revolving Credit Commitment of
Citibank, N.A., the sum of the Revolving Credit Commitment of Citibank, N.A.
and the European Overdraft Commitment shall be unchanged (it being understood
that such increase in the Revolving Credit Commitment of Citibank, N.A. shall
alter the Revolving Credit Commitment Percentage of each Revolving Credit
Lender).
SECTION 7. PROVISIONS RELATING TO THE EXTENSIONS OF CREDIT;
FEES AND PAYMENTS
7.1 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each Borrower
hereby unconditionally promises to pay to (i) with respect to Swing Line
Loans, the Swing Line Lender, (ii) with respect to Local European Loans in
which the purchase of participating interests have not been funded pursuant
to subsection 5.4(a), the relevant Local Lender, (iii) with respect to
European Overdraft Loans, the European Overdraft Lender and (iv) otherwise,
the Administrative Agent, the then unpaid principal amount of each Loan on
the Termination Date (or such earlier date on which such Loans become due and
payable hereunder). Each Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Loans from time to time owing by it from
the date hereof until payment in full thereof at the rates PER ANNUM, and on
the dates, set forth in subsection 7.8.
(b) Each Lender (including, without limitation, the European
Overdraft Lender) shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to subsection 14.7(d), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Loan made hereunder, the Type
thereof, each Interest Period applicable thereto and the Borrower with
respect thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from each Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent
hereunder from any Borrower and each applicable Lender's share thereof;
PROVIDED that the Administrative Agent shall have no obligation to record in
the Register any matters with respect to European Overdraft Loans.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 7.1(b) shall, to the extent permitted by
applicable law, be PRIMA FACIE
43
evidence of the existence and amounts of the obligations of the Borrowers
therein recorded; PROVIDED, HOWEVER, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of each Borrower
to repay (with applicable interest) the Loans made to such Borrower by such
Lender in accordance with the terms of this Agreement.
(e) Each relevant Borrower agrees that, upon request of any Lender
through the Administrative Agent, such Borrower will execute and deliver to
such Lender (i) in the case of a Revolving Credit Lender, a promissory note
of such Borrower evidencing the Revolving Credit Loans of such Revolving
Credit Lender, substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (a "REVOLVING CREDIT NOTE") and
(ii) in the case of the Swing Line Lender, a promissory note of such Borrower
evidencing the Swing Line Loans, substantially in the form of Exhibit B with
appropriate insertions as to date and principal amount (a "SWING LINE NOTE").
No promissory notes shall be provided with respect to any European Revolving
Loans or the European Overdraft Facility.
7.2 FACILITY FEE. (a) The Borrowers shall pay to the
Administrative Agent, for the account of each Revolving Credit Lender, a
facility fee for each day during the period from and including the first day
of the Commitment Period to and including the Termination Date, computed at
the rate PER ANNUM equal to the Applicable Facility Fee Rate then in effect
on the average daily amount of the Revolving Credit Commitment of such
Revolving Credit Lender during the period for which payment is made. Such
facility fee shall be payable (A) quarterly in arrears on the last Business
Day of each March, June, September and December, commencing on June 30, 1998,
for the period ending on (and including) the last day of the immediately
preceding December, March, June or September, respectively, and (B) on the
Termination Date.
(b) The Borrowers shall pay to the European Overdraft Lender a
facility fee for each day during the period from and including the first day
of the Commitment Period to and including the Termination Date, computed at
the rate PER ANNUM equal to the Applicable Facility Fee Rate then in effect
on the average daily amount of the European Overdraft Commitment during the
period for which payment is made. Such facility fee shall be payable (A)
quarterly in arrears on the last Business Day of each March, June, September
and December, commencing on June 30, 1998, for the period ending on (and
including) the last day of the immediately preceding December, March, June or
September, respectively, and (B) on the Termination Date.
7.3 OPTIONAL PREPAYMENTS. (a) Each Borrower may at any time and
from time to time prepay the Loans made to it (other than (x) the Swing Line
Loans, as to which the provisions of subsection 7.3(b) shall apply and (y)
the European Overdraft Loans, as to which the provisions of subsection 6.3
shall apply), in whole or in part, without premium or penalty, upon at least
three Business Days' (or, in the case of prepayments of ABR Loans, same
day's) irrevocable notice to the Administrative Agent (which notice must be
received by the Administrative Agent prior to (x) in the case of Loans
denominated in Dollars, 11:00 A.M., New York City time, and (y) in the case
of Loans denominated in Optional Currencies, 11:00 A.M., London time, on the
date upon which such notice is due), specifying whether such prepayment is to
be applied to the Revolving Credit Loans or the other Loans hereunder and, in
any event, the date and amount of prepayment and whether the prepayment is of
Eurocurrency Loans, ABR
44
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each affected Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the
date specified therein, together with any amounts payable pursuant to
subsection 7.15 and, except in the case of prepayments of Revolving Credit
Loans which are ABR Loans, accrued interest to such date on the amount
prepaid. Partial prepayments shall be (i) in the case of Loans denominated
in Dollars, in an aggregate principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof, (ii) in the case of Syndicated
European Loans denominated in any Optional Currency, in an aggregate
principal amount equal to an integral multiple of 100,000 units of such
Optional Currency and equal to or greater than the Local Equivalent of
$2,000,000 and (iii) in the case of Local European Loans denominated in any
Optional Currency, in an aggregate principalamount equal to an integral
multiple of 50,000 units of such Optional Currency and equal to or greater
than the Local Equivalent of $100,000.
(b) The Company may at any time and from time to time prepay, in
whole or in part and without premium or penalty, any Swing Line Loans then
owing by it on any Business Day; PROVIDED that the Company has given
irrevocable notice to the Administrative Agent not later than 1:00 P.M., New
York City time, on the date of such prepayment.
7.4 OPTIONAL TERMINATION OR REDUCTION OF AGGREGATE REVOLVING
CREDIT COMMITMENT. The Company shall have the right, upon not less than
three Business Days' notice to the Administrative Agent, to terminate the
Aggregate Revolving Credit Commitment or, from time to time, to reduce the
amount thereof; PROVIDED that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans, European Revolving Loans and Swing Line Loans made on
the effective date thereof, the aggregate principal amount of the Revolving
Credit Loans, European Revolving Loans and Swing Line Loans then outstanding,
when added to the then outstanding L/C Obligations, would exceed the
Aggregate Revolving Credit Commitment then in effect. Any such reduction
shall be in an amount equal to the Local Equivalent of $1,000,000 or a whole
multiple thereof and shall reduce permanently the Aggregate Revolving Credit
Commitment then in effect.
7.5 MANDATORY REDUCTION OF COMMITMENTS AND PREPAYMENTS. (a) The
Aggregate Revolving Credit Commitment shall terminate on the Termination Date.
(b) If the Aggregate Outstanding Extensions of Credit of all
Lenders shall at any time exceed the Aggregate Revolving Credit Commitment
then in effect (including, without limitation, as a result of any reduction
or termination of the Aggregate Revolving Credit Commitment pursuant to
subsection 7.4 or this subsection 7.5), the Borrowers shall immediately repay
the Aggregate Outstanding Extensions of Credit by the amount of such excess,
with such prepayment being applied, FIRST, to the then outstanding Swing Line
Loans, SECOND, to the then outstanding Revolving Credit Loans, THIRD, to the
then outstanding European Revolving Loans (in such order as the Company shall
elect) and, FOURTH, to cash collateralize the then outstanding L/C
Obligations.
(c) If the aggregate outstanding principal amount of European
Overdraft Loans shall at any time exceed the European Overdraft Commitments
then in effect, the Foreign
45
Borrowers shall, within five Business Days, repay the European Overdraft
Loans by the amount of such excess.
(d) If any Foreign Borrower shall at any time cease to be a
"Foreign Borrower" hereunder, all European Revolving Loans owing by such
Foreign Borrower shall be immediately due and payable (together with accrued
interest and any other amounts owing in respect thereof).
(e) If the European Overdraft Commitment shall at any time be
increased pursuant to subsection 6.5(a), the Revolving Credit Commitment of
Citibank, N.A. immediately shall be temporarily reduced (subject to
reinstatement in accordance with the provisions of subsection 6.5(b)) by 100%
of the amount of such increase and the Aggregate Outstanding Extensions of
Credit owing to Citibank, N.A. immediately shall be prepaid by the amount
necessary to cause such Aggregate Outstanding Extensions of Credit to equal
Citibank, N.A.'s Revolving Credit Commitment Percentage of (after giving
effect to such reduction of its Revolving Credit Commitment) of the Aggregate
Outstanding Extensions of Credit of all Revolving Credit Lenders.
(f) The Aggregate Revolving Credit Commitment shall be reduced by
the amount equal to 100% of any Net Proceeds (other than Reserved Proceeds)
derived by the Company and its Subsidiaries from any Net Proceeds Event;
PROVIDED, HOWEVER, that no such reduction shall be required:
(x) with respect to the first $20,000,000 of Net Proceeds derived
from any Net Proceeds Event received by the Company and its Subsidiaries
during any period of 365 consecutive days (other than any Net Proceeds
Event on account of the sale, transfer or other disposition of assets
described in clause (y) below); or
(y) with respect to any Net Proceeds received on account of the sale,
transfer or other disposition of any property listed on Schedule 7.5.
Unless the Company otherwise elects, the application of prepayments made
pursuant to this subsection 7.5(f) shall be made, FIRST, to ABR Loans and,
SECOND, to Eurocurrency Loans. Notwithstanding anything to the contrary
contained in this clause (f), any Reserved Proceeds which are not reinvested
in accordance with the definition of such term within 180 days following the
occurrence of the relevant Net Proceeds Event shall cease to be Reserved
Proceeds, and shall be applied to reduce the Aggregate Revolving Credit
Commitment in accordance with the terms of this clause (f), on the earlier to
occur of (x) the 181st day following such occurrence and (y) to the extent
that an Event of Default is then continuing, the date upon which the
Administrative Agent or the Majority Lenders shall request such application.
(g) Notwithstanding anything to the contrary contained herein, in
the event that a Borrower would incur costs pursuant to subsection 7.15 as a
result of any payment due as a result of any commitment reduction required to
be made pursuant to this subsection 7.5, such Borrower may deposit the amount
of such payment with the Administrative Agent, for the benefit of the Lenders
who would have received such payment, in a cash collateral account, until the
end of the applicable Interest Period at which time such payment shall be
made. Each Borrower hereby
46
grants to the Administrative Agent, for the benefit of such Lenders, a
security interest in all amounts in which such Borrower has any right, title
or interest which are from time to time on deposit in such cash collateral
account and expressly waives all rights (which rights such Borrower hereby
acknowledges and agrees are vested exclusively in the Administrative Agent)
to exercise dominion or control over any such amounts.
7.6 CONVERSION AND CONTINUATION OPTIONS. (a) Each Borrower may
elect from time to time to convert Eurocurrency Loans to ABR Loans by
delivering to the Administrative Agent an irrevocable Notice of Borrowing by
11:00 A.M., New York City time, at least one Business Day prior to the
requested date of conversion; PROVIDED that any such conversion of
Eurocurrency Loans may only be made on the last day of an Interest Period
with respect thereto. Each Borrower may elect from time to time to convert
ABR Loans to Eurocurrency Loans by delivering to the Administrative Agent an
irrevocable Notice of Borrowing by 11:00 A.M., New York City time, at least
three Business Days' prior to the requested conversion date. Any such Notice
of Borrowing with respect to a conversion to Eurocurrency Loans shall specify
the length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such Notice of Borrowing, the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding
Eurocurrency Loans and ABR Loans may be converted as provided herein,
PROVIDED that (i) no Loan may be converted into a Eurocurrency Loan when any
Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders have determined that such a conversion is not
appropriate and (ii) no Revolving Credit Loan may be converted into a
Eurocurrency Loan after the date that is one month prior to the Termination
Date. Notwithstanding anything to the contrary contained herein, Swing Line
Loans shall at all times be maintained as ABR Loans and shall not be
converted to Eurocurrency Loans hereunder.
(b) Any Eurocurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Borrower delivering to the Administrative Agent an irrevocable
Notice of Borrowing, in accordance with the applicable provisions of the term
"Interest Period" set forth in subsection 1.1, setting forth (among other
things) the length of the next Interest Period to be applicable to such
Loans, PROVIDED that (i) no Loan may be continued as a Eurocurrency Loan when
any Event of Default has occurred and is continuing and the Administrative
Agent has or the Required Lenders have determined that such a continuation is
not appropriate and (ii) no Revolving Credit Loan may be continued as a
Eurocurrency Loan after the date that is one month prior to the Termination
Date and PROVIDED, FURTHER, that if a Borrower shall fail to give such notice
or if such continuation is not permitted, such Loans shall (x) in the case of
any Loan to the Company, be automatically converted to ABR Loans on the last
day of such then expiring Interest Period and (y) in each other case, bear
interest at a rate equal to the rate determined by the Administrative Agent
(in its reasonable discretion and notified to the relevant Borrower) as
reflecting a reasonable cost of funds for the maintenance by the Lenders of
such Loan on an overnight basis PLUS (in the case of this clause (y)) the
Applicable Margin then in effect with respect to Eurocurrency Loans. Upon
receipt of any such Notice of Borrowing, the Administrative Agent shall
promptly notify each Lender thereof.
7.7 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF TRANCHES. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods
47
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the
Loans comprising each Eurocurrency Tranche shall be equal to (a) in the case
of Loans denominated in Optional Currencies, 100,000 units in such Optional
Currency and at least the Local Equivalent of $2,000,000 and (b) in the case
of all other Loans, $2,000,000 or a whole multiple of $1,000,000 in excess
thereof. In no event shall there be more than 10 Eurocurrency Tranches
outstanding to the Company at any time or more than 15 Eurocurrency Tranches
outstanding to the Foreign Borrowers (in the aggregate) at any time.
Notwithstanding the foregoing, the provisions of this Section 7.7 shall not
apply to European Overdraft Loans.
7.8 INTEREST RATES AND PAYMENT DATES. (a) Each Eurocurrency Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for
such day plus the Applicable Margin with respect thereto. Interest on each
Eurocurrency Loan shall be payable in the currency in which such Eurocurrency
Loan is denominated.
(b) Each ABR Loan (including, without limitation, each Swing Line
Loan) shall bear interest at a rate per annum equal to the ABR plus the
Applicable Margin with respect thereto.
(c) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any facility fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), the principal of the Loans and any such
overdue interest, facility fee or other amount shall bear interest at a rate
per annum which is (x) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of any such overdue interest, facility
fee or other amount (including, without limitation, fees and commissions on
Letters of Credit), the rate which would have been applicable thereto if such
amount were principal of a Loan denominated in the relevant currency (with
any such amount which is denominated in Dollars being treated as if it were
an ABR Loan) plus 2%, in each case from the date of such non-payment until
such overdue principal, interest, facility fee or other amount is paid in
full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date (PROVIDED that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand) and shall be payable
(w) in the case of interest on account of Swing Line Loans, to the Swing Line
Lender (for its own account), (x) in the case of interest on Local European
Loans, to the relevant Local Lender (for its own account), (y) in the case of
interest on European Overdraft Loans, to the European Overdraft Lender (for
its own account) and (z) otherwise, to the Administrative Agent (for the
ratable account of the Lenders holding the obligations on account of which
such interest was paid).
(e) Each Local Lender hereby agrees that, in consideration of the
agreement of the Revolving Credit Lenders to purchase participating interests
in the Local European Loans made by it, such Local Lender shall pay to the
Administrative Agent (for the ratable account of the Lenders) promptly upon
receipt by such Local Lender of any interest payment hereunder a
48
risk participation fee in the amount equal to (x) the Applicable Margin for
Eurocurrency Loans on the average daily principal amount of its Local
European Loans during the period for which payment is due MINUS (y) the
amount equal to 1/8 of 1% on such average daily principal amount (which
amount shall be retained by such Local Lender, for its own account);
PROVIDED, HOWEVER, that, in the event that the Revolving Credit Lenders have
funded the purchase of participating interests in such Local European Loans
pursuant to subsection 5.4(a), such Local Lender instead shall pay to the
Administrative Agent, for the account of each Revolving Credit Lender which
has so funded such purchase, the amount equal to such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the full amount (other
than the amount equal to 1/8 of 1% PER ANNUM on the average daily principal
amount on which such interest is being paid, which amount shall be retained
by the relevant Local Lender as an administrative fee) of the interest paid
to such Local Lender by the relevant Borrower. In addition to the foregoing
amounts, the relevant Borrower also shall pay to each Lender any amounts due
pursuant to subsection 7.15.
7.9 COMPUTATION OF INTEREST AND FEES. (a) Facility fees and,
whenever it is calculated on the basis of the Prime Rate, interest shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed; and, otherwise, interest shall be calculated on the
basis of a 360-day year for the actual days elapsed; PROVIDED that interest
on all Eurocurrency Loans denominated in Belgian francs or British pounds
sterling ("Euro sterling") shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the relevant
Borrower and the affected Lenders of each determination of a Eurocurrency
Rate. Any change in the interest rate on a Loan resulting from a change in
(i) the ABR or the Eurocurrency Reserve Requirements shall become effective
as of the opening of business on the day on which such change becomes
effective and (ii) the Leverage Ratio of the Company and its Subsidiaries
shall become effective as of the opening of business on the date upon which
the Administrative Agent receives the financial statements required to be
delivered pursuant to subsection 10.1 which evidence such change in the
Leverage Ratio. The Administrative Agent shall as soon as practicable notify
the relevant Borrower and the affected Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Lenders in the absence of manifest error.
The Administrative Agent shall, at the request of any Borrower, deliver to
such Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to subsection 7.9(a) which is
applicable to the Loans of such Borrower and, with respect to Loans made to
French Borrowers or in French Francs, the overall interest rate ("taux
effectif global") applicable to such Loans.
7.10 INABILITY TO DETERMINE INTEREST RATE. If prior to the
determination of the Eurocurrency Rate with respect to any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate for
such Interest Period;
49
(b) the Administrative Agent shall have received notice from any
Lender that deposits in Dollars or the applicable Optional Currency, as
applicable, in the principal amounts of the Eurocurrency Rate Loans to
which such Interest Period is to be applicable are not generally available
in the London interbank market for a period equal to such Interest Period;
or
(c) the Administrative Agent shall have received notice from the
Required Lenders that the Eurocurrency Rate to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Company and the affected Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurocurrency Loans requested to be made on the
first day of such Interest Period shall be made as ABR Loans, (y) any Loans
that were to have been converted on the first day of such Interest Period to
Eurocurrency Loans shall be converted to or continued as ABR Loans and (z)
any outstanding Eurocurrency Loans shall be converted, on the first day of
such Interest Period, to ABR Loans. Until such notice has been withdrawn by
the Administrative Agent, no further Eurocurrency Loans under the Aggregate
Revolving Credit Commitment shall be made or continued as such, nor shall the
relevant Borrower have the right to convert Loans to Eurocurrency Loans.
7.11 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing (other
than a borrowing of Swing Line Loans, Local European Loans or European
Overdraft Loans) by a Borrower from the Lenders hereunder, each payment by a
Borrower on account of any facility fee hereunder and any reduction of the
Revolving Credit Commitments of the Lenders shall be made PRO RATA according
to the respective relevant Revolving Credit Commitment Percentages of the
Lenders holding obligations in respect of which such amounts were paid. Each
payment (including each prepayment) by a Borrower on account of principal of
and (subject to the provisions of subsection 7.12) interest on the Loans
(other than the Swing Line Loans, the European Overdraft Loans or any Local
European Loans in which the purchase of participating interests has not been
funded pursuant to subsection 5.4(a)) shall be made PRO RATA according to the
respective outstanding principal amounts of such Loans then held by the
Lenders. Except as otherwise set forth herein, all payments (including
prepayments) to be made by any Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 1:00 P.M., New York City time (with
respect to amounts denominated in Dollars) or London time (with respect to
other amounts), on the due date thereof to the Administrative Agent, for the
account of the applicable Lenders, at the Administrative Agent's office
specified in subsection 14.3 (or at such other office as the Administrative
Agent may from time to time specify), in immediately available funds and in
the currency in which the underlying obligation is denominated (PROVIDED that
facility fees payable pursuant to subsection 7.2 shall be payable in
Dollars). The Administrative Agent shall distribute such payments to the
Lenders holding obligations on account of which such amounts were paid
promptly upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be
50
payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its relevant Revolving Credit Commitment
Percentage of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount
with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative
Agent submitted to any Lender with respect to any amounts owing under this
subsection 7.11 shall be conclusive in the absence of manifest error. If such
Lender's relevant Revolving Credit Commitment Percentage of such borrowing is
not made available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate PER ANNUM
applicable to ABR Loans hereunder, on demand, from the relevant Borrower.
(c) Notwithstanding anything to the contrary contained herein, in
the event that the Administrative Agent shall make any payment to a Lender on
account of amounts owing to such Lender by a Borrower hereunder and the
Administrative Agent either (i) shall not receive the corresponding amount
from such Borrower or (ii) shall be required to be return such amount to such
Borrower, such Lender shall (upon the request of the Administrative Agent)
promptly return to the Administrative Agent the amount of such payment.
(d) For the purposes of this Agreement, the Dollar Equivalent of a
European Revolving Loan which is denominated in an Optional Currency or any
L/C Obligations denominated in an Optional Currency shall be determined by
the Administrative Agent upon receipt from any Borrower of the Notice of
Borrowing requesting a Loan or any application for a Letter of Credit, and
such Dollar Equivalent shall be recalculated on each date that it shall be
necessary to determine the unused portion of each Lender's Revolving Credit
Commitment or any or all of the Aggregate Outstanding Extensions of Credit
outstanding on such date (it being understood that such calculation or
recalculation may, under the circumstances described in the definition of the
term "Dollar Equivalent" in Section 1.1, be made based upon an exchange rate
in effect on the last Business Day of the most recently ended calendar
quarter).
7.12 ILLEGALITY. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurocurrency Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurocurrency Loans, continue
Eurocurrency Loans as such and convert ABR Loans to Eurocurrency Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurocurrency Loans, if any, shall be converted automatically to:
51
(i) in the case of Loans denominated in Dollars, ABR Loans; and
(ii) otherwise, a rate equal to the rate determined by the
Administrative Agent (or, in the case of Local European Loans, the relevant
Lender) in its reasonable discretion and notified to the relevant Borrower
as reflecting a reasonable cost of funds for the maintenance by the
relevant Lenders of such Loan on an overnight basis PLUS (in the case of
this clause (ii)) the Applicable Margin then in effect with respect to
Eurocurrency Loans;
in each case on the respective last days of the then current Interest Periods
with respect to such Loans or within such earlier period as required by law. If
any such conversion of a Eurocurrency Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the relevant
Borrower shall pay to the relevant Lenders such amounts, if any, as may be
required pursuant to subsection 7.15.
7.13 REQUIREMENTS OF LAW. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Application or any Eurocurrency Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by subsection 7.14 and changes in
the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurocurrency Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Company shall promptly pay (or cause to be
paid) to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the
52
rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved
but for such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by
an amount deemed by such Lender to be material, then from time to time, the
Company shall promptly pay (or cause to be paid) to such Lender such
additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Company (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection (accompanied by a statement as to the amount of such compensation and
a summary of the basis for such demand with detailed calculations) submitted by
such Lender to the Company (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The agreements in this subsection
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
(d) The Company shall be permitted to replace any Lender which (a)
requests reimbursement for amounts owing pursuant to this Section 7.13 with a
replacement financial institution; PROVIDED that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall not have taken action under Section 7.17 so
as to eliminate the continued need for payment of amounts owing pursuant to this
Section 7.13, (iv) the replacement financial institution shall purchase, at par,
all Loans and other amounts owing to such replaced Lender on or prior to the
date of replacement, (v) the Company shall be liable to such replaced Lender
under Section 7.15 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 14.7 (provided that the Company shall be obligated to pay the
registration and processing fee referred to therein), (viii) the Company shall
pay to the replaced Lender all additional amounts (if any) owing pursuant to
this Section 7.13.
7.14 TAXES. (a) All payments made by the Borrowers under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or
such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any Note). If
any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("NON-EXCLUDED TAXES")
53
are required to be withheld from any amounts payable to the Administrative
Agent or any Lender hereunder or under any Note, the amounts so payable to
the Administrative Agent or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent or such Lender (after payment
of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement,
PROVIDED, HOWEVER, that no Borrower shall be required to increase any such
amounts payable to any Lender that is not organized under the laws of the
United States of America or a state thereof if such Lender fails to comply
with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by a Borrower, as promptly as possible
thereafter such Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by such Borrower showing
payment thereof. If such Borrower fails to pay any Non-Excluded Taxes when
due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, such Borrower shall indemnify the Administrative Agent and the
Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Company and the Administrative Agent (A)
two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be, and
(B) an Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Company and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Company or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Company and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 14.7 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to
54
this subsection, provided that in the case of a Participant such Participant
shall furnish all such required forms and statements to the Lender from which
the related participation shall have been purchased.
(c) Each of the Lenders and the Administrative Agent agrees, within a
reasonable time after receiving a written request from the Company, to provide
the Company and the Administrative Agent with such certificates as are
reasonably required and take such other actions as are reasonably necessary to
claim such exemptions as such Lender, the Administrative Agent or Affiliate may
be entitled to claim in respect of all or a portion of any Non-Excluded Taxes
that are otherwise required to be paid or deducted or withheld pursuant to this
subsection 7.14 in respect of any payments under this Agreement or under the
Notes.
(d) To the extent that the undertaking to indemnify and reimburse the
Administrative Agent and the Lenders set forth in this subsection may be invalid
and/or unenforceable because it is violative of any law or public policy, such
Borrower shall contribute the maximum portion that it is permitted to pay under
applicable law to the payment of the Non-Excluded Taxes imposed on the
Administrative Agent and the Lenders.
(e) If a Lender or the Administrative Agent shall become aware that
it is entitled to receive a refund (including interest and penalties, if any) in
respect of Non-Excluded Taxes as to which it has been indemnified by a Borrower
pursuant to this subsection 7.14, it shall promptly notify in writing such
Borrower of the availability of such refund (including interest and penalties,
if any) and shall, within 30 days after receipt of a request by such Borrower,
apply for such refund at such Borrower's expense; PROVIDED that neither the
Lender nor the Administrative Agent shall have any liability to any Borrower for
any failure to provide such notice if such right to receive such refund could
reasonably be attributed to factors unrelated to the transactions under this
Agreement or if such failure results from a good faith error on the part of such
Lender or the Administrative Agent.
(f) Each Lender confirms to the Administrative Agent (on the date
hereof, or, in the case of a Lender which becomes a party hereto by assignment
or transfer, on the date on which the relevant transfer or assignment become
effective) that either:
(i) it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to its participation in the relevant Loans and
interest thereon; or
(ii) it is a bank as defined for the purposes of Section 349 of the
Income & Corporation Taxes Act 1988 of the United Kingdom and is
beneficially entitled to its participation in the relevant Loans and the
interest thereon,
and each Lender in favor of the Agent agrees to notify the Agent if there is any
change in its position from that set out above.
7.15 INDEMNITY. Each Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by such Borrower in making a borrowing
of, conversion into or
55
continuation of Eurocurrency Loans after such Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by such Borrower in making any prepayment after such Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
(c) the making of a prepayment of Eurocurrency Loans on a day which is not
the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not
so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day
of such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined
by such Lender) which would have accrued to such Lender on such amount by
placing such amount on deposit for a comparable period with leading banks in
the interbank eurocurrency market. Any Lender requesting indemnification
pursuant to this subsection 7.15 shall deliver to the applicable Borrower,
concurrently with such demand, a written statement in reasonable detail as to
such losses and expenses, and such statement shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
7.16 CERTAIN FEES. The Company agrees to pay to the Administrative
Agent and to the Collateral Agent, for their own accounts, the non-refundable
fees previously agreed to with the Administrative Agent and the Collateral Agent
in the manner and on the dates so previously agreed.
7.17 CHANGE OF LENDING OFFICE. (a) Each Lender agrees that if it
makes any demand for payment under subsection 7.12 or 7.14(a), or if any
adoption or change of the type described in subsection 7.13 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate
a different lending office if the making of such a designation would reduce or
obviate the need for a Borrower to make payments under subsection 7.12 or
7.14(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 7.13.
(b) Notwithstanding anything to the contrary contained herein, no
Lender shall be entitled to receive any amount under subsections 7.12, 7.13 or
7.14(a) as a result of the transfer of any Eurocurrency Loan to a lending office
which is greater than such Lender would have been entitled to receive
immediately prior thereto, unless (i) the transfer occurred at a time when
circumstances giving rise to the claim for such greater amount did not exist and
(ii) such claim would have arisen even if such transfer had not occurred.
7.18 OVERALL INTEREST RATE FOR FRENCH LAW. Given the variable rates
of interest applicable to the Loans, the overall interest rate ("taux effectif
global"), as governed by the French Usury Law of December 28, 1966 and the
Decree of September 4, 1985, cannot be calculated at the time of execution of
this Agreement.
56
7.19 DESIGNATION OF ADDITIONAL BORROWERS. (a) The Company may from
time to time request that any one or more Wholly-owned Subsidiaries of the
Company be designated as a "Foreign Borrower" hereunder (each such additional
Foreign Borrower, an "ADDITIONAL BORROWER") by providing written notice to the
Administrative Agent specifying (i) the identity of such Foreign Subsidiary,
(ii) the jurisdiction of its incorporation, (iii) the Optional Currency (if any)
in which Loans to such Foreign Subsidiary shall be denominated and (iv) whether
such Foreign Subsidiary is to be a Local Loan Borrower and, if so, the Revolving
Credit Lender (or affiliate thereof) which is to serve as the Local Lender with
respect thereto (which Local Lender shall have agreed, in its sole discretion,
to serve in such capacity). The Administrative Agent shall promptly notify each
Revolving Credit Lender of such request. Within five Business Days following
the receipt of such notice, each Revolving Credit Lender shall notify the
Administrative Agent in writing whether such designation is acceptable to such
Revolving Credit Lender (in its sole discretion) and the Administrative Agent
promptly shall notify the Company thereof.
(b) In the event that such designation is acceptable to the Revolving
Credit Lenders holding the majority of the Aggregate Revolving Credit
Commitment, the Company shall cause the requested Additional Borrower to deliver
to the Administrative Agent (i) an Additional Borrower Joinder Agreement, (ii) a
Local Lender Joinder Agreement, (iii) a first-priority, perfected security
interest in all of the issued and outstanding capital stock of each direct
Subsidiary of such requested Additional Borrower pursuant to a pledge agreement
which is in form and substance reasonably satisfactory to the Administrative
Agent (PROVIDED that such security interest shall secure the obligations only of
such requested Additional Borrower and not of the Company or any other Borrower)
and (iv) such other documents, instruments, agreements and legal opinions as the
Administrative Agent reasonably may request (including, in any event, an opinion
of local counsel in the relevant jurisdiction as to the applicable matters
covered by the opinions delivered on the Closing Date with respect to the
Foreign Borrowers).
(c) From and after the date upon which the Administrative Agent has
received the documents (all of which shall be in form and substance reasonably
satisfactory to the Administrative Agent) described in subsection 7.19(b), the
requested Additional Borrower shall be a Foreign Borrower for all purposes
hereunder and (if applicable) the Revolving Credit Lender designated to serve as
Local Lender in the relevant jurisdiction with respect to such Additional
Borrower shall be a Local Lender for all purposes hereunder.
7.20 EUROPEAN MONETARY UNION. (a) If, as a result of the
implementation of European monetary union, (i) any currency ceases to be lawful
currency of the nation issuing the same and is replaced by a European single
currency or (ii) any currency and a European single currency are at the same
time recognized by the central bank or comparable authority of the nation
issuing such currency as lawful currency of such nation and the Administrative
Agent or the Required Lenders (or, in the case of European Overdraft Loans, the
European Overdraft Lender) shall so request in a notice delivered to the
Company, then any amount payable hereunder by the Revolving Credit Lenders (or
the European Overdraft Lender, as the case may be) to any Borrower, or by any
Borrower to the Revolving Credit Lenders (or the European Overdraft Lender, as
the case may be), in such currency shall instead by payable in the European
single currency and the amount so payable shall be determined by translating the
amount payable
57
in such currency to such European single currency at the exchange rate
recognized by the European Central Bank for the purpose of implementing
European monetary union.
(b) The Company agrees, at the request of any Lender, to compensate
such Lender for any reasonable loss, cost, expense or reduction in return that
shall be incurred or sustained by such Lender (other than through such Lender's
gross negligence or willful misconduct) as a result of the implementation of
European monetary union, that would not have been incurred or sustained but for
the transactions provided for herein and that, to the extent that such loss,
cost, expense or reduction is of a type generally applicable to extensions of
credit similar to the extensions of credit hereunder, is generally being
requested from borrowers subject to similar provisions. A certificate of a
Lender setting forth (x) the amount or amounts necessary to compensate such
Lender (y) describing the nature of the loss or expense sustained or incurred by
such Lender as a consequence thereof and (z) setting forth a reasonably detailed
explanation of the calculation thereof shall be delivered to the Company and
shall be conclusive absent manifest error. The Company shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
(c) The Company agrees, at the request of the Required Lenders (or,
with respect to matters relating to the European Overdraft Loans, the European
Overdraft Lender), at the time of or at any time following the implementation of
European monetary union, to enter into an agreement amending this Agreement in
such manner as the Required Lenders (or the European Overdraft Lender, as the
case may be) reasonably shall request in order to reflect the implementation of
such monetary union to place the parties hereto in the position they would have
been in had such monetary union not been implemented.
SECTION 8. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make its Loans and other extensions of credit hereunder, the
Company hereby represents and warrants (and, to the extent that any such
representation and warranty concerns matters relating to any other Borrower or
any of its Subsidiaries, such Borrower hereby represents and warrants) to each
Lender and the Administrative Agent as follows:
8.1 FINANCIAL CONDITION. (a) The condensed, consolidated balance
sheet of the Company and its consolidated Subsidiaries as at December 31, 1996
and the related consolidated statements of income and of cash flows for the
fiscal year ended on such date, reported on by Deloitte & Touche LLP, copies of
which have heretofore been furnished to each Lender, are complete and correct
and present fairly the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended.
The unaudited condensed, consolidated balance sheet of the Company and its
consolidated Subsidiaries as at September 30, 1997 and the related unaudited
consolidated statements of income and of cash flows for the nine-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Company and its consolidated
Subsidiaries as at such
58
date, and the consolidated results of their operations and their consolidated
cash flows for the nine-month period then ended (subject to normal year-end
audit adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by
such accountants or Responsible Officer, as the case may be, and as disclosed
therein).
(b) Neither the Company nor any of its consolidated Subsidiaries had,
at the date of the most recent balance sheet referred to above, any material
Guarantee Obligation, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto.
(c) During the period from December 31, 1996 to and including the
date hereof, there has been no sale, transfer or other disposition by the
Company or any of its consolidated Subsidiaries of any material part of its
business or property and no purchase or other acquisition of any business or
property (including any capital stock of any other Person) material in relation
to the consolidated financial condition of the Company and its consolidated
Subsidiaries at December 31, 1996.
8.2 NO CHANGE. Since December 31, 1996, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
8.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Company
and its Subsidiaries (a) is duly organized, validly existing and (to the extent
applicable) in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing (or, with respect to Foreign
Subsidiaries, maintains the analogous status) under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except to the extent that the
failure to maintain such status could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
8.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The
Company and each other Credit Party has the corporate power and authority, and
the legal right, to make, deliver and perform the Credit Documents to which it
is a party and, in the case of each Borrower, to borrow hereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and any Notes or Applications and to authorize the
execution, delivery and performance of the Credit Documents to which it is a
party. Except to the extent described on Schedule 8.4, no consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which the Company and each other
Credit Party is a party. Subject to the requirements listed on Schedule 8.4,
this Agreement
59
has been, and each other Credit Document to which it is a party will be, duly
executed and delivered on behalf of the Company and each other Credit Party.
This Agreement constitutes, and each other Credit Document to which it is a
party when executed and delivered will constitute, a legal, valid and binding
obligation of the Company and each other Credit Party enforceable against the
Company and each other Credit Party, as the case may be, in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
8.5 NO LEGAL BAR. The execution, delivery and performance of each
Credit Document, the incurrence or issuance of and use of the proceeds of the
Loans and of drawings under the Letters of Credit and the transactions
contemplated by the Credit Documents (a) will not violate any material
Requirement of Law or any material Contractual Obligation applicable to or
binding upon the Company or any of its Subsidiaries or any of their respective
properties or assets, in any manner and (b) will not result in the creation or
imposition of any Lien on any properties or assets of the Company or any of its
Subsidiaries pursuant to any Requirement of Law applicable to it, as the case
may be, or any of its Contractual Obligations, except for the Liens arising
under the Security Documents.
8.6 NO MATERIAL LITIGATION. Except to the extent described in
Schedule 8.6, no litigation by, investigation by, or proceeding of or before any
arbitrator or any Governmental Authority is pending or, to the knowledge of the
Company, threatened by or against the Company or any of its Subsidiaries, or
against any of its or their respective properties or revenues, with respect to
any Credit Document, the Loans made hereunder, the use of proceeds thereof, or
any drawings under a Letter of Credit and the other transactions contemplated
hereby or which could reasonably be expected to have a Material Adverse Effect
and all applicable waiting periods have expired without any action being taken
or threatened by any Governmental Authority which would restrain, prevent or
otherwise impose material adverse conditions on the transactions contemplated
hereby or thereby or which would be reasonably likely to have a Material Adverse
Effect.
8.7 NO DEFAULT. None of the Company or any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
8.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by subsection 11.3.
8.9 INTELLECTUAL PROPERTY. The Company and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the
60
"INTELLECTUAL PROPERTY"). No material claim has been asserted and is pending
by any Person challenging or questioning the use of any such Intellectual
Property or the validity or effectiveness of any such Intellectual Property,
nor does the Company know of any valid basis for any such claim. The use of
such Intellectual Property by the Company and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
8.10 TAXES. Each of the Company and its Subsidiaries has filed or
caused to be filed all material tax returns which, to the knowledge of the
Company, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Company or its Subsidiaries, as the case may be); no tax Lien has
been filed; to the knowledge of the Company, no claim is being asserted, with
respect to any such tax, fee or other charge which would reasonably be likely to
have a Material Adverse Effect.
8.11 FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect. If requested by any Lender or the Administrative Agent,
the Company will furnish to the Administrative Agent and each Lender a statement
to the foregoing effect in conformity with the requirements of FR Form G-1 or FR
Form U-1 referred to in said Regulation G or Regulation U, as the case may be.
8.12 EMPLOYEE BENEFITS. (a) Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not, as
of the last annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by more than $1,000,000. Neither the Company nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Company nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
(b) Each Foreign Employee Benefit 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 Foreign Employee
Benefit Plan. The aggregate of the liabilities to
61
provide all of the accrued benefits under any Foreign Pension Plan does not
exceed the current fair market value of the assets held in the trust or other
funding vehicle for such Foreign Employee Benefit Plan by an amount in excess
of $5,000,000. With respect to any Foreign Employee Benefit Plan maintained
by a Borrower, any of its Subsidiaries or any Commonly Controlled Entity
(other than a Foreign Pension Plan), reasonable reserves have been
established in accordance with prudent business practice or where required by
ordinary accounting practices in the jurisdiction in which such Foreign
Employee Benefit Plan is maintained. The aggregate unfunded liabilities,
after giving effect to any reserves for such liabilities, with respect to
such Foreign Employee Benefit Plans are not material. There are no actions,
suits or claims (other than routine claims for benefits) pending or, to the
knowledge of such Borrower, threatened against such Borrower, any of its
Subsidiaries or any Commonly Controlled Entity with respect to any Foreign
Employee Benefit Plan that would subject such Borrower, any of its
Subsidiaries or an Commonly Controlled Entity to a liability in excess of
$5,000,000.
8.13 INVESTMENT COMPANY ACT; OTHER REGULATIONS. No Borrower is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No
Borrower is subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
8.14 SUBSIDIARIES. On the Closing Date, the Subsidiaries of the
Company, their jurisdiction of incorporation and the percentage of the Capital
Stock thereof which is owned (directly or indirectly) by the Company shall be as
set forth on Schedule 8.14.
8.15 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 8.15:
(a) none of the Company, any of its Subsidiaries or any of their
respective operations or present or past Property are subject to any
investigation by, or any judicial or administrative proceeding, order,
judgment, settlement, decree or other agreement alleging or addressing (i)
a material violation of any Environmental, Health or Safety Requirement of
Law; (ii) any Remedial Action; or (iii) any material claims or Liabilities
and Costs arising from the Release or threatened Release of a Contaminant
into the environment, nor has the Company or any of its Subsidiaries
received any notice of the foregoing, except, in each case, for any matter
that, individually or in the aggregate is not reasonably likely to have a
Material Adverse Effect;
(b) none of the Company or any of its Subsidiaries is or has been the
owner or operator of any Property that has any of the following that would
reasonably be likely to have a Material Adverse Effect:
(i) any past or present on-site generation,
treatment, recycling, storage or disposal of any hazardous
waste, as that term is defined under 40 C.F.R. Part 261 or any
state or local equivalent;
(ii) any past or present landfill, waste-pile,
underground storage tank or surface impoundment;
62
(iii) any asbestos-containing material or any Contaminant;
(iv) any polychlorinated biphenyls (PCBs) used in
hydraulic oils, electrical transformers or other equipment;
(c) no Environmental Lien has attached to any Property of the
Company or any of its Subsidiaries that would reasonably be likely to
have a Material Adverse Effect;
(d) there have been no Releases of any Contaminants into the
environment in reportable quantities by the Company or any of its
Subsidiaries or any other Person that would reasonably be likely to have a
Material Adverse Effect;
(e) neither the Company nor any of its Subsidiaries has any
contingent liability in connection with any Release or threatened Release
of any Contaminants into the environment that would reasonably be likely to
have a Material Adverse Effect;
(f) neither the Company nor any of its Subsidiaries has disposed of
or sent or directly arranged for the transport of any waste or Contaminant
at or to any site listed or proposed for listing on the National Priorities
List ("NPL") pursuant to CERCLA or on the Comprehensive Environmental
Response Compensation Liability Information System List ("CERCLIS"), or any
similar state list, or any other location the effect of which would
reasonably be likely to have a Material Adverse Effect;
(g) no present or past Property of the Company or any of its
Subsidiaries is listed or proposed for listing on the NPL pursuant to
CERCLA or on the CERCLIS or any similar state list of sites requiring
Remedial Action, and the Company and its Subsidiaries are unaware of any
conditions on such Property that would qualify such Property for inclusion
on any such list, except, in either case, where such listing would not
reasonably be likely to have a Material Adverse Effect;
(h) neither the Company nor any of its Subsidiaries is subject to any
Environmental Property Transfer Act as a result of the transactions
contemplated by the Credit Documents or, to the extent such acts are
applicable to any such property, the Company or the relevant Subsidiary has
fully complied with the requirements of such acts, except where the failure
to comply would not reasonably be likely to have a Material Adverse Effect;
(i) neither the Company nor any of its Subsidiaries has assumed,
either contractually or by operation of law, any liabilities or potential
liabilities under any Environmental, Health or Safety Requirements of Law
except where (i) such assumption would not reasonably be likely to have a
Material Adverse Effect or (ii) the Company has received a written
indemnity with respect to such liabilities or potential liabilities (as the
case may be) from a Person (other than the Company or any of its
Subsidiaries) who would reasonably be expected to pay in full all
reasonable claims in respect of such indemnity; and
63
(j) The Company and each of its Subsidiaries has obtained, and is in
compliance with, all permits, approvals, registrations, authorization
licenses, variances, facility security clearances and personnel security
clearances, and all permissions required from a Governmental Authority
required under any Environmental, Health or Safety Requirements of Law,
except where the failure to obtain or comply therewith would not, in the
aggregate, reasonably be likely to have a Material Adverse Effect.
8.16 COLLATERAL DOCUMENTS. (a) Upon execution and delivery thereof
by the parties thereto, each Security Document (other than the Foreign Pledge
Agreements) will be effective to create in favor of the Collateral Agent, for
the ratable benefit of the Lenders, a legal, valid and enforceable security
interest in the Collateral described therein and, when the Collateral Agent has
received the stock certificates evidencing the Capital Stock pledged thereunder
(together with the related stock power), the security interests granted pursuant
thereto shall constitute a perfected first lien on, and security interest in,
all right, title and interest of the pledgor party thereto in the Collateral
described therein.
(b) Upon execution and delivery thereof by the parties thereto, each
Foreign Pledge Agreement will be effective to create in favor of the Collateral
Agent, for the ratable benefit of the Lenders, a legal, valid and enforceable
security interest in not less than 65% of the Capital Stock of each Foreign
Subsidiary which is directly owned by the Company or a Domestic Subsidiary and,
when the actions (if any) specified in the legal opinion delivered in connection
with such Foreign Pledge Agreement have been duly taken, the security interests
granted pursuant thereto shall constitute a perfected first lien on, and
security interest in, all right, title and interest of the pledgor party thereto
in such Capital Stock.
8.17 ACCURACY AND COMPLETENESS OF INFORMATION. The factual
statements contained in the financial statements referred to in subsection
8.1(a) and (b), the Credit Documents (including the schedules thereto) and any
other certificates or documents furnished or to be furnished to the
Administrative Agent, the Collateral Agent or the Lenders from time to time in
connection with this Agreement, taken as a whole, do not and will not, to the
best knowledge of the Company and its Subsidiaries, as of the date when made,
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 misleading in
light of the circumstances in which the same were made, all except as otherwise
qualified herein or therein, such knowledge qualification being given only with
respect to factual statements made by Persons other than the Company or any of
its Subsidiaries.
8.18 PROJECTIONS. Each of the Company's business plans and all other
financial projections and related materials and documents delivered to the
Lenders pursuant hereto were prepared in good faith on the basis of the
assumptions accompanying them, and such projections and assumptions as of the
date of preparation thereof were, and as of the Closing Date are, reasonable in
light of the then current and foreseeable business conditions and prospects of
the Company and its Subsidiaries and represented management's opinion of the
Company's and its Subsidiaries' projected financial performance based on the
information available to the Company at the time so furnished, it being
understood that nothing contained in this subsection 8.18 shall
64
constitute a representation or warranty that such future financial performance
or results of operations will in fact be achieved.
8.19 SOLVENCY. Each Borrower is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be, Solvent.
8.20 GOVERNMENT CONTRACTS. (a) None of the Company or any of its
Subsidiaries or any of their respective Affiliates is party to any Contractual
Obligation or subject to any Requirement of Law as a result of any conflict of
interest by, between or among the Company, such Subsidiaries or such Affiliates
or otherwise that would result in the termination of any contract with any
Governmental Authority or that would impose any limitation on the ability of the
Company or such Subsidiary to perform any such contract, except where such
termination or limitation is not reasonably likely to have a Material Adverse
Effect, or to continue its business substantially as presently conducted and
proposed to be conducted.
(b) (i) None of the Company, any of its Subsidiaries or any of their
respective directors or executive officers is (or during the last three years
has been) under administrative, civil or criminal investigation or indictment by
any Governmental Authority, with respect to any alleged irregularity,
misstatement or omission arising under or relating to any contract with a
Governmental Authority; and (ii) during the last three years, none of the
Company or any of its Subsidiaries has conducted or initiated any internal
investigation or made a voluntary disclosure to the United States Government
with respect to any alleged irregularity, misstatement or omission arising under
or relating to a contract with any Governmental Authority, in each case except
(with respect to such matters occurring after the Closing Date) as disclosed in
writing to the Lenders.
(c) Except (with respect to such matters occurring after the Closing
Date) as disclosed in writing to the Lenders, none of the Company or any of its
Subsidiaries or any of their respective directors or executive officers is (or
during the last three years has been) suspended or debarred from doing business
with the United States Government or is (or during such period was) the subject
of a finding of nonresponsibility or ineligibility for United States Government
contracting.
SECTION 9. CONDITIONS PRECEDENT
9.1 CONDITIONS TO INITIAL LOANS. The agreement of each Lender to
make the initial Loans and other extensions of credit requested to be made by it
is subject to the satisfaction, immediately prior to or concurrently with the
making of such Loan or other extension of credit (and, in any event, on or prior
to March 31, 1998), of the following conditions precedent:
(a) CREDIT DOCUMENTS. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer of
each Borrower, (ii) the Company Pledge Agreement, executed and delivered by
a duly authorized officer of the Company, (iii) the Subsidiary Pledge
Agreement, executed and delivered by a duly authorized officer of each
Domestic Subsidiary party thereto, (iv) the Foreign Pledge
65
Agreements, each executed and delivered by a duly authorized officer of
each party thereto, (v) the Company Guaranty, executed and delivered by
a duly authorized officer of the Company, (vi) the Subsidiary Guaranty,
executed and delivered by a duly authorized officer of each Domestic
Subsidiary party thereto.
(b) RELATED AGREEMENTS. The Administrative Agent shall have received
true and correct copies, certified as to authenticity by the Company, of
such other documents or instruments as may be reasonably requested by the
Administrative Agent.
(c) CORPORATE PROCEEDINGS OF THE COMPANY. The Administrative Agent
shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors of the
Company authorizing (i) the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party, (ii) the
borrowings contemplated hereunder and (iii) the granting by it of the Liens
created pursuant to the Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of the Company as of
the Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(d) COMPANY INCUMBENCY CERTIFICATE. The Administrative Agent shall
have received a Certificate of the Company, dated the Closing Date, as to
the incumbency and signature of the officers of the Company executing any
Credit Document satisfactory in form and substance to the Administrative
Agent.
(e) CORPORATE PROCEEDINGS OF CREDIT PARTIES. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors of each
Credit Party (other than the Company) which is a party to a Credit Document
authorizing (i) the execution, delivery and performance of the Credit
Documents to which it is a party and (ii) the granting by it of the Liens
created pursuant to the Security Documents (if any) to which it is a party,
certified by the Secretary or an Assistant Secretary (or another competent
officer or a director) of each such Subsidiary as of the Closing Date,
which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(f) CREDIT PARTY INCUMBENCY CERTIFICATES. The Administrative Agent
shall have received a certificate of each Credit Party (other than the
Company), dated the Closing Date, as to the incumbency and signature of the
officers of such Credit Party executing any Credit Document, satisfactory
in form and substance to the Administrative Agent.
(g) CORPORATE DOCUMENTS. The Administrative Agent shall
have received true and complete copies of the certificate of incorporation
and by-laws of the Company, certified as of the Closing Date as complete
and correct copies thereof by the Secretary or an Assistant Secretary of
the Company.
66
(h) FEES. Each of the Administrative Agent and the Collateral Agent
shall have received the fees to be received on the Closing Date referred to
in subsection 7.16.
(i) LEGAL OPINIONS. The Administrative Agent shall have received the
following executed legal opinions:
(i) the executed legal opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Company and the other Credit
Parties, substantially in the form of Exhibit E;
(ii) the executed legal opinions of counsel described on
Schedule 9.1, which opinions shall be in form and substance reasonably
acceptable to the Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require. The Company hereby directs each of its special
counsel, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, and each of the foreign
counsel to the Borrowers to prepare and deliver to the Administrative
Agent, the Collateral Agent and the Lenders, its opinions.
(j) PLEDGED STOCK; STOCK POWERS. The Administrative Agent shall have
received the certificates representing the shares pledged pursuant to each
of the Pledge Agreements (it being understood that the Capital Stock of
each of Composites-Austria, Hexcel-France and Salver is represented by
uncertificated securities and that the Capital Stock of Hexcel-Belgium
exists in registered form), together with (if legally possible) an undated
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof.
(k) ACTIONS TO PERFECT LIENS. The Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Liens created
by the Security Documents shall have been completed.
(l) NO CONSENTS. The Company and its Subsidiaries shall have
obtained all consents and approvals of Governmental Authorities and third
parties necessary or reasonably advisable in connection with the Loans and
other extensions of credit hereunder and the continuing operations of the
Company and its Subsidiaries; all such consents and approvals shall be in
full force and effect and all applicable appeal and waiting periods shall
have expired without any governmental or judicial action being taken or
threatened that has had or would be reasonably likely to have a Material
Adverse Effect.
(m) FEES. The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date, including,
to the extent invoiced a reasonable time prior to the Closing Date,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Company and its
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Subsidiaries hereunder or under any other Credit Document.
9.2 CONDITIONS TO EACH LOAN. The agreement of each Lender to make
any Loan or other extension of credit requested to be made by it on any
date (including, without limitation, any Loan or other extension of credit
to be made on the Closing Date) is subject to the satisfaction of the
following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Borrowers requesting such Loan or other extension of
credit in or pursuant to the Credit Documents shall be true and correct in
all material respects on and as of such date as if made on and as of such
date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans and
other extensions of credit requested to be made on such date.
(c) NO MATERIAL ADVERSE CHANGE. No event shall have occurred since
December 31, 1996, which has or is reasonably likely, in the opinion of the
Majority Lenders, to have a material adverse effect on the business,
condition (financial or otherwise), performance, properties or prospects of
the Borrower requesting such Loan or other extension of credit or the
Subsidiary Guarantors, taken as a whole, or of the Company and its
Subsidiaries, taken as a whole.
(d) ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by a Borrower hereunder shall constitute a representation and
warranty by such Borrower as of the date thereof that the conditions contained
in this subsection have been satisfied.
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SECTION 10. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Aggregate Revolving
Credit Commitment or the European Overdraft Commitment remains in effect or any
amount is owing to any Lender, the Collateral Agent or the Administrative Agent
hereunder or under any other Credit Document, it shall and (except in the case
of delivery of financial information, reports and notices) shall cause each of
its Subsidiaries to:
10.1 FINANCIAL STATEMENTS. Furnish to the Administrative Agent (who
shall promptly forward such documents to the Lenders):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Company after the Closing Date, a copy of
the consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Price Waterhouse or
other independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated balance sheets of the
Company and its consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of income and cash flows of
the Company and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth
in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
(c) not later than 30 days (or, in the case of the first fiscal month
following the Closing Date, 45 days) after the end of each fiscal month of
the Company (not already provided for in 10.1(a) or (b)), a copy of the
unaudited consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and cash flows of the Company and its
consolidated Subsidiaries for such month, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
10.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Administrative
Agent (who shall promptly forward such documents to the Lenders):
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(a) concurrently with the delivery of the financial statements
referred to in subsection 10.1(a), a letter from the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such letter;
(b) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and (b), a certificate of a Responsible
Officer, substantially in the form of Exhibit H;
(c) not later than thirty days after the end of each fiscal year of
the Company, a combined annual budget (in the format customarily utilized
by the Company for making financial projections) of (i) the Company and its
Domestic Subsidiaries, (ii) each Foreign Borrower and (iii) the Company and
its Subsidiaries for the succeeding fiscal year of the Company, displaying
on a quarterly basis the anticipated balance sheets as at the end of such
period and the related statements of income and cash flow of each of the
Persons described in clauses (i) through (iii) above;
(d) during the month of March in each calendar year, the Company
shall submit to the Administrative Agent and the Lenders a report prepared
by the appropriate officers of the Company summarizing the status of any
material environmental, health or safety non-compliance, hazard or
liability issues, and identifying the cash expenditures for Liabilities and
Costs arising out of or relating to such environmental health or safety
matters made by the Company and its Subsidiaries during the previous
calendar year; and
(e) within five days after the same are sent, copies of all financial
statements and reports which the Company sends to its stockholders or
debtholders generally, and within five days after the same are filed,
copies of all financial statements and reports which the Company may make
to, or file with, the Securities and Exchange Commission or any successor
or analogous Governmental Authority; and
(f) promptly, such additional financial and other information as any
Lender (acting through the Administrative Agent) may from time to time
reasonably request.
10.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Company or its Subsidiaries, as the case may be.
10.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. (a) Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except (i) as
otherwise permitted pursuant to subsection 11.5 and (ii) to the extent that the
failure to maintain or preserve such rights, privileges and franchises would not
reasonable be expected to
70
have a Material Adverse Effect.
(b) Comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
10.5 MAINTENANCE OF PROPERTY; INSURANCE. (a) Keep all property
useful and necessary in its business in good working order and condition;
PROVIDED that nothing contained in this subsection 10.5 shall be deemed to
prohibit the Company or any of its Subsidiaries from discontinuing the operation
or maintenance of any such property if such discontinuance (i) is, in the
reasonable judgment of the Company or such Subsidiary, necessary or appropriate
in the conduct of its business, (ii) is otherwise permitted by this Agreement
and (iii) would not be reasonably likely to have a Material Adverse Effect.
(b) Maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to each Lender, upon
written request, full information as to the insurance carried.
10.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and (subject to
applicable Requirements of Law concerning classified information and to the
rights of any tenants or licensees of such properties) permit representatives of
the Administrative Agent (or, after the occurrence and during the continuance of
any Event of Default under Section 12(a), any Lender) to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired (upon
reasonable written notice) and to discuss the business, operations, properties
and financial and other condition of the Company and its Subsidiaries with
officers and employees of the Company and its Subsidiaries and with its
independent certified public accountants. All reasonable costs and expenses
incurred by the Administrative Agent as a result of any inspections, audits and
examinations conducted pursuant to this subsection 10.6 shall be paid by the
Company.
10.7 NOTICES. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Company
or any of its Subsidiaries and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries
71
which (after giving effect to any applicable insurance coverage) would
be reasonably likely to have (in the Company's reasonable judgment) a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event within
30 days after the Company knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal from,
or the termination, Reorganization or Insolvency of, any Multiemployer Plan
or (ii) the institution of proceedings or the taking of any other action by
the PBGC or the Company or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan;
(e) any loss or threatened loss of the security clearances necessary
for the operation of the Company's "government contracts business" unless
disclosure thereof is prohibited by any Requirement of Law; and
(f) any development or event which has had or could reasonably be
expected to have (i) a Material Adverse Effect or (ii) a material adverse
effect on the value of, or the Collateral Agent's interest in, the
Collateral.
Each notice pursuant to this subsection 10.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
10.8 FURTHER ASSURANCES. Upon the request of the Administrative
Agent, promptly perform or cause to be performed any and all acts and execute or
cause to be executed any and all documents (including, without limitation,
financing statements and continuation statements) for filing under the
provisions of the Uniform Commercial Code or any other Requirement of Law which
are necessary or advisable to maintain in favor of the Collateral Agent, for the
benefit of the Lenders, Liens on the Collateral that are duly perfected in
accordance with all applicable Requirements of Law.
10.9 ADDITIONAL COLLATERAL. (a) With respect to any Person (other
than a Domestic Subsidiary formed for the sole purpose of holding the capital
stock of one or more of the Company's Foreign Subsidiaries) that, subsequent to
the Closing Date, becomes a Domestic Subsidiary which is a Material Subsidiary,
promptly upon the request of the Administrative Agent: (i) execute and deliver
to the Collateral Agent, for the benefit of the Lenders, a new pledge agreement
or such amendments to the existing Pledge Agreements as the Administrative Agent
shall deem necessary or advisable to grant to the Collateral Agent, for the
benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is
owned by the Company or any of its Subsidiaries, (ii) deliver to the Collateral
Agent the certificates representing such Capital Stock, together with undated
stock powers executed and delivered in blank by a duly authorized officer of the
Company or such Subsidiary, as the case may be, (iii) cause such new Subsidiary
(A) to become a party to the Subsidiary Guaranty, in each case pursuant to
documentation which is in form and substance satisfactory to the Administrative
Agent, and (B) to take all actions
72
necessary or advisable to cause the Lien created by the relevant Security
Documents to be duly perfected in accordance with all applicable Requirements
of Law and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described in
clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(b) With respect to any Person that, subsequent to the Closing Date,
becomes a Foreign Subsidiary and which has Capital Stock which is owned directly
by the Company or a Domestic Subsidiary which is a Material Subsidiary, promptly
upon the request of the Administrative Agent: (i) execute and deliver to the
Collateral Agent a new Foreign Pledge Agreement or such amendments to the
relevant Foreign Pledge Agreement as the Administrative Agent shall deem
necessary or advisable to grant to the Collateral Agent, for the benefit of the
Lenders, a Lien on the Capital Stock of such Subsidiary which is owned directly
by the Company or any of its Domestic Subsidiaries (PROVIDED that in no event
shall more than 65% of the Capital Stock of any such Subsidiary be required to
be so pledged if the pledge of more than such amount would be reasonably likely
to cause adverse tax consequences), (ii) to the extent reasonably deemed
advisable by the Administrative Agent, deliver to the Administrative Agent any
certificates representing such Capital Stock, together with undated stock powers
executed and delivered in blank by a duly authorized officer of the Company or
such Subsidiary, as the case may be, (iii) take or cause to be taken all such
other actions under the law of the jurisdiction of organization of such Foreign
Subsidiary as may be necessary or advisable to perfect such Lien on such Capital
Stock and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described in clauses
(i) through (iii) immediately preceding, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
Each Foreign Borrower hereby covenants and agrees that it shall not take any
action or fail to take any action which would constitute a Default or Event of
Default hereunder.
SECTION 11. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Aggregate Revolving
Credit Commitment or the European Overdraft Commitment remains in effect or any
amount is owing to any Lender, the Collateral Agent or the Administrative Agent
hereunder or under any other Credit Document, it shall not and (except in the
case of subsection 11.1) shall not permit any of its Subsidiaries to, directly
or indirectly:
11.1 FINANCIAL CONDITION COVENANTS.
(a) MINIMUM INTEREST COVERAGE RATIO. Permit the Interest Coverage
Ratio of the Company and its Subsidiaries on the last day of any fiscal quarter
of the Company to be less than 3.0 to 1.0.
(b) MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio of the Company
and its Subsidiaries on the last day of any fiscal quarter of the Company to be
greater than 4.75 to
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1.0.
(c) MINIMUM FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge
Coverage Ratio of the Company and its Subsidiaries on the last day of any fiscal
quarter of the Company to be less than 2.0 to 1.0.
11.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness (including, in any event, any preferred stock), except:
(a) Indebtedness of the Borrowers and their Subsidiaries under
this Agreement and the other Credit Documents, and other Indebtedness
of the Borrowers arising pursuant to Interest Rate Agreements,
currency hedging agreements and foreign exchange contracts to which
any Lender or Affiliate thereof is a party;
(b) Indebtedness listed on Schedule 11.2 and any refinancings,
refundings, renewals or extensions thereof; PROVIDED that (x) the aggregate
principal amount of replacement Indebtedness is not greater than the
principal amount of the Indebtedness being so replaced and (y) the terms of
such replacement Indebtedness are, in the aggregate, no less favorable to
the Company or such Subsidiary than the terms of the Indebtedness being so
replaced;
(c) Financing Leases and purchase money Indebtedness incurred by
the Company or any of its Subsidiaries to finance the acquisition of
tangible or intangible assets, and Indebtedness incurred by the
Company or any of its Subsidiaries to refinance such Financing Leases
and purchase money Indebtedness, in an aggregate principal amount not
to exceed $20,000,000 (or the Local Equivalent thereof) at any one
time outstanding;
(d) Indebtedness of the Company to any Subsidiary and of any
Subsidiary to the Company or any other Subsidiary;
(e) Indebtedness of a Person which becomes a Subsidiary after the
Closing Date; PROVIDED that (i) such Indebtedness existed at the time such
Person became a Subsidiary and was not created in anticipation thereof and
(ii) immediately after giving effect to the acquisition of such Person by
the Borrower no Default or Event of Default shall have occurred and be
continuing, and any refinancings, refundings, of renewals or extensions
thereof; PROVIDED that the amount of such Indebtedness is not increased at
the time of such refinancing, refunding, renewal or extension;
(f) Permitted Subordinated Indebtedness of the Company;
(g) Indebtedness incurred for the working capital purposes of the
Foreign Borrowers in an aggregate principal amount not to exceed
$125,000,000 (or the Local Equivalent thereof) at any one time outstanding;
PROVIDED that (x) the Aggregate Revolving Credit Commitment shall be
temporarily reduced by the amount of any
74
Indebtedness incurred pursuant to this subsection 11.2(g) and (y) during
such time as a Foreign Borrower has any Indebtedness under this
subsection 11.2(g), it shall have no outstanding European Revolving
Loans hereunder;
(h) foreign currency cap agreements, foreign currency rate swap
agreements and other similar agreements and arrangements entered into by
the Company or any Subsidiary to provide protection against fluctuations in
foreign currency rates; PROVIDED that such agreements are entered into by
the Company or any Subsidiary in the ordinary course of business;
(i) Indebtedness of the Company in respect of unsecured standby and
commercial letters of credit issued by a Lender in an aggregate face amount
(including, without limitation, any reimbursement obligations owing in
respect thereof) not to exceed $10,000,000 (or the Local Equivalent
thereof) at any one time outstanding;
(j) Indebtedness of the Company owing to employees of the Company and
its Subsidiaries on account of employee contributions to a non-qualified
benefit plan;
(k) Preferred stock of Subsidiaries of the Company and subordinated
Indebtedness of the Company or any of its Domestic Subsidiaries which is
upon terms reasonably satisfactory to the Majority Lenders; PROVIDED that
the PRO FORMA Leverage Ratio of the Company and its Subsidiaries (based
upon the EBITDA of the Company and its Subsidiaries for the period of four
consecutive fiscal quarters most recently ended and the Indebtedness of the
Company and its Subsidiaries on the date of, and after giving effect to,
the incurrence of such Indebtedness) is not more than 4.5 to 1.0; and
(l) additional Indebtedness in an aggregate principal amount not to
exceed $20,000,000 (or the Local Equivalent thereof) at any time
outstanding.
11.3 LIMITATION ON LIENS. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes, assessments and governmental charges not yet due
or which are being contested in good faith by appropriate proceedings,
PROVIDED that adequate reserves with respect thereto are maintained on the
books of the Company or its Subsidiaries, as the case may be, in conformity
with GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
75
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or any Subsidiary;
(f) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by the Company and its Subsidiaries
in the ordinary course of business;
(g) Liens in favor of banking institutions arising as a matter of law
and encumbering the deposits (including the right of setoff) held by such
banking institutions in the ordinary course of business and which are
within the general parameters customary in the banking industry;
(h) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods; and
(i) Liens created pursuant to the Security Documents;
(j) Liens listed on Schedule 11.3, securing Indebtedness permitted by
subsection 11.2(b), PROVIDED that no such Lien is spread to cover any
additional property after the Closing Date and that the amount of
Indebtedness secured thereby is not increased;
(k) purchase money Liens (including the interest of a lessor
under a Financing Lease) and Liens to which any Property is subject at
the time of the acquisition thereof securing Indebtedness permitted by
subsection 11.2(c) and limited in each case to the property purchased
or subject to such lease;
(l) any attachment or judgment Lien the existence of which does not
constitute an Event of Default under Section 12(h);
(m) Liens securing Indebtedness permitted by subsection 11.2(g);
PROVIDED that such Lien shall encumber only assets of the Foreign Borrower
who is the primary obligor in respect of such Indebtedness and shall
encumber only assets which are located outside of the United States of
America;
(n) Liens on the property or assets of a Person which becomes a
Subsidiary after the Closing Date securing Indebtedness permitted by
Section 11.2(e); PROVIDED that (i) such Liens existed at the time such
Person became a Subsidiary and were not created in anticipation thereof,
(ii) any such Lien is not spread to cover any property or assets of
76
such Person after the time such corporation becomes a Subsidiary, and
(iii) the amount of Indebtedness secured thereby is not increased; and
(o) additional Liens securing Indebtedness which, in the aggregate
with the amount guaranteed pursuant to any Guarantee Obligation created in
reliance upon the provisions of subsection 11.4(i), does not exceed 5% of
the consolidated net assets of the Company and its Subsidiaries; PROVIDED
that no Default or Event of Default has occurred and is continuing at the
time that such Indebtedness is incurred.
11.4 LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations listed on Schedule 11.4;
(b) Guarantee Obligations arising under the Credit Documents;
(c) Guarantee Obligations arising on account of obligations,
warranties and indemnities which (i) are not with respect to Indebtedness
of any Person, (ii) have been or are undertaken or made in the ordinary
course of business or in connection with the sale of assets permitted by
subsection 11.6(f) and (iii) are not for the benefit of or in favor of an
Affiliate of the Company or any of its Subsidiaries;
(d) Guarantee Obligations of (i) the Company in respect of
obligations of any of its Wholly-owned Subsidiaries and (ii) any Subsidiary
of the Company in respect of obligations of the Company or any wholly-owned
Subsidiary of the Company;
(e) Guarantee Obligations with respect to obligations, warranties and
indemnities (other than with respect to Indebtedness) arising (i) in the
ordinary course of business, (ii) under the Existing Transaction Documents
or the Transaction Documents or (iii) with respect to customary
representations, warranties and indemnities entered into in connection with
the sale or other disposition of assets;
(f) Guarantee Obligations in respect of payments made by the Company
to Dainippon Ink & Chemical, Inc. in an aggregate amount not to exceed at
any time $10,500,000;
(g) Guarantee Obligations in respect of Indebtedness of Subsidiaries
of the Company which was incurred in reliance upon the provisions of
subsection 11.2(g);
(h) Guarantee Obligations constituting Investments pursuant to
subsection 11.8(j); and
(i) additional Guarantee Obligations of the Company and its
Subsidiaries in respect of obligations which, in the aggregate with the
aggregate amount of Indebtedness secured by Liens incurred in reliance upon
the provisions of subsection 11.3(n), does not exceed 5% of the
consolidated net assets of the Company and its Subsidiaries; PROVIDED
77
that no Default or Event of Default has occurred and is continuing at
the time that such Guarantee Obligation is incurred.
11.5 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Company (other than a Borrower) may be
merged or consolidated with or into the Company (PROVIDED that the Company
shall be the continuing or surviving corporation) or with or into any one
or more wholly owned Subsidiaries of the Company (PROVIDED that the wholly
owned Subsidiary or Subsidiaries shall be the continuing or surviving
corporation); and
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to the Company or any other Wholly-owned Subsidiary of the
Company.
11.6 LIMITATION ON SALE OF ASSETS. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Company or any wholly owned Subsidiary, except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out property in
the ordinary course of business;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(d) assignments and licenses of intellectual property of the Company
and its Subsidiaries (i) to joint ventures, (ii) in the ordinary course of
business or (iii) pursuant to the Strategic Alliance Agreement;
(e) leases of owned real property and subleases of leased real
property, to the extent such leases and subleases have anticipated annual
rentals of less than $1,000,000 each; PROVIDED, HOWEVER, leases and
subleases of real property among the Company and its subsidiaries or among
such subsidiaries shall be permitted without regard to anticipated annual
rentals;
(f) the sale by the Company and its Subsidiaries of all or any part
of the property referred to on Schedule 7.5; PROVIDED, that (i) the
Administrative Agent shall have received the documentation evidencing such
sales, (ii) such sales shall not be made for
78
less than the fair market value of such Property and for consideration
other than at least 85% cash and (iii) the Net Proceeds arising from
such sales shall not be substantially less than the amount specified
with respect to such Property listed on Schedule 9.5;
(g) sales permitted by subsection 11.5 or 11.9; and
(h) additional sales of assets not in excess of $20,000,000 (or the
Local Equivalent thereof) in any fiscal year.
Any Collateral which is sold, transferred or otherwise conveyed pursuant to this
subsection 11.6 to a Person other than the Company and its Subsidiaries shall,
upon the consummation of such sale in accordance with the terms of this
Agreement and the other Credit Documents, be released from the Liens granted
pursuant to the Security Documents and each Lender hereby authorizes and
instructs each of the Administrative Agent and the Collateral Agent to take such
action as the Company reasonably may request to evidence such release.
11.7 LIMITATION ON RESTRICTED PAYMENTS. Declare or pay any dividend
(other than dividends payable solely in common stock of the Borrower) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Company or any
warrants or options to purchase any such Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Company or
any Subsidiary (such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions being
herein called "RESTRICTED PAYMENTS"), except that, during such time as no
Default or Event of Default has occurred and is continuing or would result
therefrom, the Company may make Restricted Payments with respect to (a) employee
or director stock options, stock incentive plans or restricted stock plans of
the Company, (b) the purchase from time to time by the Company of its common
stock (for not more than market price) with the proceeds of the exercise by
grantees under any equity-based incentive plan (c) other purchases from time to
time by the Company of its common stock not to exceed $10,000,000 in the
aggregate since the date hereof and (d) transactions otherwise permitted
pursuant to subsection 11.14.
11.8 LIMITATION ON INVESTMENTS. Make any Investment in any Person
after the Closing Date, except:
(a) Investments in cash and Cash Equivalents;
(b) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(c) Investments on account of (i) intercompany loans which are
permitted by subsection 11.2(d), (ii) the purchase of equity interests of,
and the making of capital
79
contributions to, Wholly-owned Subsidiaries and (iii) Permitted Belgian
Capital;
(d) cash contributions to Hexcel Foundation not to exceed $500,000 in
the aggregate in any fiscal year; PROVIDED, that the unused portion of such
amount may be used in the next succeeding year;
(e) Investments specifically contemplated by any Existing Transaction
Document;
(f) promissory notes and other Investments received as consideration
pursuant to transactions permitted by subsection 11.6(f);
(g) extensions of trade credit in the ordinary course of business;
(h) loans and advances to employees of the Company and its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business;
(i) Investments on account of the acquisition by the Company and its
Subsidiaries of all or substantially all of the capital stock or assets of
any Person (or business units thereof); PROVIDED that, after giving effect
to the consummation of such Investment, the Leverage Ratio of the Company
and its Subsidiaries (determined on a PRO FORMA basis, based upon the
EBITDA of the Company, its Subsidiaries and the acquired entity for the
period of four consecutive fiscal quarters most recently ended and the
Indebtedness of the Company, its Subsidiaries and the acquired entity after
giving effect to the consummation of such Investment) is not more than 4.5
to 1.0; and
(j) additional Investments by the Company and its Subsidiaries;
PROVIDED that, after giving effect to the consummation of such Investment,
(i) the aggregate amount of all Investments (with the amount of any
Guarantee Obligations being deemed to be the amount so guaranteed) made by
the Company and its Subsidiaries in reliance upon the provisions of this
subsection 11.8(j) does not exceed the greater of (A) $75,000,000 and (B)
the amount then equal to 15% of the consolidated tangible net assets of the
Company and its Subsidiaries and (ii) the Leverage Ratio of the Company and
its Subsidiaries (based upon the EBITDA of the Company and its Subsidiaries
for the period of four consecutive fiscal quarters most recently ended and
the Indebtedness of the Company and its Subsidiaries after giving effect to
the consummation of such Investment) is not more than 4.5 to 1.0.
11.9 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms no less favorable to the Company or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate; PROVIDED, HOWEVER, that
nothing contained herein shall be deemed to prohibit (i) employment or
compensation agreements or other arrangements with officers or directors of
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the Company or any of its Subsidiaries which have been approved by the Board
of Directors of the Company or any committee of the disinterested directors
of the Company, (ii) existing management agreements, (iii) stock options and
awards granted to employees and directors of the Company or any of its
Subsidiaries under existing Plans or other employee benefit Plans, and (iv)
any contract or transaction providing for indemnification of officers or
directors of the Company or any of its Subsidiaries from liability, or
providing or maintaining insurance or other arrangements on behalf of any
such officer or director against any liability asserted against such person
and incurred in or arising out of such capacity, (v) the transactions set
forth on Schedule 11.9 or permitted by subsection 11.5 and (vi) transactions
which are expressly contemplated by the Existing Transaction Documents.
11.10 LIMITATION ON SALES AND LEASEBACKS. Enter into any arrangement
with any Person providing for the leasing by the Company or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Company or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Company or such Subsidiary, other than any such
transactions relating to the sale and lease of equipment upon terms and subject
to conditions satisfactory to the Administrative Agent to the extent that the
aggregate fair market value of all equipment sold does not exceed $20,000,000
(or the Local Equivalent thereof).
11.11 LIMITATION ON CHANGES IN FISCAL YEAR OR ACCOUNTING TREATMENT.
(a) Permit the fiscal year of the Company to end on a day other than
December 31.
(b) Make any material change in accounting treatment and reporting
practices or tax reporting treatment, except as required by GAAP and disclosed
to the Lenders and the Administrative Agent.
11.12 LIMITATION ON NEGATIVE PLEDGE CLAUSES. Enter into with any
Person any agreement, other than (a) the Credit Documents and (b) any industrial
revenue bonds, purchase money mortgages or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed thereby), which prohibits or limits the ability of
the Company or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired.
11.13 LIMITATION ON LINES OF BUSINESS. Enter into any business,
either directly or through any Subsidiary, which would not reasonably be
considered to be related to (or an extension of) the businesses in which the
Company and its Subsidiaries are engaged on the date hereof.
11.14 LIMITATION ON MODIFICATION OF AGREEMENTS AND PAYMENTS ON
ACCOUNT OF DEBT. (a) Prepay, redeem, purchase, repurchase, defease or retire
any long-term Indebtedness, other than (i) the Indebtedness hereunder, (ii) any
intercompany Indebtedness permitted by subsection 11.1 if an Event of Default is
not existing and would not result from giving effect to such prepayment, (iii)
other scheduled payments in respect of Indebtedness, (iv) regularly scheduled
payments on the Permitted Subordinated Indebtedness, (v) payments of equity or
cash
81
made upon the conversion of any Permitted Subordinated Indebtedness into
equity in accordance with the relevant indenture governing such Indebtedness,
PROVIDED that (A) such payments are permitted to be made under the terms of
the Permitted Subordinated Indebtedness, (B) no Default or Event of Default
has occurred and is continuing and (C) payments of cash do not exceed
$10,000,0000 in the aggregate, and (vi) payments of Indebtedness made in
connection with (A) the Existing Transaction Documents or (B) as set forth on
Schedule 11.14; PROVIDED that nothing contained herein shall be deemed to
prohibit (x) the Company from converting into equity any intercompany
Indebtedness which is owing to it from any of its Subsidiaries, (y) any
Subsidiary of the Company from converting into equity any Indebtedness which
is owing to it from any other Subsidiary or (z) the conversion of the
Permitted Subordinated Indebtedness into common stock of the Company in a
manner not inconsistent with the terms thereof (and the payment of (i) cash
adjustments by the Company in lieu of issuing fractional shares of common
stock upon the conversion of the Subordinated Ciba Notes or the Subordinated
Debentures and (ii) accrued interest thereon).
(b) Amend, supplement or otherwise modify the terms of any Existing
Transaction Document, the Subordinated Debentures, the Subordinated Debenture
Indenture, the Subordinated Convertible Notes or the Subordinated Convertible
Notes Indenture in any material respect, other than amendments to any
non-material Existing Transaction Document in a manner which could not
reasonably be expected to be adverse to the Lenders.
(c) Amend, supplement or otherwise modify the terms of (i) its
articles/certificate of incorporation (or the equivalent organizational
documents), (ii) its by-laws (or the equivalent governing documents, if any), or
(iii) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of its Capital Stock, except
for any such amendments, supplements and other modifications which could not
reasonably be expected to adversely affect the rights or interests of the
Administrative Agent or the Lenders.
11.15 NO NEW RESTRICTIONS ON SUBSIDIARY DIVIDENDS. Agree to create
or otherwise permit to become effective any consensual encumbrance or
restriction of any kind on the ability of any Subsidiary to:
(a) pay, directly or indirectly, dividends or make any other
distributions in respect of its Capital Stock;
(b) make any other distribution or transfer of funds or assets to the
Company; or
(c) make loans or advances to or other Investments in, or pay any
Indebtedness or other obligation owing to, the Company;
except to the extent required by (x) any applicable Requirements of Law, (y) the
Credit Documents or the Subordinated Ciba Notes Indenture or (z) to the extent
permitted (including, without limitation, by waiver of applicable restrictions
contained therein) by the Subordinated Ciba Notes Indenture, any document or
agreement governing Indebtedness which is incurred in reliance upon the
provisions of subsection 11.2(g).
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Each Foreign Borrower hereby covenants and agrees that it shall not take any
action or fail to take any action which would constitute a Default or Event of
Default hereunder.
SECTION 12. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or any Borrower
shall fail to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Company or any other Credit Party herein or in any other Credit Document
or which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Credit Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made; or
(c) The Company or any other Credit Party shall default in the
observance or performance of any agreement contained in Section 11 or
any negative covenant contained in any of the other Credit Documents; or
(d) The Company or any other Credit Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Credit Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default (to the
extent that it is susceptible to remedy) shall continue unremedied for a
period of 30 days; or
(e) The Company or any of its Subsidiaries shall (i) default in
any payment of principal of or interest of any Indebtedness (other than
the Loans) or in the payment of any Guarantee Obligation, beyond the
period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; PROVIDED, HOWEVER, that
no Default or Event of Default shall exist under this paragraph unless
the aggregate amount of Indebtedness and/or Guarantee Obligations in
respect of which any default or other event or condition referred to in
this paragraph shall have occurred shall be equal to at least
$10,000,000 (or the Local Equivalent thereof); or
83
(f) (i) The Company or any of its Material Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial part of its
assets, or the Company or any of its Material Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Company or any of its Material Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Company or any of its Material Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the
Company or any of its Material Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Company or any of its Material Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Company or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, involve an aggregate amount in excess of $3,000,000;
or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a net
liability (after reduction for the amount of any applicable insurance
coverage) of $10,000,000 (or the Local Equivalent
84
thereof) or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof; or
(i) (i) Any of the Security Documents (or any material provision
of any thereof) shall cease, for any reason, to be in full force and
effect, or the Company or any other Credit Party which is a party to any
of the Security Documents shall so assert or (ii) the Lien created by
any of the Security Documents shall cease to be enforceable and of the
same effect and priority purported to be created thereby, except, in
each case, to the extent such cessation is (A) in accordance with the
terms of the Credit Documents or (B) a result of (x) the failure of the
Collateral Agent to maintain possession of the securities representing
the Collateral or (y) the gross negligence or willful misconduct of any
of the Administrative Agent, the Collateral Agent or the Lenders; or
(j) Any of the Guarantees (or any material provision of any
thereof) shall cease, for any reason, to be in full force and effect, or
the Company or any other Credit Party which is a party to any of the
Guarantees shall so assert; or
(k) Any Change of Control shall occur; or
(l) Any Foreign Borrower shall cease to be (or shall not be) a
Wholly-owned Subsidiary of the Company;
then, and in any such event, (A) if such event is a Bankruptcy Event with
respect to any Borrower, automatically each of the Aggregate Revolving Credit
Commitment and the European Overdraft Commitment shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event
of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by
notice to the Company declare the Aggregate Revolving Credit Commitment
and/or the European Overdraft Commitment to be terminated forthwith,
whereupon such Commitment(s) shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Company, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement (including, without limitation,
all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the relevant Borrower shall at such time
deposit in one or more cash collateral accounts opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of
such Letters of Credit. Each Borrower hereby grants to the Administrative
Agent, for the
85
benefit of the Issuing Lender and the L/C Participants, a security interest
in such cash collateral to secure all obligations of such Borrower under this
Agreement and the other Credit Documents. Any amounts held in such cash
collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit issued for the account
of such Borrower, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied
to repay other obligations of the Borrowers hereunder and under the Notes.
After all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrowers hereunder and under the Notes shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the relevant Borrower. Each Borrower shall execute and deliver to
the Administrative Agent, for the account of the relevant Issuing Lender and
the L/C Participants, such further documents and instruments as the
Administrative Agent may request to evidence the creation and perfection of
the within security interest in such cash collateral account.
Except as expressly provided above in this Section 12, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 13. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
13.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints (a) the Administrative Agent as the administrative agent of such
Lender under this Agreement and the other Credit Documents, (b) the
Documentation Agent as the documentation agent hereunder and under the other
Credit Documents, (c) the Collateral Agent as the collateral agent hereunder
and under the other Credit Documents and (d) the Syndication Agent as the
syndication agent hereunder and under the other Credit Documents. Each such
Lender hereby further irrevocably authorizes the Administrative Agent and the
Collateral Agent, in its respective capacity as such, to take such action on
its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent or the Collateral Agent (as
the case may be) by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto (including, without limitation, acting on behalf of and for the
account of each Lender in the creation, execution, perfection, delivery and
enforcement of the Foreign Pledge Agreements). Notwithstanding any
provision to the contrary elsewhere in this Agreement, neither the
Administrative Agent not the Collateral Agent shall have any duties or
responsibilities, except those expressly set forth with respect to it herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Credit Document or otherwise exist against
the Administrative Agent or the Collateral Agent. Each Lender hereby
acknowledges and agrees that Citibank, N.A., shall have no obligations or
liability hereunder in its capacity as syndication agent and that Credit
Suisse First Boston shall have no obligations or liability hereunder in its
capacity as documentation agent.
13.2 DELEGATION OF DUTIES. Each of the Administrative Agent and the
Collateral Agent may execute any of its duties under this Agreement and the
other Credit Documents by or
86
through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Neither the
Administrative Agent nor the Collateral Agent shall be responsible for the
negligence or misconduct of any agent or attorneys in-fact selected by it
with reasonable care.
13.3 EXCULPATORY PROVISIONS. None of the Administrative Agent,
the Collateral Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for
any action lawfully taken or omitted to be taken by it or such Person under
or in connection with this Agreement or any other Credit Document (except for
its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Borrower or any officer thereof
contained in this Agreement or any other Credit Document or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent or the Collateral Agent under or
in connection with, this Agreement or any other Credit Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or for any failure of any
Borrower to perform its obligations hereunder or thereunder. Neither the
Administrative Agent nor the Collateral Agent shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or
any other Credit Document, or to inspect the properties, books or records of
any Borrower.
13.4 RELIANCE BY ADMINISTRATIVE AGENT AND COLLATERAL AGENT. Each
of the Administrative Agent and the Collateral Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Administrative Agent or the
Collateral Agent (as the case may be). Each of the Administrative Agent and
the Collateral Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent or
the Collateral Agent (as the case may be). Each of the Administrative Agent
and the Collateral Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Credit Document unless it
shall first receive such advice or concurrence of the Majority Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. Each of the
Administrative Agent and the Collateral Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and
the other Credit Documents in accordance with a request of the Majority
Lenders (or such larger number of Lenders as may be explicitly required
hereunder), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
13.5 NOTICE OF DEFAULT. Neither the Administrative Agent nor the
Collateral Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of
87
Default hereunder unless it has received notice from the Collateral Agent, a
Lender or a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In
the event that the Collateral Agent receives such a notice, it shall promptly
give notice thereof to the Administrative Agent. In the event that the
Administrative Agent receives such a notice from the Collateral Agent, any
Lender or a Borrower, the Administrative Agent shall give notice thereof to
the Lenders. Each of the Administrative Agent and the Collateral Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders or (in the case of the Collateral
Agent) as shall be reasonably directed by the Administrative Agent; PROVIDED
that unless and until the Administrative Agent or the Collateral Agent (as
the case may be) shall have received such directions, it may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
13.6 NON-RELIANCE ON ADMINISTRATIVE AGENT, COLLATERAL AGENT AND
OTHER LENDERS. Each Lender expressly acknowledges that none of the
Administrative Agent, the Collateral Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent or the Collateral Agent hereinafter taken, including any
review of the affairs of any Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent or the Collateral
Agent (as the case may be) to any Lender. Each Lender represents to the
Administrative Agent and the Collateral Agent that such Lender has,
independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of each Borrower and made its own decision to
make its Loans and other extensions of credit hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent, the Collateral Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the
other Credit Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent or the Collateral Agent hereunder, neither the
Administrative Agent nor the Collateral Agent (as the case may be) shall have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, conditio
(financial or otherwise), prospects or creditworthiness of any Borrower which
may come into the possession of the Administrative Agent or the Collateral
Agent (as the case may be) or any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
13.7 INDEMNIFICATION. The Lenders agree to indemnify each of the
Administrative Agent, the Collateral Agent, the Documentation Agent and the
Syndication Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably (according to the percentage which the Revolving Credit Commitment of
such Lender constitutes of the Aggregate Revolving Credit Commitment
88
on the date on which indemnification is sought), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Loans) be imposed on, incurred by or asserted against the Administrative
Agent, the Collateral Agent, the Documentation Agent or the Syndication Agent
in any way relating to or arising out of, the Aggregate Revolving Credit
Commitment and/or the European Overdraft Commitment, this Agreement, any of
the other Credit Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent, the Collateral Agent,
the Documentation Agent or the Syndication Agent under or in connection with
any of the foregoing; PROVIDED that no Lender shall be liable for the payment
of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the gross negligence or willful misconduct of the Administrative Agent, the
Collateral Agent, the Documentation Agent or the Syndication Agent (as the
case may be). The agreements in this subsection 13.7 shall survive the
payment of the Loans and all other amounts payable hereunder.
13.8 AGENTS IN THEIR INDIVIDUAL CAPACITIES. Each of the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent and their respective Affiliates and Subsidiaries may make
loans to, accept deposits from and generally engage in any kind of business
with any Borrower as though the Administrative Agent, the Collateral Agent,
the Documentation Agent or the Syndication Agent (as the case may be) were
not the Administrative Agent, the Collateral Agent, the Documentation Agent
or the Syndication Agent hereunder and under the other Credit Documents.
With respect to the Loans and other extensions of credit made by it, each of
the Administrative Agent, the Collateral Agent, the Documentation Agent and
the Syndication Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any Lender and may exercise the
same as though it were not the Administrative Agent, the Collateral Agent,
the Documentation Agent or the Syndication Agent (as the case may be), and
the terms "Lender" and "Lenders" shall include each of the Administrative
Agent, the Collateral Agent, the Documentation Agent and the Syndication
Agent in its respective individual capacity.
13.9 SUCCESSOR AGENTS. Each of the Administrative Agent, the
Collateral Agent, the Documentation Agent and the Syndication Agent may
resign as such upon 30 days' notice to the Lenders. If the Administrative
Agent shall resign as "Administrative Agent" or the Collateral Agent shall
resign as "Collateral Agent" under this Agreement and the other Credit
Documents, then the Required Lenders shall appoint from among the Lenders a
successor Administrative Agent or Collateral Agent (as the case may be) for
the Lenders, which successor Administrative Agent or Collateral Agent
(PROVIDED that, to the extent that no Default or Event of Default is
continuing at the time of such appointment, such Administrative Agent or
Collateral Agent, as the case may be, shall have been approved by the
Company), shall succeed to the rights, powers and duties of the
Administrative Agent or the Collateral Agent (as the case may be) hereunder.
Effective upon such appointment and approval, the term "Administrative Agent"
or "Collateral Agent" (as the case may be) shall mean such successor
Administrative Agent or Collateral Agent, and the rights, powers and duties
of the former Administrative Agent as Administrative Agent or of the former
Collateral Agent as Collateral Agent (as the case may be) shall be
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terminated, without any other or further act or deed on the part of such
former Administrative Agent or Collateral Agent (as the case may be) or any
of the parties to this Agreement or any holders of the Loans. After any
resignation of the retiring Administrative Agent as Administrative Agent or
of the retiring Collateral Agent as Collateral Agent, the provisions of this
Section 13 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent or Collateral Agent (as the
case may be) under this Agreement and the other Credit Documents.
Notwithstanding anything to the contrary contained herein, during such time
as shares of capital stock of Hexcel Pottsville Corporation are pledged to
the Collateral Agent pursuant to the terms hereof, any successor Collateral
Agent shall be a Person who is acceptable to the Defense Investigative
Service. If the Syndication Agent shall resign as "Syndication Agent" under
this Agreement and the other Credit Documents, then no successor Syndication
Agent shall be appointed. If the Documentation Agent shall resign as
"Documentation Agent" under this Agreement and the other Credit Documents,
then no successor Documentation Agent shall be appointed.
SECTION 14. MISCELLANEOUS
14.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this subsection. The
Majority Lenders may, or, with the written consent of the Majority Lenders,
the Administrative Agent (and/or, to the extent applicable, the Collateral
Agent) may, from time to time, (a) enter into with each Borrower directly
affected thereby written amendments, supplements or modifications hereto and
to the other Credit Documents for the purpose of adding any provisions to
this Agreement or the other Credit Documents or changing in any manner the
rights of the Lenders or of such Borrowers hereunder or thereunder or (b)
waive, on such terms and conditions as the Majority Lenders or the
Administrative Agent (and/or, to the extent applicable, the Collateral
Agent), as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; PROVIDED, HOWEVER, that no such
waiver and no such amendment, supplement or modification shall:
(i) without the consent of each Lender directly
affected thereby, (A) reduce the amount or extend the scheduled
date of maturity of any Loan or of any installment thereof, (B)
reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or (C) increase
the amount or extend the expiration date of any Lender's Revolving
Credit Commitment;
(ii) without the written consent of all the Lenders, (A)
amend, modify or waive any provision of this subsection, (B) reduce
the percentage specified in the definition of Required Lenders or
Majority Lenders, (C) consent to the assignment or transfer by any
Borrower of any of its rights and obligations under this Agreement
and the other Credit Documents or (D) release all or substantially
all of the Collateral;
(iii) without the prior written consent of the Issuing
Lender with respect thereto, amend, supplement or otherwise modify
any provisions of or directly applicable to any
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Letter of Credit;
(iv) amend, modify or waive any provision of Section 4
or any other provision of this Agreement governing the rights or
obligations of the Swing Line Lender without the written consent of
the Swing Line Lender;
(v) amend, modify or waive any provision of Section 5
or any other provision of this Agreement directly governing the
rights or obligations of any Local European Lender without the
written consent of such Local European Lender;
(vi) amend, modify or waive any provision of Section 6
or any other provision of this Agreement governing the rights or
obligations of the European Overdraft Lender without the written
consent of the European Overdraft Lender; or
(vii) amend, modify or waive any provision of Section 13
without the written consent of the then Administrative Agent and,
to the extent affected thereby, the Collateral Agent.
Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrowers,
the Lenders, the Collateral Agent, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Borrowers, the Lenders,
the Collateral Agent and the Administrative Agent shall be restored to their
former positions and rights hereunder and under the other Credit Documents,
and any Default or Event of Default waived shall be deemed to be cured and
not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
14.2 RELEASE OF COLLATERAL. (a) Notwithstanding anything to the
contrary contained herein (other than the provisions of subsection 14.2(b))
or in any Security Document, the Collateral Agent shall (upon request of the
Company, but without any notice to or vote or consent of any Lender) take
action having the effect of releasing:
(i) any collateral and/or guarantee obligations provided for in
any Credit Document to the extent necessary to permit the consummation
of any Net Proceeds Event or any asset dispositions permitted by
subsection 11.6 by the Company or any of its Subsidiaries in accordance
with the provisions of this Agreement and the Credit Documents; PROVIDED
that the Net Proceeds of any Net Proceeds Events are applied in the
manner contemplated by subsections 7.5 (if so required); and
(ii) all collateral and guarantee obligations provided for in the
Credit Documents upon the termination of each of the Aggregate Revolving
Credit Commitment and the European Overdraft Commitment, payment in full
of all Loans and Reimbursement Obligations owing hereunder and
termination of all L/C Obligations.
In furtherance of the foregoing, each Lender hereby authorizes and instructs the
Collateral Agent to execute and deliver or file such termination and partial
release statements and do such other
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things as the Company reasonably may request to evidence and effect any
release contemplated hereby.
(b) Notwithstanding the provisions of subsection 14.2(a), the
Collateral Agent shall not be required to execute any release document
which, in the Collateral Agent's opinion, would expose the Collateral
Agent to liability or impose additional obligations upon the Collateral
Agent.
14.3 NOTICES. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing
(including by facsimile transmission) and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made (a) in
the case of delivery by hand, when delivered, (b) in the case of
delivery by mail, three days after being deposited in the mails, postage
prepaid, or (c) in the case of delivery by facsimile transmission, when
sent and receipt has been confirmed, addressed as follows in the case of
the Borrowers, the Collateral Agent and the Administrative Agent, and as
set forth in Schedule II in the case of the other parties hereto, or to
such other address as may be hereafter notified by the respective
parties hereto:
The Company: Hexcel Corporation
Two Stamford Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: 203/▇▇▇-▇▇▇▇
Foreign Borrowers: ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: 203/▇▇▇-▇▇▇▇
The Collateral Agent: Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ________________________
Fax: ______________________________
The Administrative Agent: Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ________________________
Fax: ______________________________
PROVIDED that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsection 2.2, 3.2,
4.2, 5.2, 5.3, 5.7, 6.2, 7.3, 7.4, 7.6 or 7.11(b)
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shall not be effective until received.
14.4 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent, the
Collateral Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Credit Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
14.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Credit Documents
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder.
14.6 PAYMENT OF EXPENSES AND TAXES. The Borrowers agree (a) to
pay or reimburse the Administrative Agent and the Collateral Agent for all
its respective out-of-pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment, supplement
or modification to, this Agreement and the other Credit Documents and any
other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements
of the several counsel to the Administrative Agent and the Collateral Agent,
(b) to pay or reimburse each Lender, the Collateral Agent and the
Administrative Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Credit Documents and any such other documents, including, without
limitation, the fees and disbursements of the several counsel to the Lenders,
the Collateral Agent and the Administrative Agent, (c) to pay, indemnify, and
hold each Lender, the Collateral Agent, the Administrative Agent, the
Documentation Agent and the Syndication Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the
other Credit Documents and any such other documents and (d) to pay,
indemnify, and hold each Lender, the Collateral Agent, the Administrative
Agent, the Documentation Agent and the Syndication Agent harmless from and
against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whasoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other
Credit Documents and the other transactions contemplated hereby, or the use
of the proceeds of the Loans and other extensions of credit hereunder and any
such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental, Health or Safety Requirements of Law applicable to the
operations of the Company, any of its Subsidiaries or any Property (all the
foregoing in this clause (d), collectively, the "INDEMNIFIED LIABILITIES"),
PROVIDED that (x) no Borrower shall be obligated hereunder to the
Administrative Agent, the Collateral Agent, the Documentation
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Agent, the Syndication Agent or any Lender with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent or any such Lender (as the case may be), (y) (ii) neither
of Composites-UK or Hexcel-Spain shall be liable for any indemnified
liabilities to the extent such indemnified liabilities relate to or are
associated with its own acquisition by the Company or any of its Subsidiaries
and (z) none of the Foreign Borrowers shall have any obligation to the
Administrative Agent, the Collateral Agent, the Documentation Agent, the
Syndication Agent or any Lender hereunder with respect to indemnified
liabilities relating to the Revolving Credit Loans made to the Company, Swing
Loans or Letters of Credit issued for the account of a Borrower other than
such Foreign Borrower. The agreements in this subsection 14.6 shall survive
repayment of the Loans and all other amounts payable hereunder.
14.7 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a)
This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Collateral Agent, the Administrative Agent and
their respective successors and assigns, except that no Borrower may assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
one or more banks or other entities ("PARTICIPANTS") participating interests
in any Revolving Credit Loan owing to such Lender, the Revolving Credit
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Credit Documents. In the event of any such sale by a Lender
of a participating interest to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Loan or other extension of credit
for all purposes under this Agreement and the other Credit Documents, and the
relevant Borrowers, the Collateral Agent and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Credit
Documents. No Lender shall be entitled to create in favor of any
Participant, in the participation agreement pursuant to which such
Participant's participating interest shall be created or otherwise, any right
to vote on, consent to or approve any matter relating to this Agreement or
any other Credit Document except for those specified in clause (ii) of the
proviso to subsection 14.1 or, to the extent that such Lender would have the
right to vote on any matter specified therein, clause (i) of such proviso.
The Borrowers agree that if amounts outstanding under this Agreement are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall, to the
maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, PROVIDED that, in
purchasing such participating interest, such Participant shall be deemed to
have agreed to share with the Lenders the proceeds thereof as provided in
subsection 14.8(a) as fully as if it were a Lender hereunder. The Borrowers
also agree that each Participant shall be entitled to the benefits of
subsections 7.13, 7.14 and 7.15 with respect to its participation in the
Revolving Credit Commitments, Revolving Credit Loans and other extensions of
credit outstanding from time to time as if it was a Lender; PROVIDED that, in
the case of subsection 7.14,
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such Participant shall have complied with the requirements of said subsection
and PROVIDED, FURTHER, that no Participant shall be entitled to receive any
greater amount pursuant to any such subsection than the transferor Lender
would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had
no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to (i) any Lender or any affiliate thereof, (ii) with the
consent of the Administrative Agent (which shall not be unreasonably
withheld), to any Eligible Assignee or (iii) with the consent of the
Administrative Agent and the Company (which, in each case, shall not be
unreasonably withheld), to any additional bank or financial institution (any
assignee described in clause (i), (ii) or (ii), an "ASSIGNEE") all or any
part of its rights and obligations under this Agreement and the other Credit
Documents pursuant to an Assignment and Acceptance, substantially in the form
of Exhibit G, executed by such Assignee, such assigning Lender (and, in the
case of an Assignee that is not then a Lender or an affiliate thereof, by the
Administrative Agent and, to the extent required pursuant to clause (iii)
above, by the Company) and delivered to the Administrative Agent for its
acceptance and recording in the Register, PROVIDED that, in the case of any
such assignment to an additional bank or financial institution, the sum of
the aggregate principal amount of the Loans, the aggregate amount of the L/C
Obligations and the aggregate amount of the Available Revolving Credit
Commitment being assigned is not less than $5,000,000 (or such lesser amount
as may be agreed to by the Company and the Administrative Agent). Upon such
execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Revolving Credit Commitment as set forth therein, and (y)
the assigning Lender thereunder shall, to the extent provided in 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 assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this paragraph (c) and paragraph (e) of this
subsection 14.7, the consent of the Company shall not be required, and,
unless requested by the Assignee and/or the assigning Lender, new Notes shall
not be required to be executed and delivered by the relevant Borrower, for
any assignment which occurs at any time when any of the events described in
Section 12(f) shall have occurred and be continuing.
(d) The Administrative Agent, on behalf of each Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
14.3 a copy of each Assignment and Acceptance delivered to it and a register
(the "REGISTER") for the recordation of the names and addresses of the
Lenders and the Revolving Credit Commitments of, and principal amounts of the
Loans owing to, each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent, the Collateral Agent and the Lenders may (and, in the
case of any Loan or other obligation hereunder not evidenced by a Note,
shall) treat each Person whose name is recorded in the Register as the owner
of a Loan or other obligation hereunder as the owner thereof for all purposes
of this Agreement and the other Credit Documents, notwithstanding any notice
to the contrary. Any
95
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being
made in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Company and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders,
the Company and (if not the Company) the relevant Borrower.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been
delivered to such Lender by or on behalf of such Borrower in connection with
such Lender's credit evaluation of such Borrower and its Affiliates prior to
becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 14.7 concerning
assignments of Loans and Notes relate only to absolute assignments and that
such provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by a Lender of any
Loan or Note to any Federal Reserve Bank in accordance with applicable law.
14.8 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED
LENDER") shall at any time receive any payment of all or part of any of its
Loans or Reimbursement Obligations owing to it under the Revolving Credit
Commitment, or interest thereon, pursuant to a guarantee or otherwise, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off or otherwise), in a greater proportion than any
such payment to and collateral received by any other Lender, if any, in
respect of such other Lender's Revolving Credit Loans or Reimbursement
Obligations owing to it under the Revolving Credit Commitment or interest
thereon, such benefitted Lender shall purchase for cash from the other Lender
such portion of each such other Lender's similar Loans or Reimbursement
Obligations, or shall provide such other Lender with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders which hold the Revolving Credit
Commitment; PROVIDED, HOWEVER, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. Each Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans or
Reimbursement Obligations may exercise all rights of payment (including,
without limitation, rights of set-off) with respect to such portion as fully
as if such purchasing Lender were the direct holder of such portion.
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(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the
relevant Borrower, any such notice being expressly waived by such Borrower to
the extent permitted by applicable law, upon any amount becoming due and
payable by a Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional
or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of such
Borrower. Each Lender agrees promptly to notify the relevant Borrower and
the Administrative Agent after any such set-off and application made by such
Lender, PROVIDED that the failure to give such notice shall not affect the
validity of such set-off and application.
14.9 COUNTERPARTS. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of
the copies of this Agreement signed by all the parties shall be lodged with
the Company and the Administrative Agent.
14.10 CERTAIN WAIVERS. (a) Each Lender hereby acknowledges that
certain of the Foreign Pledge Agreements and related documentation may not be
executed and delivered prior to or on the Closing Date. Each Lender hereby
waives compliance with the provision of Section 9 of this Agreement to the
extent and only to the extent necessary to permit the Borrowers to borrow
under the this Agreement without the delivery of such Pledge Agreements and
other documentation. The Company hereby covenants that it shall, and shall
cause its Subsidiaries to, deliver to the Administrative Agent all such
Foreign Pledge Agreements and related documentation within 30 days following
the Closing Date and that the failure to deliver any such Foreign Pledge
Agreement or related documentation within such 30-day period shall constitute
an Event of Default hereunder; PROVIDED that the Administrative Agent may (in
its sole discretion) elect to extent such 30-day period by not more than an
additional 30 days.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Borrowers shall not be entitled to borrow European Revolving
Loans under this Agreement until March 11, 1998; PROVIDED that such
restriction shall not affect the commitment fees payable pursuant to this
Agreement if such European Revolving Loans were available (but undrawn)
during such period.
(c) The Company hereby agrees, and each Lender which is both a
party to this Agreement and the Existing Agreement hereby agrees (in its
capacity as a "Lender" under the Existing Agreement), that:
(i) the Existing Agreement hereby is superseded by this Agreement,
except that (A) the Company and its Subsidiaries shall remain obligated to
pay any amounts owing thereunder, (B) any provision of the Existing
Agreement which is expressly stated therein to survive the termination
thereof shall be deemed to be incorporated in this Agreement for the
benefit of the Lenders under (and as defined in) the Existing Agreement and
(C)
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the Revolving Credit Commitments of each Lender under (and as defined
in) the Existing Agreement (and any related provisions of the Existing
Agreement) shall remain in effect through March 11, 1998 to the extent
necessary to permit the Borrowers under the Existing Agreement to borrow
European Revolving Loans through such date in accordance with the terms of
the Existing Agreement (with the Company acknowledging and agreeing, on
its own behalf and on behalf of each of its Subsidiaries, that any credit
support and collateral security granted pursuant to the Existing Agreement
shall continue to secure and support such European Revolving Loans until
they are superseded by European Revolving Loans under this Agreement or
repaid); and
(ii) on March 11, 1998, the Revolving Credit Obligations under (and
as defined in) the Existing Agreement shall be due and payable (it being
understood that such Revolving Credit Obligations may be paid through
borrowings or other extensions of credit under this Agreement).
14.11 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
14.12 INTEGRATION. This Agreement and the other Credit Documents
represent the agreement of the Borrowers, the Administrative Agent, the
Collateral Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent, the Collateral Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other
Credit Documents.
14.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14.14 SUBMISSION TO JURISDICTION; WAIVERS. Each Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and for its property to the non-exclusive
jurisdiction of any New York State or Federal court sitting in The City of
New York and any competent court of the jurisdiction of organization of
such Borrower (a "LOCAL COURT"), and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement
or the Notes;
(b) agrees that all claims in respect of such action or proceeding
may be heard and determined in such New York State or local court or, to
the extent permitted by law, in such Federal court and waives, to the
fullest extent it may effectively do so, any defense of an inconvenient
forum to the maintenance of such action or proceeding in any
98
such court and any right of jurisdiction on account of the place of
residence or domicile of such Borrower;
(c) appoints United States Corporation Services Company (the "NEW
YORK PROCESS AGENT"), with an office on the date hereof at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on behalf of
such Borrower and its respective property service of copies of the
summons and complaint and any other process which may be served in any
such action or proceeding in any such New York State or Federal court
and agrees promptly to appoint a successor New York Process Agent in The
City of New York (which successor Process Agent shall accept such
appointment in a writing prior to the termination for any reason of the
appointment of the initial New York Process Agent);
(d) agrees that, in any such action or proceeding in such New York
State or Federal court sitting in The City of New York, such service may
be made on such Borrower by delivering a copy of such process to such
Borrower in care of the appropriate Process Agent at such Process
Agent's above address and by depositing a copy of such process in the
mails by certified or registered air mail, addressed to such Borrower
(such service to be effective upon such receipt by the appropriate
Process Agent and the depositing of such process in the mails as
aforesaid);
(e) authorizes and directs such Process Agent to accept such
service on its behalf.
(f) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law (including,
without limitation, by the mailing of copies of such process to such
Borrower by certified or registered air mail at its address referred to
in subsection 14.3 or shall limit the right to ▇▇▇ in any other
jurisdiction;
(g) agrees that, to the fullest extent permitted by applicable
law, 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; and
(h) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding
referred to in this subsection 14.14 any special, exemplary, punitive or
consequential damages.
14.15 ACKNOWLEDGEMENTS. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents;
(b) none of the Administrative Agent, the Collateral Agent or any
Lender has any fiduciary relationship with or duty to such Borrower
arising out of or in connection with this Agreement or any of the other
Credit Documents, and the relationship between Administrative Agent, the
Collateral Agent and the Lenders, on one hand, and such Borrower, on the
other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
99
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among such Borrower and the Lenders.
14.16 WAIVERS OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE
AGENT, THE COLLATERAL AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
14.17 CONFIDENTIALITY. Subject to subsection 14.7(f), the
Administrative Agent, the Collateral Agent and the Lenders shall hold all
nonpublic information obtained pursuant to the requirements hereof and
identified as such by any Borrower in accordance with such Person's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by a bona fide offeree, assignee or
participant in connection with the contemplated transfer or participation, or
as required or requested by any Governmental Authority or representative
thereof, or pursuant to legal process or any applicable Requirement of Law,
or to its accountants, lawyers and other advisors, and shall require any such
offeree, assignee or participant to agree (and require any of its offerees,
assignees or participants to agree) to comply with this subsection 14.17. In
no event shall the Administrative Agent, the Collateral Agent or any Lender
be obligated or required to return any materials furnished by the Borrowers;
PROVIDED, that each offeree shall be required to agree that if it does not
become an assignee or participant it shall return all materials furnished to
it by the Borrowers in connection herewith.
14.18 JUDGMENT CURRENCY. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in any currency (the "ORIGINAL CURRENCY") into another currency
(the "OTHER CURRENCY") the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent
could purchase the Original Currency with the Other Currency at 11:00 a.m. in
New York, New York on the second Business Day preceding that on which final
judgment is given.
(b) The obligation of any Borrower in respect of any sum due in
the Original Currency from it to any Lender, the Collateral Agent or the
Administrative Agent hereunder or under the Note held by such Lender shall,
notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Lender, the
Collateral Agent or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in such Other Currency such Lender, the Collateral
Agent or the Administrative Agent (as the case may be) may in accordance with
normal banking procedures purchase Dollars with such Other Currency; if the
amount of the Original Currency so purchased is less than the sum originally
due to such Lender, the Collateral Agent or the Administrative Agent (as the
case may be) in the Original Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender,
the Collateral Agent or the Administrative Agent (as the case may be) against
such loss, and if the amount of the Original Currency so purchased
100
exceeds the sum originally due to any Lender or the Administrative Agent (as
the case may be) in the Original Currency, such Lender, the Collateral Agent
or the Administrative Agent (as the case may be) agrees to remit to such
Borrower such excess.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
HEXCEL CORPORATION
HEXCEL (U.K.) LIMITED
HEXCEL COMPOSITES LIMITED
HEXCEL S.A. (France)
HEXCEL FABRICS S.A.
HEXCEL COMPOSITES S.A.
HEXCEL COMPOSITES S.A. (Belgium)
SALVER S.r.L.
HEXCEL COMPOSITES GMBH (Austria)
HEXCEL COMPOSITES S.A. (Spain)
HEXCEL COMPOSITES GMBH (Germany)
By:____________________________________
Title:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent and as Documentation
Agent
By:____________________________________
Title:
By:____________________________________
Title:
CITIBANK, N.A., as Collateral Agent and
as a Lender
By:____________________________________
Title:
By:____________________________________
Title:
2
CITICORP SECURITIES, INC. as Syndication Agent
By:____________________________________
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
By:____________________________________
Title:
By:____________________________________
Title:
CREDIT SUISSE FIRST BOSTON,
as a Local Lender
By:____________________________________
Title:
By:____________________________________
Title:
CREDIT SUISSE FIRST BOSTON
AKTIENGESELLSCHAFT, as a Local Lender
By:____________________________________
Title:
By:____________________________________
Title:
▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as Lender
By:____________________________________
Title:
4
BANQUE NATIONAL DE PARIS,
San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Lender
By:____________________________________
Title:
5
THE CHASE MANHATTAN BANK, as Lender
By:____________________________________
Title:
6
CREDIT LYONNAIS, as Lender
By:____________________________________
Title:
7
ISTITUTO BANCARIO SAN PAOLO
DI TORINO, S.p.A., as Lender
By:____________________________________
Title:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇.▇.▇., as a Local Lender
By:____________________________________
Title:
8
SOCIETE GENERALE, as Lender
By:____________________________________
Title:
9
SWISS BANK CORPORATION, Stamford and
Cayman Island Branches, as Lender
By:____________________________________
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, as Lender
By:____________________________________
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, as Lender
By:____________________________________
Title:
SCHEDULE I
LENDER; COMMITMENTS
COMMITMENTS IN U.S. DOLLARS
NAME OF LENDER SYNDICATED FACILITY EUROPEAN OVERDRAFT FACILITY
------------------------------------------------------------------------------------
Credit Suisse First Boston U.S.$50,000,000.00 U.S.$0.00
Citibank, N.A. 40,000,000.00 10,000,000.00
The Bank of New York 40,000,000.00 0.00
The Chase Manhattan Bank 40,000,000.00 0.00
Credit Lyonnais 40,000,000.00 0.00
Banque Nationale de Paris 25,000,000.00 0.00
Istituto Bancario San Paolo 10,000,000.00 0.00
Societe Generale 25,000,000.00 0.00
Swiss Bank Corporation 25,000,000.00 0.00
Union Bank of California, N.A. 25,000,000.00 0.00
Union Bank of Switzerland 25,000,000.00 0.00
-------------------------------------------------------------------------------------
TOTAL: 345,000,000.00 10,000,000.00
SCHEDULE II
ADDRESSED FOR NOTICES
THE BANK OF NEW YORK
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BANQUE NATIONAL DE PARIS
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 212-270-7939
CITIBANK, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
CREDIT LYONNAIS
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
ISTITUTO BANCARIO SAN PAOLO DI TORINO
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SOCIETE GENERALE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SWISS BANK CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
UNION BANK OF CALIFORNIA
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
UNION BANK OF SWITZERLAND
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE 3.10
EXISTING LETTERS OF CREDIT
ISSUING BANK* BENEFICIARY STATED AMOUNT L/C NUMBER
BNP Safeco Insurance Co. USD 576,000 # 0086850
BNP Northrop Grumman Corp USD 1,563,819 0189019
BNP Zurich Insurance Co. USD 100,000 0189020
BNP Home Insurance Co. USD 75,000 0189021
BNP Safeco Insurance Co. USD 288,375 # 0189022
BNP Self Insurance Plans - CA USD 645,218 # 0189023
BNP Zurich Insurance Co. USD 100,000 0189067
BNP H.M. Customs & Excise GBP 200,000 0189072
* Note BNP stands for Banque Nationale de Paris
# Subject to change due to self-insurance annual security calculation
requirements.
SCHEDULE 7.5
PERMITTED PROPERTY SALES
DESCRIPTION MINIMUM NET
CASH PROCEEDS
1. The manufacturing plant located in Lancaster, Ohio USD 200,000
2. The manufacturing plant located in Welkenraedt, Belgium USD 600,000
3. The manufacturing plant located in Graham, Texas USD 0
4. The manufacturing plant located in Brindisi, Italy USD 0
5. The Company will purchase from F&P Properties a certain USD 0
piece of real property adjacent to the Livermore,
California facility in the amount of approximately
4.7 acres and then sell the property. Purchase from F&P
pending required environmental clean-up of site.
6. The real property located in Lodi, New Jersey USD 0
SCHEDULE 8.4
ADDITIONAL REQUIREMENTS OF FOREIGN LAW
BELGIUM
Filing stipulated in the first paragraph of Article 17b is of the Belgium Law of
March 2, 1989 on the publication of important holdings in stock exchange
companies and the organization of public takeover bids (in connection with
Hexcel Belgium).
SCHEDULE 8.6
EXISTING LITIGATION
DESCRIPTION
1. GEC Alsttom vs. Hexcel Composites S.A. (Belgium)
An action for damage brought by a customer based on product liability. The
claim relates to allegedly defective panels, delivered 1989-1992, which
have since delaminated after being installed in railway carriages in
France. The case is proceeding through the French Courts and has yet to be
quantified. A report of judicial experts is expected shortly.
2. ANF vs. Hexcel Composites S.A. (Belgium)
An action for damage brought by a customer based on product liability. The
claim relates to allegedly defective panels, delivered 1989-1992, which
have since delaminated after being installed in railway carriages in
France. The case is proceeding through the French Courts and has yet to be
quantified. A report of judicial experts is expected shortly.
SCHEDULE 8.14
SUBSIDIARIES
Name Of Company And Its Jurisdiction of Incorporation Outstanding shares and Stockholders
Subsidiaries
Hexcel Corporation Delaware 2,344 (as of 12/31/97) stockholders
▇▇-▇▇▇▇▇▇▇ 2 March 1983 of common stock 100,000,000 common,
20,000,000 preferred as of 12/31/97
Outstanding shares: 36,856,238
Hexcel Far East California Hexcel Corporation (10,000)
▇▇-▇▇▇▇▇▇▇ 8 July 1974
Hexcel Foundation California (nonprofit public no shares issued
▇▇-▇▇▇▇▇▇▇ benefit)
27 November 1984
Hexcel International California Hexcel Corporation (100)
▇▇-▇▇▇▇▇▇▇ 7 June 1982
Hexcel Omega Corporation California Hexcel International (1,000)
▇▇-▇▇▇▇▇▇▇ 8 April 1996
Hexcel Pacific Rim California Hexcel Corporation (1,000)
Corporation 1 January 1997
▇▇-▇▇▇▇▇▇▇
Hexcel Pacific Rim Delaware Hexcel Corporation (3,000)
Corporation (formerly 6 February 1995
Hexcel Alpha Corp.)
▇▇-▇▇▇▇▇▇▇
Hexcel Beta Corp. Delaware Hexcel Corporation (3,000)
▇▇-▇▇▇▇▇▇▇ 6 February 1995
Hexcel Pottsville Delaware Hexcel Corporation (100)
Corporation 15 November 1995
▇▇-▇▇▇▇▇▇▇
Hexcel Technologies Inc. Delaware Hexcel Corporation (100)
▇▇-▇▇▇▇▇▇▇ 1 May 1990
Hexcel Composites GmbH Austria Hexcel Far East (250,000)
FN144908a 15 May 1996 250,000 Outstanding
500,000 Authorized
Hexcel Composites S.A. Belgium Hexcel Corporation (254,719)
402.459.235 19 June 1967 Hexcel International (1)
Hexcel do Brasil Servicos Brazil Hexcel Corporation (201,069)
S/C Ltda. 20 March 1986 Hexcel International (1)
43.397.601/0001-18
Confection et Diffusion France Hexcel Fabric S.A.[France] (3,195)
de Stores et ▇▇▇▇▇▇▇ 14 March 1979 Hexcel S.A.[France] (986)
R.C.S. Lyon B 315 253 021 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (1)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (1)
▇▇▇▇▇▇ ▇▇▇▇▇ (1)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (1)
Hexcel International (1)
Hexcel S.A. France Hexcel Corporation (92,204)
R.C.S. Lyon B 955 508 007 7 December 1933 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (1)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (1)
▇▇▇▇▇▇ ▇▇▇▇▇ (1)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (1)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (1)
Hexcel International (1)
SCHEDULE 8.14
SUBSIDIARIES
Name Of Company And Its Jurisdiction of Incorporation Outstanding shares and Stockholders
Subsidiaries
Hexcel Fabrics S.A France Hexcel S.A. (2,494)
B410287379. 24 December 1996 Hexcel Corporation (1)
Hexcel International (1)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (1)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (1)
▇▇▇▇▇▇ ▇▇▇▇▇ (1)
▇▇▇ ▇▇▇▇▇▇▇▇ (1)
Hexcel Composites S.A. France Hexcel S.A. (499,694)
B410286702 24 December 1996 Hexcel Corporation (1)
Hexcel International (1)
▇▇▇▇▇▇▇ ▇▇▇▇ (1)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (1)
▇▇▇▇▇ ▇▇▇▇▇ (1)
▇▇▇ ▇▇▇▇▇▇▇▇ (1)
Hexcel Composites GmbH Germany Hexcel (U.K.) Limited (50,000)
HRB 114589 18 August 1996
Salver S.r.l. Italy Hexcel Corporation (1,580,000)
00063690747 20 June 1970 Hexcel International (90,000,000)
Hexcel Composites, S.A. Spain Hexcel (U.K.) Limited (145,250)
A78399672 18 December 1986
Hexcel Chemical Products United Kingdom Hexcel Corporation (596,085)
Ltd 14 September 1972 Hexcel Corporation and
1071897 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (1)
Hexcel Composites Limited United Kingdom Ciba-Geigy AG (50,000,002 deferred)
3069887 19 June 1995 Hexcel (UK) Limited (200,000 ordinary)
Hexcel (U.K.) Limited United Kingdom Hexcel Corporation (502,000 ordinary)
1088844 29 December 1972 Hexcel Corporation (225,000 redeemable)
Joint Ventures and Other Equity Interests
Name of Joint Venture or Jurisdiction Summary of Ownership
Other Equity Interest Interest
Hexcel-DIC Partnership California Joint venture (general partnership)
owned 42% by Hexcel Technologies Inc.
and 58% by DIC Technologies, Inc.
DIC-HEXCEL, Ltd. Japan corporation owned 100% by Hexcel-DIC
Partnership
Pole Asset Management, LLC California Owned 50% by Hexcel Beta
1 September 1996
SCHEDULE 8.15
ENVIRONMENTAL MATTERS
DESCRIPTION
1. Hexcel Lodi, New Jersey Facility
This site was sold to Fine Organics Corporation in 1986. The sale
triggered provisions of New Jersey Law essentially requiring the site to be
cleaned up. To that end, Hexcel entered into an Administrative Consent
Order for the clean up of the site, and has satisfied the statutory net
worth and cash flow tests to assure performance. The State of New Jersey
has approved Hexcel's remediation plan. The cost of the remediation is
largely dependent on developing circumstances including the possible
redevelopment of the entire area in which this facility is located. Based
on certain assumptions relating to the developing circumstances, Hexcel
believes the cost of remediation will be approximately $2,000,000.
2. Former Hexcel Facility, City of Industry, California
As a result of spills that occurred at a former Hexcel facility located in
the City of Industry, CA, Hexcel has been named a Potentially Responsible
Party (PRP) in the ▇▇▇▇▇▇ Valley Subbasin of the San ▇▇▇▇▇▇▇ Superfund.
Together with other PRP's Hexcel has signed a Consent Decree to participate
in a remedial investigation and feasibility study of the subbasin. Hexcel
agreed to a 2.68% allocation for this work. Hexcel has paid virtually all
of it's obligation under this agreement. Hexcel's future obligations in
the basin-wide superfund proceedings have currently not yet determined and
will be a subject of future discussion with the USEPA and the other PRP's.
In addition, Hexcel has consented to a State of California EPA request to
institute further remedial activities at it's former facility. This work
is expected to cost approximately $450K.
3. Heath Tecna, Kent Washington Facility
An investigation of groundwater contamination at this facility commenced in
or around 1982. The source of the contamination has been identified. The
contaminants of concern are trichloroethylene (TCE) and its degradation
products, primarily vinyl chloride. A groundwater remediation project has
been implemented and is operational. The maintenance of this project is
estimated to cost between $250,000 and $300,000 per year for 20 to 30 years
for an estimated total cost of $5,550,000.
SCHEDULE 9.1
INTERNATIONAL COUNSEL
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (UK)
UK COUNSEL
▇.▇. ▇▇▇▇▇▇▇▇▇
FRANCE COUNSEL
BRUCKHAUS ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
AUSTRIA COUNSEL
▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
BELGIUM COUNSEL
MARENA, AGHINA, BONVICINI & LEDERGNENI
ITALY COUNSEL
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ ABOGADOS
SPAIN COUNSEL
DOSER AMERELLER ▇▇▇▇▇
GERMAN COUNSEL
SCHEDULE 11.2
INDEBTEDNESS
1. Indebtedness underlying certain Liens as set forth on Schedules 11.3.
DESCRIPTION OUTSTANDING AT CLOSING
CAPITAL LEASES (UNITED STATES)
2. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustees USD 675,521
under Revocable Trust Agreement dated May 16,
1972, as amended, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
under Trust Agreement dated July 11, 1969, as
amended December 31, 1994: Real property and
improvements At Building #73 in Casa Grande, AZ.
3. ▇▇▇▇▇ Family Trust doing business as Valley USD 851,446
Warehouse and Storage Company, lessor, under
Lease Agreement dated April 1, 1991, as amended
December 21, 1994 and June 23, 1995: Three
Warehouses and real property in Casa Grande, AZ
(maturity November 20, 2009).
CAPITAL LEASES (EUROPE)
4. Batimap/Slicomi lease for various buildings and FRF 6,649,559
land at Plant B in Lyon, France.
5. Raiffeisen Leasing Gesellschaft m.b.H. for
building ATS 39,061,736 in Pasching, Austria
with repayment by 12/31/2012.
OTHER AGREEMENTS FOR BORROWED MONEY (U.S.)
6. Bankruptcy priority claims USD 680,386
7. City of Chandler, AZ for taxes owed under the USD 78,097
terms of the bankruptcy proceedings of Hexcel Corp.
8. F&P Properties Note Payable for Livermore land USD 240,000
OTHER AGREEMENTS FOR BORROWED MONEY
HEXCEL COMPOSITES S.A. (BELGIUM)
9. Miscellaneous overdraft lines BEF 90,000,000
HEXCEL S.A. (FRANCE), HEXCEL COMPOSITES S.A. (FRANCE),
HEXCEL FABRICS S.A. (FRANCE) AND CDSR
10. Miscellaneous overdraft lines FRF 100,000,000
Salver S.r.l. (Italy)
11. Miscellaneous credit lines ITL 3,500,000,000
HEXCEL (U.K.) LTD. AND HEXCEL COMPOSITES LTD. (U.K.) AND
HEXCEL COMPOSITES GMBH (GERMANY)
12. Miscellaneous credit lines GBP 5,000,000
HEXCEL COMPOSITES G.M.B.H (AUSTRIA)
13. Capital Lease between Hexcel Composites G.m.b.H. ATS 39,061,736
(Austria) and Raiffeisen Leasing Gesellschaft m.b.H.
maturing on 12/31/2012 for Pasching Austria building.
14. Loan by Osterreichische Investkredit ATS 2,857,100
Aktiengesellschaft for investment expenditures with
half year repayment Continuing until December 31, 1999.
15. Loan to fund Hexcel Composites G.m.b.H. (Austria) ATS 25,000,000
sales abroad. Revolving loan renewed every 6 months
by Creditanstalt Bankverein AG.
16. Miscellaneous overdraft lines ATS 31,500,000
HEXCEL COMPOSITES S.A. (Spain)
17. Miscellaneous overdraft lines ESP 150,000,000
SCHEDULE 11.3
LIENS
1. Mortgages and pledges of business set forth in Schedule 11.2 - Indebtedness
2. Liens in connection with the Capital Leases set forth in Schedule 11.2 -
Indebtedness
3. Liens in connection with the Existing Agreement.
4. Those liens listed on the attached Exhibit X related to UCC Financing
Statements, Fixture Filings and Operating Leases
5. Consigned inventory from Hexcel suppliers entered into in the ordinary
course
HEXCEL COMPOSITES GMBH (AUSTRIA)
7. As an assignment for security, Hexcel Composites Gmbh (Austria) pledged
public bonds of ATS 5,230,475 to Osterreichische investitionskredit A.G.
8. Assignment of ATS 30,000,000 of receivables, originally entered into on
July 3, 1995, to Creditanstalt Bankverein AG to support a loan for funding
a broad sales. Collateral based on rolling receivables.
EXHIBIT X
PERMITTED LIEN SCHEDULE
DEBTOR NAME SECURED PARTY JURISDICTION FILING FILING FILING COLLATERAL DESCRIPTION
TYPE NUMBER DATE
Hexcel ▇▇▇▇▇ Enterprises, Inc. Arizona - UCC-1 602574 8/8/89 Specified equipment
Corporation Secretary of
State
Hexcel International Computer Services, Inc. Arizona - UCC-1 632871 8/17/90 Specified equipment
Corporation Assignee: Circle Business Credit, Inc. Secretary of
State
Hexcel Assignee: International Computer Arizona - UCC-3 632871 4/22/94 Assignment to
Corporation Services, Inc. Secretary of Assign- International Computer
State ment Services Inc.
Hexcel International Computer Services, Inc. Arizona - UCC-1 675730 8/19/91 Specified equipment
Corporation Assignee: ▇▇▇▇▇▇ Financial Corp. Secretary of
State
Hexcel, Norwest Financial Leasing Arizona - UCC-1 717899 9/14/92 Specified equipment
Inc. Secretary of
State
Hexcel ▇▇▇▇▇▇▇▇ Grumman Corporation Arizona - UCC-1 815742 1/11/95 Specified equipment
Corporation Secretary of
State
Hexcel ▇▇▇▇▇▇▇▇ Grumman Corporation Arizona - UCC-1 815743 1/11/95 Specified equipment
Corporation Secretary of
State
Hexcel International Computer Services, Inc. Arizona - UCC-1 820433 2/21/95 Specified equipment
Corporation Secretary of
State
Hexcel Yale Financial Services, Inc. Arizona - UCC-1 828379 4/24/95 Specified equipment
Corporation Secretary of
State
2
DEBTOR NAME SECURED PARTY JURISDICTION FILING FILING FILING COLLATERAL DESCRIPTION
TYPE NUMBER DATE
Hexcel ▇▇▇▇▇▇-▇▇▇▇▇▇, Inc. Arizona - UCC-1 840349 7/27/95 Specified equipment
Corporation Assignee: Yale Financial Services, Secretary of
Inc. State
Hexcel ▇▇▇▇▇▇-▇▇▇▇▇▇, Inc. Arizona - UCC-1 841455 8/3/95 Specified equipment
Corporation Assignee: Yale Financial Services, Secretary of
Inc. State
Hexcel American Business Credit Corporation Arizona - UCC-1 863133 1/19/96 Specified equipment
Corporation Secretary of
State
Hexcel American Business Credit Corp. Arizona - UCC-1 890394 3/25/96 Specified equipment
Corporation Assignee: ABCC Secretary of
State
Hexcel ▇▇▇▇▇▇-Equipment Arizona - UCC-1 957939 3/3/97 Specified equipment
Corporation Assignee: Yale Financial Services, Secretary of
Inc. State
Hexcel International Computer Services, Inc. California - UCC-1 92264153 12/11/92 Specified equipment
Corporation Assignee: ▇▇▇▇▇▇ Financial Corp. Secretary of
State
Hexcel International Computer Services, Inc. California - UCC-1 92264154 12/11/92 Specified equipment
Corporation Assignee: ▇▇▇▇▇▇ Financial Corp. Secretary of
State
Hexcel International Computer Services, Inc. California - UCC-1 92264157 12/11/92 Specified equipment
Corporation Assignee: ▇▇▇▇▇▇ Financial Corp. Secretary of
State
Hexcel Assignee: Matrix Funding California - UCC-3 95320C0127 11/13/95 Assignment to Matrix
Corporation Secretary of Assign- Funding
State ment
Hexcel International Computer Services, Inc. California - UCC-1 92264159 12/11/92 Specified equipment
Corporation Assignee: ▇▇▇▇▇▇ Financial Corp. Secretary of
State
Hexcel International Computer Services, Inc. California - UCC-1 92264160 12/11/92 Specified equipment
Corporation Assignee: ▇▇▇▇▇▇ Financial Corp. Secretary of
State
3
DEBTOR NAME SECURED PARTY JURISDICTION FILING FILING FILING COLLATERAL DESCRIPTION
TYPE NUMBER DATE
Hexcel International Computer Services, Inc. California - UCC-1 93038853 2/24/93 Specified equipment
Corporation Secretary of
State
Hexcel ▇▇▇▇▇▇ Made Office Systems, Inc. California - UCC-1 93077820 4/19/93 Specified equipment
Corporation Secretary of
State
Hexcel Capital Associates International, Inc. California - UCC-1 93086671 4/29/93 Specified equipment
Corporation Assignee: Capital Preferred Yield Fund II Secretary of
State
Hexcel Capital Associates International Inc. California - UCC-1 93089733 5/3/93 Specified equipment
Corporation Assignee: Leasetec Income Fund V Secretary of
State
Hexcel Capital Associates International Inc. California - UCC-3 94356C0032 12/5/94 Amendment to Equipment
Corporation Assignee: Leasetec Income Fund V Secretary of Amend- Schedule
State ment
Hexcel United States Leasing International, California - UCC-1 93088336 5/5/93 Specified equipment
Corporation Inc. Secretary of
State
Hexcel United States Leasing International, California - UCC-1 93149849 7/28/93 Specified equipment
Corporation Inc. Secretary of
State
Hexcel International Computer Services, Inc. California - UCC-1 93161636 8/9/93 Specified equipment
Corporation Secretary of
State
Hexcel Assignee: Western Computer Leasing California - UCC-3 93161636 11/17/93 Assignment to Western
Corporation Secretary of Assign- Computer Leasing
State ment
Hexcel International Computer Services, Inc. California - UCC-1 93161637 8/9/93 Specified equipment
Corporation Secretary of
State
4
DEBTOR NAME SECURED PARTY JURISDICTION FILING FILING FILING COLLATERAL DESCRIPTION
TYPE NUMBER DATE
Hexcel Assignee: Western Computer Leasing. California - UCC-3 93161637 11/17/93 Assignment to Western
Corporation Secretary of Assign- Computer Leasing
State ment
Hexcel Ciba-Geigy Corporation. California - UCC-1 93218048 10/28/93 Inventory and all accounts
Corporation Secretary of receivable and other
State proceeds as they relate
to products sold or
consigned under Con-
signment Agreement
Hexcel Ciba-Geigy Corporation. California - UCC-1 93218049 10/28/93 Consigned goods under
Corporation Secretary of consignment Agreement
State
Hexcel Capital Associates International, Inc. California - UCC-1 93234554 11/18/93 Specified equipment
Corporation Secretary of
State
Hexcel Amoco Performance Products, Inc. California - UCC-1 94061175 3/28/94 Specified equipment
Corporation Secretary of
State
Hexcel International Computer Services, Inc. California - UCC-1 94161996 8/8/94 Specified equipment
Corporation Assignee: Matrix Funding Corporation Secretary of
State
Hexcel Assignee: ▇▇▇▇▇▇ Financial Inc. California - UCC-3 94263C0230 9/5/94 Assignment to ▇▇▇▇▇▇
Corporation Secretary of Assign- Financial, Inc.
State ment
Hexcel Assignee: Matrix Funding Corporation California - UCC-3 95320C0133 11/13/95 Assignment back to Matrix
Corporation Secretary of Assign- Funding Corporation
State ment
Hexcel Yale Financial Services, Inc. California - UCC-1 ▇▇▇▇▇▇▇▇▇▇ 4/24/95 Specified equipment
Corporation Secretary of
State
Hexcel ▇▇▇▇▇▇-▇▇▇▇▇▇, Inc. California - UCC-1 9521260952 7/27/95 Specified equipment
Corporation Assignee: Yale Financial Services, Secretary of
Inc. State
5
DEBTOR NAME SECURED PARTY JURISDICTION FILING FILING FILING COLLATERAL DESCRIPTION
TYPE NUMBER DATE
Hexcel ▇▇▇▇▇▇-▇▇▇▇▇▇, Inc. California - UCC-1 ▇▇▇▇▇▇▇▇▇▇ 8/7/95 Specified equipment
Corporation Assignee: Yale Financial Services, Secretary of
Inc. State
Hexcel Capital Associates International, Inc. California - UCC-1 9605460295 2/22/96 Specified equipment
Corporation Assignee: Capital Preferred Yield Secretary of
Fund-II, L.P. State
Hexcel Ciba-Geigy Corporation California - UCC-1 9607860538 3/15/96 Raw materials, inventory,
Corporation Secretary of work in process-finished
State products under Manufac-
turing and Supply Agree-
ment
Hexcel ▇▇▇▇▇▇ Made Office Systems, Inc. California - UCC-1 ▇▇▇▇▇▇▇▇▇▇ 5/28/96 Specified equipment
Corporation Secretary of
State
Hexcel Caterpillar Financial Services California - UCC-1 9631860942 11/12/96 Specified equipment
Corporation Corporation Secretary of
State
Hexcel ▇▇▇▇▇▇ Equipment California - UCC-1 ▇▇▇▇▇▇▇▇▇▇ 3/24/97 Specified equipment
Corporation Secretary of
State
Hexcel East Bay Clarklift, Inc. California - UCC-1 9715460364 5/29/97 Specified equipment
Corporation dba ▇▇▇▇▇▇ Equipment Secretary of
State
Hexcel ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ California- Judge- 948599-7 5/7/90 Dismissed with prejudice,
Corporation (Plaintiff) Alameda ment no damages awarded
County
Superior
Court
Hexcel As You Sow, a non-profit corporation California- Judge- 748827-2 7/26/95 Dismissed with prejudice,
Corporation Alameda ment maximum of $4,500.00
County awarded
Superior
Court
Hexcel Amoco Performance Products, Inc. Ohio - ▇▇▇-▇ ▇▇ ▇▇▇▇▇ 3/28/94 Specified Amoco inventory
Corporation Secretary of
State
6
DEBTOR NAME SECURED PARTY JURISDICTION FILING FILING FILING COLLATERAL DESCRIPTION
TYPE NUMBER DATE
Hexcel Amoco Performance Products, Inc. Ohio - UCC-1 55420 3/28/94 Specified Amoco inventory
Corporation Fairfield
County
Hexcel Meridian Leasing, Inc. Pennslyvania- UCC-1 22090328 7/7/93 Specified equipment
Corporation Secretary of
the
Commonwealth
Hexcel Meridian Leasing, Inc. Pennslyvania- UCC-1 22090329 7/7/93 Specified equipment
Corporation Secretary of
the
Commonwealth
Hexcel Keystone Financial Leasing Corp. Pennslyvania- UCC-1 25920639 10/4/96 Specified equipment
Corp. Secretary of
the
Commonwealth
Hexcel ▇▇▇▇▇▇▇▇ Grumman Corporation Pennslyvania- UCC-1 24170774 4/10/95 Specified equipment
Corporation Secretary of
the
Commonwealth
Hexcel Meridian Leasing, Inc. Pennslyvania- UCC-1 19737-39- 7/2/93 Specified equipment
Corporation Schuylkill 378-3
County
Hexcel Meridian Leasing, Inc. Pennslyvania- UCC-1 19738-39- 7/2/93 Specified equipment
Corporation Schuylkill 378-4
County
Hexcel International Computer Services, Inc. Pennslyvania- UCC-1 19941-39- 9/20/93 Specified equipment
Corporation Assignee: Western Computer Leasing Schuylkill 429-3
County
Hexcel Keystone Financial Leasing Corp. Pennslyvania- UCC-1 23268-41- 10/3/96 Specified equipment
Corp. Schuylkill 226-4
County
Hexcel Capital Associates International, Inc. Texas - UCC-1 119766 6/18/93 Specified equipment
Corporation Assignee: Capital Preferred Yield Fund Secretary of
II State
Hexcel United States Leasing International, Texas - UCC-1 144606 7/28/93 Specified equipment
Corporation Inc. Secretary of
State
7
DEBTOR NAME SECURED PARTY JURISDICTION FILING FILING FILING COLLATERAL DESCRIPTION
TYPE NUMBER DATE
Hexcel Capital Associates International, Inc. Texas - UCC-1 220866 11/17/93 Specified equipment
Corporation Secretary of
State
Hexcel Hercules Incorporated Texas - UCC-1 234431 12/10/93 All Hercules Incorporated
Corporation Secretary of consigned carbon fiber
State products
Hexcel Amoco Performance Products, Inc. Texas - UCC-1 057479 3/28/94 All Amoco carbon fiber
Corporation Secretary of products
State
Hexcel Southwest Lift, Inc. Texas - UCC-1 192130 9/30/94 Specified equipment
Corp. Assignee: Toyota Motor Credit Secretary of
Corporation State
Hexcel Southwest Lift, Inc. Texas - UCC-1 192131 9/30/94 Specified equipment
Corp. Assignee: Toyota Motor Credit Secretary of
Corporation State
Hexcel Southwest Lift, Inc. Texas - UCC-1 192132 9/30/94 Specified equipment
Corp. Assignee: Toyota Motor Credit Secretary of
Corporation State
Hexcel Southwest Lift, Inc. Texas - UCC-1 192133 9/30/94 Specified equipment
Corp. Assignee: Toyota Motor Credit Secretary of
Corporation State
Hexcel Southwest Lift, Inc. Texas - UCC-1 231919 12/1/94 Specified equipment
Corp. Assignee: Toyota Motor Credit Secretary of
Corporation State
Hexcel Southwest Lift, Inc. Texas - UCC-1 231920 12/1/94 Specified equipment
Corp. Assignee: Toyota Motor Credit Secretary of
Corporation State
Hexcel Capital Associates International, Inc. Texas - UCC-1 035244 2/26/96 Specified equipment
Corporation Assignee: Capital Preferred Yield Secretary of
Fund-II, L.P. State
8
DEBTOR NAME SECURED PARTY JURISDICTION FILING FILING FILING COLLATERAL DESCRIPTION
TYPE NUMBER DATE
Hexcel Southwest Lift, Inc. Texas - UCC-1 048826 3/12/96 Specified equipment
Corporation Assignee: Toyota Motor Credit Secretary of
Corporation State
Hexcel Clarklift of Washington/Alaska, Inc. Washington - UCC-1 ▇▇-▇▇▇-▇▇▇▇ 5/8/95 Specified equipment
Corporation Assignee: ▇▇▇▇▇▇ Credit Corporation Secretary of
State
Hexcel Caterpillar Financial Services Washington - UCC-1 ▇▇-▇▇▇-▇▇▇▇ 11/12/96 Specified equipment
Corporation Corporation Secretary of
State
Hexcel Quality Business Systems Washington - UCC-1 ▇▇-▇▇▇-▇▇▇▇ 5/27/97 Specified equipment
Corp. Secretary of
State
SCHEDULE 11.4
GUARANTY OBLIGATIONS
1. See Schedule 3.10, Existing Letters of Credit
DESCRIPTION OUTSTANDING
----------- -----------
HEXCEL CORPORATION
2. Guaranty of remaining payments under two GBP 197,929
operating leases between Hexcel U.K. Ltd.
and Raychem Ltd. both expiring on
12/31/98.
3. Effective 7/15/97, Hexcel Corporation ITL 3,050,000,000
provided patronage letters to: (1) Banco
di Napoli, LIR 500,000,000, (2) Rola
Banca, LIR 950,000,000, (3) Credito
Italiano, LIR 1,300,000,000, (4) Banca
Commerciale Italiano, LIR 300,000,000 all
to expire 7/15/98.
4. Pursuant to the Parent Company Agreement
made April 17, 1990 (the "Parent Company
Agreement"), Hexcel Corporation ("Hexcel")
and Dainippon Ink & Chemicals, Inc.
("DIC") agreed to form a joint venture in
order to develop, manufacture and sell
certain products. In furtherance of this
end and pursuant to the Parent Company
Agreement, Hexcel's wholly owned
subsidiary, Hexcel Technologies, Inc.
("HEXTI"), and DIC's wholly-owned
subsidiary, DIC Technologies Inc.
("DICTI"), entered into the Participants'
Agreement made September 14, 1990 (the
AParticipants' Agreement") whereby HEXTI
and DICTI formed HDP as a California
partnership under a certain General
Partnership Agreement of HEXCEL-DIC
Partnership entered into as of September
14, 1990 (the "Partnership Agreement").
Pursuant to the Participants' Agreement,
HEXTI and DICTI caused HDP to form DIC-
Hexcel , Ltd., a Japanese corporation
("OPCO") as a wholly owned subsidiary of
HDP under the laws of Japan.
Hexcel and DIC have agreed to each make
$3,250,000 of capital contributions to
DIC-Hexcel Ltd. during 1997-1998. As of
the date hereof, a final payment of
$500,000 each remains to be paid in July
1998.
Hexcel has a contingent liability of $4.5
million that is to be paid by Hexcel
either upon the liquidation of DIC-Hexcel
Ltd. or following DIC making any payment
upon the call of the bank guarantees DIC
has made supporting bank loans that have
been provided to DIC-Hexcel Ltd. In the
latter case, Hexcel shall have to
contribute 50% of any amount paid by DIC
under such guarantees, up to a maximum of
$4.5 million.
1
DESCRIPTION OUTSTANDING
----------- -----------
5. Guaranty in favor of Wimpey Pension USD 128,000
Trustees, Ltd. for one year of rental
payments of the sublessee located in
Lightwater, England under an operating
lease dated 7/22/74 and due to expire on
7/21/98.
6. Guaranty by Hexcel of Lease dated August GBP 22,950
15, 1974 between ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇
Industries Limited, covering annual lease
payments
7. Guaranty with respect to Hexcel Lodi USD 4,000,000
facility in New Jersey
SURETY BONDS
8. Bond securing 12 months of lease payments USD 30,000
for the benefit of the Port of Skagit, WA,
Bond#5686352, Expires 3/13/98
9. Bond securing the State of Arizona workers USD 288,375
compensation benefits due to employees in
favor of the State of Arizona, Bond#
5214167, Expires 4/15/98
10. Bond securing duties, taxes and charges USD 200,000
due on imported merchandise in favor of
U.S. Customs, Bond# 5288974, Expires
10/18/98
11. Bond securing duties, taxes and charges on USD250,000*
imports that are exported in favor of U.S.
Customs, Bond#5288976, Expires 10/18/98
12. Bond securing the State of Washington USD576,000**
worker's compensation benefits (due
employees) in favor such state,
Bond#5852114, Expires 2/28/99
13. Bond securing State of California USD 54,200
disability plan benefits due to employees
in favor of the State of California
Employment Development Department, Bond#
5288984, Expires 1/1/99
14. Bond securing a lost cashiers check and USD 653,853
legal fees in favor of First Interstate
Bank, Bond# ▇▇▇▇▇▇▇, Expires 11/12/99
15. Bond securing utility guarantee in USD 65,000
Decatur, AL, Bond#5864791, Expires 6/25/98
-----------------------
* Will be increased from $130,000 to $250,000 in March 1998 for increased
export activity.
** Subject to change depending on self-insurer security requirements.
3
HEXCEL COMPOSITES S.A. (BELGIUM)
16. Guarantees issued by Credit Lyonnais various currencies
Belgium S.A. to guarantee obligations of
Hexcel Composites S.A. (Belgium) vis-a-vis
▇▇ ▇▇▇▇▇▇▇▇ (FRF 114,227), Baudet (FRF
86,263), and GEC Alsthom (BEF 12,540,000).
17. Rental Bank guarantee BEF 135,000
SALVER S.R.L. (ITALY)
18. Declaration of Fidejussor from LA.ME.S. ITL 835,000,000
S.r.l.. signed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in
favor Fime Leasing S.P.A., in the Interest
of Centro Trattamenti Superficiali S.p.a.,
Naples, as Guaranty for Leasing contract
dated June 28, 1989. As with the
guaranty, the Same 17 guarantors have
guaranteed the lease payments of C.T.S. As
lessee of a warehouse facility. Salver
S.r.l. (Italy) is responsible To guaranty
repayment of up to 7% of the loan then
outstanding.
19. Declaration of Fidujussor from LA. ME.S. ITL 195,000,000
S.r.l. signed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in
favor of Fime Leasing S.p.a., in the
Interest Of Centro Trattamenti
Superficiali S.p.a., Naples, as guaranty
for leasing contract dated June 28, 1989.
Guaranty arrangement relating to a
warehouse facility.
20. Declaration of Fidejussor from Credito ITL 5,000,000
Italiano Bank, No. 935 in favor of
SNAM S.p.a. dated 2/23/95
HEXCEL FABRICS S.A. (FRANCE)
21. Guarantee in favor of Credit Lyonnais FRF 2,200,000
(expect cancellation 6/98)
HEXCEL COMPOSITES GMBH (AUSTRIA)
22. As an assignment for security, Hexcel ATS 5,230,475
Composites GmbH (Austria) pledged bonds to
Osterreichische Investition
Aktiengesellschaft. Repayment started on
12/31/96 semiannually until 12/31/99.
23. Assignment of receivables, originally ATS 30,000,000
entered into on July 3, 1995 to
Creditanstalt Bankverein
Aktiengesellschaft to support an export
credit program, payments thereon are due
semiannually; collateral based on rolling
6 months receivables.
24. ▇▇▇▇ of exchange with various customers. ATS 25,000,000
4
HEXCEL COMPOSITES LTD. (U.K.)
25. Bond issued by Banque Nationale de Paris GBP 200,000
securing import duties in favor of HM
Customs and Excise.
HEXCEL COMPOSITES S.A. (SPAIN)
26. Generale Bank issued guaranties on behalf ESP 311,000,000
of Hexcel Composite S.A. (Spain) for the
payment of duties and VAT before customs
on goods imported by Hexcel Composites
S.A. (Spain)
SCHEDULE 11.9
PERMITTED TRANSACTIONS WITH AFFILIATES
See also Schedule 11.2, Indebtedness
DESCRIPTION
NONE
SCHEDULE 11.14
PERMITTED PAYMENTS OF INDEBTEDNESS
DESCRIPTION
1. Subordinated Ciba Notes B The Increasing Rate Senior Subordinated Notes,
due 2003, to be issued by the Company in an aggregate principal amount not
to exceed $43,000,000 (as such amount may be adjusted in accordance with
the Strategic Alliance Agreement) and governed by the terms of the
Subordinated Ciba Notes Indenture.
2. All payments of any intercompany debt, as referenced on Indebtedness
Schedule 11.2.
3. All payments required under amortizing debt (capital leases and mortgages),
as referenced on Indebtedness Schedule 11.2.
Page 1
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
[NAME OF BORROWER]
U.S. $________________ ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
For value received, the undersigned, ________________, a
_____________ [corporation] [company] (the "Borrower"), promises to pay to
the order of ____________________ (the "Lender"), on the Termination Date (as
defined in the Credit Agreement referred to below), the lesser of (i) the
principal amount of ______________________________ DOLLARS ($_____________)
or (ii) the unpaid principal amount of all amounts loaned by the Lender to
the Borrower under this Note as Revolving Credit Loans under the Credit
Agreement. The principal amount which can be borrowed under this Note, when
aggregated with the principal amount which can be borrowed under all other
Notes issued in accordance with the terms of the Credit Agreement, will in no
case exceed the Aggregate Revolving Credit Commitment set forth in the Credit
Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount borrowed hereunder from the date advanced until paid at the rates
(which shall not exceed the maximum rate permitted by applicable law) and at
the times determined in accordance with the provisions of that certain
Amended and Restated Credit Agreement dated as of March 5, 1998 among Hexcel
Corporation, the Foreign Borrowers named therein, the financial institutions
from time to time parties thereto as Lenders, the Collateral Agent and Credit
Suisse First Boston in its capacity as administrative agent for the Lenders
(in such capacity, the "Administrative Agent") (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement").
This Note is issued pursuant to, and is entitled to the benefits
of, the Credit Agreement to which reference is hereby made for a more
complete statement of the terms and conditions under which the Revolving
Credit Loans evidenced hereby are made and are to be repaid. Terms defined
in the Credit Agreement and not otherwise defined herein are used herein with
the meanings so defined.
All payments of principal and interest in respect of this Note shall
be made on the date and at the place due, to the Administrative Agent in
lawful money of the United States of America in same day funds.
This Note shall be governed by, and shall be construed and enforced
in accordance with, the law of the State of New York.
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The Lender shall record in accordance with its usual practice the
date and amount of each Revolving Credit Loan made hereunder, and the date
and amount of each payment of principal; PROVIDED, that the failure to record
any such amount shall not limit or otherwise affect the obligation of the
Borrower to repay the Lender the outstanding principal amount evidenced by
this Note together with accrued interest thereon in accordance with the terms
of the Credit Agreement.
Upon the occurrence of an Event of Default set forth in SECTION
12(a) or (f) of the Credit Agreement as applied to any Borrower (as defined
in the Credit Agreement), the unpaid balance of the principal amount of this
Note may become, and upon the occurrence and continuation of any one or more
other Events of Default, such unpaid balance may be declared to be, due and
payable in the manner, upon the conditions and with the effect provided in
the Credit Agreement.
The Borrower hereby waives diligence, presentment, protest, demand
and notice of every kind except as required pursuant to the Credit Agreement.
This Note is secured by certain of the Credit Documents, and
reference is made to such Credit Documents for the terms and conditions
governing the collateral security for the Obligations of the Borrower
hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
HEXCEL CORPORATION
By_____________________
Name:
Title:
EXHIBIT B
FORM OF SWING LINE LOAN NOTE
HEXCEL CORPORATION
US $__________ March [__], ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
For value received, the undersigned, HEXCEL CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of Credit Suisse
First Boston (the "Swing Line Lender"), in accordance with SECTION 7.1 of the
Credit Agreement, upon the earlier of (A) demand by the Swing Line Loan
Lender and (B) the Termination Date (as defined in the Credit Agreement
referred to below), the lesser of (i) the principal amount of ___________
DOLLARS (US $__________) or (ii) the unpaid principal amount of all amounts
loaned by the Swing Line Lender to the Borrower under this Note as Swing Line
Loans under the Credit Agreement. The principal amount which can be borrowed
under this Note, when aggregated with the principal amount which can be
borrowed under all other Notes issued in accordance with the terms of the
Credit Agreement, will in no case exceed the Aggregate Revolving Credit
Commitment set forth in the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount borrowed hereunder from the date advanced until paid at the rates
(which shall not exceed the maximum rate permitted by applicable law) and at
the times determined in accordance with the provisions of that certain
Amended and Restated Credit Agreement dated as of March 5, 1998 among the
Borrower, the Foreign Borrowers from time to time parties thereto, the
financial institutions from time to time parties thereto as Lenders, the
Collateral Agent and Credit Suisse First Boston, in its capacity as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") (as amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement").
This Note is issued pursuant to, and is entitled to the benefits
of, the Credit Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the Swing Line
Loans evidenced hereby are made and are to be repaid. Terms defined in the
Credit Agreement and not otherwise defined herein are used herein with the
meanings so defined.
All payments of principal and interest in respect of this Note
shall be made on the date and at the place due, to the Administrative Agent
in lawful money of the United States of America in same day funds in
accordance with the Credit Agreement.
This Note may be prepaid at any time at the option of the Borrower
without premium or penalty, and must be prepaid as provided in SECTION 7.5 of
the Credit Agreement.
This Note shall be governed by, and shall be construed and enforced
in accordance with, the law of the State of New York.
Upon the occurrence of an Event of Default set forth in SECTION
12(a) or (f) of the Credit Agreement as applied to any Borrower (as defined
in the Credit Agreement), the unpaid balance of the principal amount of this
Note may become, and upon the occurrence and continuation of any one or more
of certain other Events of Default, such unpaid balance may be declared to
be, due and payable in the manner, upon the conditions and with the effect
provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, protest, demand
and notice of every kind except as required pursuant to the Credit Agreement.
This Note is secured by certain of the Credit Documents, and
reference is made to such Loan
2
Documents for the terms and conditions governing the collateral security for
the Obligations of the Borrower hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
HEXCEL CORPORATION
By_________________________
Name:
Title:
EXHIBIT C-1
FORM OF COMPANY GUARANTY
This AMENDED AND RESTATED GUARANTY ("Guaranty") is made as 5th day
March 1998, by HEXCEL CORPORATION, a Delaware corporation (the "Guarantor")
in favor of CITIBANK, N.A., in its capacity as collateral agent (with its
successors and permitted assigns in such capacity, the "Collateral Agent")
for the Lenders from time to time parties, to (and as defined in) the Credit
Agreement described below. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings ascribed thereto
in the Credit Agreement.
W I T N E S S E T H
WHEREAS, the Lenders have agreed to make extensions of credit from time
to time to, the Guarantor and the Foreign Borrowers pursuant to the Credit
Agreement, dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Guarantor, the
Foreign Borrowers from time to time parties thereto, the Lenders, the
Collateral Agent, the Syndication Agent and CSFB, as administrative agent (in
such capacity, the "Administrative Agent"; together with the Collateral Agent
and the Syndication Agent, the "Agents");
WHEREAS, each of the Foreign Borrowers, directly or indirectly, is a
Wholly-owned Subsidiary of the Guarantor;
WHEREAS, the Guarantor will directly and indirectly benefit from the
loans and other financial accommodations made to the Foreign Borrowers
pursuant to the Credit Agreement;
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their extensions of credit under the Credit Agreement that the Guarantor
execute and deliver to the Collateral Agent this Guaranty;
WHEREAS, the Guarantor is a party to the Company Guaranty, dated as of
June 27, 1996 (as amended, supplemented or otherwise modified from time to
time, the "EXISTING GUARANTY AGREEMENT"), with the Collateral Agent; and
Whereas, the Collateral Agent has requested the Existing Guaranty
Agreement to be amended as more fully described herein; and
WHEREAS, each of the parties to the Existing Agreement is agreeable to
the requested amendments, but only upon the terms and subject to the
conditions set forth herein, and each of the parties to the Existing Guaranty
Agreement, for convenience of reference, has agreed to restate the Existing
Guaranty Agreement as so amended; and
WHEREAS, each of the parties hereto are agreeable to the terms and
provisions of the Existing Guaranty Agreement as amended and restated hereby;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties to the Existing Guaranty Agreement agree that
the Existing Guaranty Agreement shall be and hereby is amended and restated
in its entirety and the parties hereto hereby agree as follows:
1. GUARANTY. (i) The Guarantor hereby irrevocably and
unconditionally guarantees to the Collateral Agent, for the benefit of the
Agents and the Lenders, the full and prompt payment when due (whether at
maturity or earlier, by reason of acceleration or otherwise, and at all times
thereafter) of the Obligations of the
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Foreign Borrowers (including, without limitation, interest accruing following
the commencement of any insolvency or bankruptcy case or proceeding or other
similar case or proceeding in respect of any Foreign Borrower, at the
applicable rate specified in the Credit Agreement, whether or not such
interest is allowed as a claim in such case or proceeding) (the "Guaranteed
Obligations").
(ii) At any time after the occurrence and during the continuation
of an Event of Default set forth in SECTION 12(a) of the Credit Agreement,
the Guarantor shall pay to the Collateral Agent, for the benefit of the
Agents and the Lenders, on demand and in immediately available funds, the
amount of the Guaranteed Obligations that is due and payable, and upon
acceleration, the full amount thereof. The Guarantor further agrees to pay
and reimburse the Agents and the Lenders for, on demand and in immediately
available funds, all reasonable fees, costs and expenses (including, without
limitation, all court costs and reasonable attorneys' fees, costs and
expenses) paid or incurred by the Agents or the Lenders in: (1) endeavoring
to collect all or any part of the Guaranteed Obligations from, or in
prosecuting any action in respect of the Guaranteed Obligations against, any
Foreign Borrower or the Guarantor; (2) taking any action with respect to any
security or collateral securing the Guaranteed Obligations or the Guarantor's
obligations hereunder; and (3) preserving, protecting or defending the
enforceability of, or enforcing, this Guaranty or the Collateral Agent's
rights hereunder (all such costs and expenses are hereinafter referred to as
the "Expenses"), and interest thereon. The Guarantor hereby agrees that this
Guaranty is an absolute guaranty of payment and is not a guaranty of
collection.
2. OBLIGATIONS UNCONDITIONAL. The Guarantor hereby agrees that
its obligations under this Guaranty shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance or subordination of any
of the Guaranteed Obligations or any of the Credit Documents;
(ii) the absence of any attempt by, or on behalf of, either Agent
or any of the Lenders to collect, or to take any other action to enforce, all
or any part of the Guaranteed Obligations whether from or against any Foreign
Borrower, the Guarantor or any other guarantor of the Guaranteed Obligations
or any other Person;
(iii) the election of any remedy by, or on behalf of, either Agent
or any of the Lenders with respect to all or any part of the Guaranteed
Obligations;
(iv) the waiver, consent, extension, forbearance or granting of any
indulgence by, or on behalf of, either Agent or any of the Lenders with
respect to any provision of any of the Credit Documents;
(v) the failure of either Agent or any of the Lenders to take any
steps to perfect and maintain its security interest in, or to preserve its
rights to, any security or collateral for the Guaranteed Obligations;
(vi) the election by, or on behalf of, either Agent or any of the
Lenders, in any proceeding instituted under Chapter 11 of Bankruptcy Code, of
the application of Section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by any Foreign
Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(viii) the disallowance, under Section 502 of the Bankruptcy Code,
of all or any portion of the claims against any Foreign Borrower of any of
the Lenders or either Agent for repayment of all or any part of the
Guaranteed Obligations or any Expenses; or
(ix) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Guarantor, any Foreign
Borrower or any other guarantor of the Obligations.
3. ENFORCEMENT; APPLICATION OF PAYMENTS. Subject to SECTION 1(ii)
hereof and the provisions of the Credit Agreement, upon the occurrence and
during the continuation of an Event of Default, the Collateral Agent may
proceed directly against the Guarantor to collect and recover the full
amount, or any portion, of the Guaranteed Obligations, without first
proceeding against any Foreign Borrower or any other Person, or against any
security or collateral for the Guaranteed Obligations. Subject only to the
terms and provisions of the Credit Agreement, the
3
Collateral Agent shall have the exclusive right to determine the application
of payments and credits, if any, from the Guarantor, any Foreign Borrower or
from any other Person on account of the Guaranteed Obligations or any other
liability of the Guarantor to either Agent or any of the Lenders.
4. WAIVERS. (i) The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
receivership or bankruptcy of any Foreign Borrower, protest or notice with
respect to the Guaranteed Obligations, all setoffs and counterclaims, demands
for performance, notices of nonperformance, notices of protest, notices of
dishonor and notices of acceptance of this Guaranty, and all other demands
whatsoever (and shall not require that the same be made on any Foreign
Borrower as a condition precedent to the Guarantor's obligations hereunder),
and covenants that this Guaranty will not be discharged, except by complete
payment (in cash) and performance of the Guaranteed Obligations and any other
obligations contained herein. The Guarantor further waives all notices of
the existence, creation or incurring of new or additional Indebtedness,
arising either from additional loans extended to any Foreign Borrower or
otherwise, and also waives all notices that the principal amount, or any
portion thereof, and/or any interest on any instrument or document evidencing
all or any part of the Guaranteed Obligations is due, notices of any and all
proceedings to collect from the maker, any endorser or any other guarantor of
all or any part of the Guaranteed Obligations, or from any other Person, and,
to the extent permitted by law, notices of exchange, sale, surrender or other
handling of any security or collateral given to the Administrative Agent or
any of the Lenders to secure payment of all or any part of the Guaranteed
Obligations.
(ii) The Agents and/or the Lenders are hereby authorized, without
notice or demand and without affecting the liability of the Guarantor
hereunder, from time to time, (a) to renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to, all or any part
of the Guaranteed Obligations, or to otherwise modify, amend or change the
terms of any of the Credit Documents; (b) to accept partial payments on all
or any part of the Guaranteed Obligations; (c) to take and hold security or
collateral for the payment of all or any part of the Guaranteed Obligations,
this Guaranty, or any other guaranties of all or any part of the Guaranteed
Obligations or other liabilities of the Foreign Borrowers, (d) to exchange,
enforce, waive and release any such security or collateral; (e) to apply such
security or collateral and direct the order or manner of sale thereof as in
its discretion it may determine; (f) to settle, release, exchange, enforce,
waive, compromise or collect or otherwise liquidate all or any part of the
Guaranteed Obligations, this Guaranty, any other guaranty of all or any part
of the Guaranteed Obligations, and any security or collateral for the
Guaranteed Obligations or for any such guaranty. Any of the foregoing may be
done in any manner, without affecting or impairing the obligations of the
Guarantor hereunder.
5. SETOFF. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), the
Lenders may, without notice to the Guarantor and regardless of the acceptance
of any security or collateral for the payment hereof, appropriate and apply
toward the payment of all or any part of the Guaranteed Obligations (i) any
Indebtedness due or to become due from the Lenders to the Guarantor, and (ii)
any moneys, credits or other property belonging to the Guarantor, at any time
held by or coming into the possession of the Lenders or their respective
affiliates.
6. FINANCIAL INFORMATION. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Foreign Borrowers and any and all other guarantors and/or endorsers of all or
any part of the Guaranteed Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations, or any
part thereof, that diligent inquiry would reveal, and the Guarantor hereby
agrees that the Agents and the Lenders shall have no duty to advise the
Guarantor of information known to it regarding such condition or any such
circumstances. In the event that the either Agent or any of the Lenders, in
its sole discretion, undertakes at any time or from time to time to provide
any such information to the Guarantor, then such Agent or such Lender shall
be under no obligation (i) to undertake any investigation not a part of its
regular business routine, (ii) to disclose any information which such Agent
or such Lender, pursuant to accepted or reasonable commercial finance or
banking practices, wishes to maintain confidential or (iii) to make any other
or future disclosures of such information or any other information to the
Guarantor.
7. NO MARSHALLING; REINSTATEMENT. The Guarantor consents and
agrees that none of the Agents or any of the Lenders or any Person acting for
or on behalf of the Collateral Agent shall be under any obligation to
▇▇▇▇▇▇▇▇ any assets in favor of the Guarantor or against or in payment of any
or all of the Guaranteed Obligations.
4
The Guarantor further agrees that, to the extent that any Foreign Borrower or
any other guarantor of all or any part of the Guaranteed Obligations makes a
payment or payments to the Agents or the Lenders or either Agent or any
Lender receives any proceeds of Collateral, which payment or payments or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to such Foreign
Borrower, such other guarantor or any other Person, or their respective
estates, trustees, receivers or any other party, including, without
limitation, the Guarantor, under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or
repayment, the part of the Guaranteed Obligations which has been paid,
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
8. SUBROGATION. Until the Guaranteed Obligations shall have been
paid in full, the Guarantor hereby agrees that it (i) shall not exercise any
right of subrogation with respect to such Guaranteed Obligations (under
contract, Section 509 of the Bankruptcy Code or otherwise) or any other right
of indemnity, reimbursement or contribution, (ii) waives any right to enforce
any remedy which either Agent, any of the Lenders now have or may hereafter
have against any Foreign Borrower, any endorser or any other guarantor of all
or any part of the Guaranteed Obligations or any other Person, and (iii)
waives any benefit of, and any right to participate in, any security or
collateral given to the Agents or the Lenders to secure the payment or
performance of all or any part of the Guaranteed Obligations or any other
liability of any Foreign Borrower to the Agents and the Lenders.
9. SUBORDINATION. The Guarantor agrees that any and all claims of
the Guarantor against any Foreign Borrower or any endorser or other guarantor
of all or any part of the Guaranteed Obligations, or against any of their
respective properties with respect to any Indebtedness of such Foreign
Borrower to the Guarantor (the "Borrower Indebtedness"), shall be
subordinated to the payment in full in cash of all Guaranteed Obligations.
Notwithstanding any right of the Guarantor to ask, demand, ▇▇▇ for, take or
receive any payment from any Foreign Borrower, all such rights and Liens of
the Guarantor with respect to the Borrower Indebtedness, whether now or
hereafter arising and howsoever existing shall be and hereby are subordinated
to the rights of the Agents and the Lenders to receive payment in full in
cash of the Guaranteed Obligations. So long as no Event of Default set forth
in SECTION 12(a) or (f) of the Credit Agreement shall have occurred and be
continuing, the Guarantor shall retain all its rights and shall be entitled
to receive and retain any and all payments made in respect of, the Borrower
Indebtedness. After an Event of Default set forth in SECTION 12(a) or (f) of
the Credit Agreement shall have occurred and be continuing, the Guarantor
shall not exercise any rights with respect to the Borrower Indebtedness or to
foreclose upon any asset securing the Borrower Indebtedness, whether by
judicial action or otherwise, unless and until all of the Guaranteed
Obligations shall have been fully paid in cash and all financing arrangements
pursuant to the Credit Agreement between the Foreign Borrowers and the
Lenders have been terminated. If all or any part of the assets of any
Foreign Borrower, or the proceeds thereof, are subject to any distribution,
division or application to the creditors of such Foreign Borrower, whether
partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the
benefit of creditors or any other action or proceeding, or if the business of
any Foreign Borrower is dissolved or if substantially all of the assets of
any Foreign Borrower are sold, then, and in any such event, any payment or
distribution of any kind or character, either in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any
Borrower Indebtedness shall be paid or delivered directly to the Lenders for
application to any of the Guaranteed Obligations, due or to become due, until
such Guaranteed Obligations shall have first been fully paid in cash and
satisfied. The Guarantor irrevocably authorizes and empowers each Agent and
each of the Lenders to demand, ▇▇▇ for, collect and receive every such
payment or distribution and give acquittance therefor and to make and present
for and on behalf of the Guarantor such proofs of claim and take such other
action, in the such Agent's or such Lender's own name or in the name of the
Guarantor or otherwise, as either or any Lender may deem necessary or
advisable for the enforcement of this Guaranty. Each Lender may vote such
proofs of claim in any such proceeding, receive and collect any and all
dividends or other payments or disbursements made thereon in whatever form
the same may be paid or issued and apply the same on account of any of the
Guaranteed Obligations. Should any payment, distribution, security or
instrument or proceeds thereof be received by the Guarantor upon or with
respect to the Borrower Indebtedness after an Event of Default set forth in
SECTION 12(a) or (f) of the Credit Agreement shall have occurred and is
continuing, and prior to the payment in full in cash of all Guaranteed
Obligations and the termination of all financing arrangements pursuant to the
Credit Agreement between the Foreign Borrowers and the Lenders, the Guarantor
shall receive and hold the same in trust, as trustee, for the benefit of the
Agents and the Lenders, and shall forthwith deliver the same to the
Collateral Agent, in precisely the form received (except for the endorsement
or assignment of the Guarantor where necessary), for application to any of
the Guaranteed Obligations, due or not due,
5
and, until so delivered, the same shall be held in trust by the Guarantor as
the property of the Collateral Agent for the benefit of the Agents and the
Lenders; PROVIDED, that if the Guarantor fails to make any such endorsement
or assignment to the Collateral Agent, the Collateral Agent (or any of its
officers or employees) is hereby irrevocably authorized to make the same.
The Guarantor agrees that after an Event of Default set forth in SECTION
12(a) or (f) of the Credit Agreement shall have occurred and is continuing,
and until the Guaranteed Obligations have been paid in full (in cash) and
satisfied and all financing arrangements pursuant to the Credit Agreement
between the Foreign Borrowers and the Lenders have been terminated, the
Guarantor will not assign or transfer to any Person any claim the Guarantor
has or may have against any Foreign Borrower.
10. ENFORCEMENT; AMENDMENTS; WAIVERS. No delay on the part of
either Agent or any of the Lenders in the exercise of any right or remedy
arising under this Guaranty, the Credit Agreement, any of the other Credit
Documents or otherwise with respect to all or any part of the Guaranteed
Obligations, the Collateral or any other guaranty of or security for all or
any part of the Guaranteed Obligations shall operate as a waiver thereof, and
no single or partial exercise by either Agent or any of the Lenders of any
such right or remedy shall preclude any further exercise thereof. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon either Agent or any of the Lenders, except as expressly set
forth in a writing duly signed and delivered by the Administrative Agent.
Failure by either Agent or any of the Lenders at any time or times hereafter
to require strict performance by any Foreign Borrower, any other guarantor of
all or any part of the Guaranteed Obligations or any other Person of any of
the provisions, warranties, terms and conditions contained in any of the
Credit Documents now or at any time or times hereafter executed by such
Persons and delivered to either Agent or any of the Lenders shall not waive,
affect or diminish any right of either Agent or any of the Lenders at any
time or times hereafter to demand strict performance thereof and such right
shall not be deemed to have been waived by any act or knowledge of either
Agent or any of the Lenders or its agents, officers or employees, unless such
waiver is contained in an instrument in writing, directed and delivered to
the Guarantor, specifying such waiver, and is signed by the Administrative
Agent. No waiver of any Event of Default by the Lenders shall operate as a
waiver of any other Event of Default or the same Event of Default on a future
occasion, and no action by either Agent or any of the Lenders permitted
hereunder shall in any way affect or impair either Agent's or any Lender's
rights and remedies or the obligations of the Guarantor under this Guaranty.
Any determination by a court of competent jurisdiction of the amount of any
principal and/or interest owing by any Foreign Borrower to the Agents and the
Lenders shall be conclusive and binding on the Guarantor irrespective of
whether the Guarantor was a party to the suit or action in which such
determination was made.
11. EFFECTIVENESS; TERMINATION. This Guaranty shall become
effective against the Guarantor upon its execution by the Guarantor and shall
continue in full force and effect and may not be terminated or otherwise
revoked until the Guaranteed Obligations (other than indemnities not yet due)
shall have been fully paid (in cash) and discharged and the Credit Agreement
and the Revolving Credit Commitments shall have been terminated. If,
notwithstanding the foregoing, the Guarantor shall have any right under
applicable law to terminate or revoke its obligations under this Guaranty,
the Guarantor agrees that such termination or revocation shall not be
effective until a written notice of such revocation or termination,
specifically referring hereto, signed by the Guarantor, is actually received
by each Agent and the Lenders. Such notice shall not affect the right and
power of the Agents or any of the Lenders to enforce rights arising prior to
receipt thereof by the Agents and the Lenders. If any of the Lenders grants
Loans or takes other action after the Guarantor terminates or revokes its
obligations under this Guaranty but before such Lender receives such written
notice, the rights of such Lender with respect thereto shall be the same as
if such termination or revocation had not occurred.
12. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon
the parties hereto and their respective successors and permitted assigns, and
shall inure to the benefit of the parties hereto and the successors and
permitted assigns of the Agents and the Lenders. The rights hereunder and
the interest herein of the Guarantor may not be assigned without the written
consent of the Required Lenders. Any attempted assignment without such
written consent shall be void. Nothing set forth herein or in any other
Credit Document is intended or shall be construed to give any other Person
any right, remedy or claim under, to or in respect of this Guaranty. The
Guarantor's successors shall include, without limitation, a receiver, trustee
or debtor-in-possession of or for the Guarantor.
13. GOVERNING LAW. This Guaranty shall be construed, and the
rights and duties of the parties hereto shall be determined, in accordance
with the law of the State of New York.
6
14. CERTAIN CONSENTS AND WAIVERS.
(a) PERSONAL JURISDICTION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, (i) EACH OF THE COLLATERAL AGENT AND THE GUARANTOR IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT SITTING IN NEW
YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS OF MATTERS
HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RELATED HERETO,
AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE COURT OR IN SUCH FEDERAL COURT. THE GUARANTOR
IRREVOCABLY DESIGNATES AND APPOINTS UNITED STATES CORPORATION SERVICES
COMPANY AT ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS ITS RESPECTIVE PROCESS
AGENT (THE "PROCESS AGENT") FOR SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT. EACH OF THE COLLATERAL AGENT AND THE
GUARANTOR AGREES THAT A FINAL NONAPPEALABLE 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. EACH OF THE
COLLATERAL AGENT AND THE GUARANTOR WAIVES IN ALL DISPUTES ANY OBJECTION THAT
IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE IN ANY SUCH
ACTION OR PROCEEDING IN SUCH STATE COURT OR IN SUCH FEDERAL COURT.
(ii) THE GUARANTOR AGREES THAT THE COLLATERAL AGENT SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE GUARANTOR OR ITS PROPERTY IN A COURT HAVING
JURISDICTION IN ANY LOCATION TO ENABLE THE AGENTS AND THE LENDERS TO REALIZE
ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE GUARANTEED OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY LENDER. THE GUARANTOR WAIVES ANY OBJECTION THAT
IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH EITHER AGENT OR ANY LENDER
MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) SERVICE OF PROCESS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW: THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
PROCESS AGENT OR THE GUARANTOR'S NOTICE ADDRESS SPECIFIED PURSUANT TO SECTION
16 HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING.
EACH OF THE COLLATERAL AGENT AND THE GUARANTOR IRREVOCABLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF THE COLLATERAL AGENT TO BRING PROCEEDINGS AGAINST THE
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE COLLATERAL AGENT AND THE
GUARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT.
15. WAIVER OF BOND. The Guarantor waives, to the extent permitted
by law, the posting of any bond otherwise required of the Collateral Agent in
connection with any judicial process or proceeding to realize on the
Collateral or any other security for the Guaranteed Obligations, to enforce
any judgment or other court order entered in favor of the Collateral Agent,
or to enforce by specific performance, temporary restraining order, or
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preliminary or permanent injunction, this Guaranty or any other agreement or
document between the Collateral Agent and the Guarantor.
16. NOTICES. All notices and other communications required or
desired to be served, given or delivered hereunder shall be in writing or by
a telecommunications device capable of creating a printed record and shall be
addressed to the party to be notified as follows:
if to the Guarantor, at:
Hexcel Corporation
Two Stamford Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Collateral Agent, at:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party, at such other address as designated by such party in a
written notice to the other party. All such notices and communications shall
be deemed to be validly served, given or delivered (i) ten (10) days
following deposit in the United States mails, with proper postage prepaid;
(ii) upon delivery thereof if delivered by hand to the party to be notified;
(iii) one Business Day after delivery thereof to a reputable overnight
courier service, with delivery charges prepaid; or (iv) upon confirmation of
receipt thereof if transmitted by a telecommunications device.
17. SEVERABILITY. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Guaranty.
18. COLLATERAL. The Guarantor hereby acknowledges and agrees that
its obligations under this Guaranty are secured pursuant to the terms and
provisions of the other Credit Documents to which it is a party.
19. ENTIRE AGREEMENT. This Guaranty, together with the other
Credit Documents, embodies the entire agreement and understanding of the
parties hereto with respect to the matters contained herein and supersedes
all prior agreements and understandings, written and oral, relating to the
subject matter hereof.
21. EXECUTION IN COUNTERPARTS. This Guaranty may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
8
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
Guarantor as of the day and year first set forth above.
HEXCEL CORPORATION
By________________________________
Name:
Title:
Acknowledged and agreed to
as of the __ day of March, 1998
CITIBANK, N.A., as Collateral Agent
By________________________________
Name:
Title:
EXHIBIT C-2
FORM OF COMPANY PLEDGE AGREEMENT
This AMENDED AND RESTATED PLEDGE AGREEMENT (as amended,
supplemented or otherwise modified from time to time, this "Pledge
Agreement"), dated as of March 5, 1998, by and between HEXCEL CORPORATION, a
Delaware corporation (with its successors and permitted assigns, the
"Pledgor"), and CITIBANK, N.A., in its separate capacity as collateral agent
(with its successors and permitted assigns in such capacity, the "Collateral
Agent") for the Lenders (as defined below) parties to the Credit "greement
described below. Terms defined in the Credit Agreement and not otherwise
defined herein are used herein with the meanings ascribed thereto in the
Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Lenders have agreed to make extensions of credit from
time to time to the Pledgor and the Foreign Borrowers pursuant to the Amended
and Restated Credit Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Pledgor, the Foreign Borrowers from time to time
parties thereto, the Lenders, the Collateral Agent and the CSFB, as
administrative agent (in such capacity, the "Administrative Agent", together
with the Collateral Agent, the "Agents");
WHEREAS, the Pledgor owns the shares of capital stock described in
EXHIBIT A hereto and issued by the issuers named therein; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their extensions of credit under the Credit Agreement that
the Pledgor execute and deliver to the Collateral Agent this Pledge
Agreement; and
WHEREAS, the Pledgor is a party to the pledge agreement, dated as
of June 27, 1996 (as amended, supplemented or otherwise modified from time to
time, the "EXISTING PLEDGE AGREEMENT"), with the Collateral Agent; and
Whereas, the Collateral Agent has requested the Existing Agreement
to be amended as more fully described herein; and
WHEREAS, each of the parties to the Existing Pledge Agreement is
agreeable to the requested amendments, but only upon the terms and subject to
the conditions set forth herein, and each of the parties to the Existing
Pledge Agreement, for convenience of reference, has agreed to restate the
Existing Pledge Agreement as so amended; and
WHEREAS, each of the parties hereto are agreeable to the terms and
provisions of the Existing Pledge Agreement as amended and restated hereby;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties to the Existing Pledge Agreement
agree that the Existing Pledge Agreement shall be and hereby is amended and
restated in its entirety and the parties hereto hereby agree as follows:
1. DEFINED TERMS.
(a) Unless otherwise defined herein, each capitalized term used
herein that is defined in the Credit Agreement shall have the meaning specified
for such term in the Credit Agreement. Unless otherwise defined herein, all
terms defined in Article 8 and Article 9 of the Uniform Commercial Code in
effect as of the date hereof
2
in the State of New York are used herein as defined therein.
(b) The words "hereby," "hereof," "herein" and "hereunder" and
words of like import when used in this Pledge Agreement shall refer to this
Pledge Agreement as a whole and not to any particular provision of this
Pledge Agreement, and section references are to this Pledge Agreement unless
otherwise specified.
(c) All terms defined in this Pledge Agreement in the singular
shall have comparable meanings when used in the plural, and VICE VERSA,
unless otherwise specified.
2. PLEDGE. The Pledgor hereby pledges to the Collateral Agent
(for the benefit of the Agents and the Lenders) and grants to the Collateral
Agent (for the benefit of the Agents and the Lenders) a security interest in
the following (collectively, the "Pledged Collateral"):
(a) All of the issued and outstanding capital stock of the issuers
described in EXHIBIT A hereto (including, without limitation, the shares
of such capital stock described in EXHIBIT A hereto), and the
certificates representing the shares of such capital stock, all options
and warrants for the purchase of shares of such capital stock (all of
said capital stock, options and warrants and all capital stock held in
the name of the Pledgor as a result of the exercise of such options or
warrants being hereinafter collectively referred to as the "Pledged
Stock"), and all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect
of, or in exchange for, any or all of the Pledged Stock;
(b) All additional shares of stock of any issuer of the Pledged
Stock from time to time acquired by the Pledgor in any manner, and all
of the shares of the capital stock issued to the Pledgor by any other
Subsidiary of the Pledgor after the date hereof that are required to be
pledged pursuant to the Credit Agreement, and the certificates
representing such additional shares (any such additional shares shall
constitute part of the Pledged Stock and the Collateral Agent is
irrevocably authorized, but is not required, to amend EXHIBIT A from
time to time to reflect such additional shares), and all options,
warrants, dividends, cash, instruments and other rights and options from
time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of such shares;
(c) The property and interests in property described in SECTION 4
below; and
(d) All proceeds of the foregoing.
The Pledgor hereby delivers to the Collateral Agent all of such Pledged
Collateral which is in existence on the date hereof, accompanied by
appropriate undated stock powers (the "Stock Powers") duly executed in blank.
3. SECURITY FOR OBLIGATIONS. The Pledged Collateral secures the
prompt payment, performance and observance of the Obligations (including,
without limitation, the Guaranteed Obligations under, and as defined in, the
Company Guaranty) of the Borrowers.
4. PLEDGED COLLATERAL ADJUSTMENTS. If, during the term of this
Pledge Agreement:
(a) any stock dividend, reclassification, readjustment or other
change is declared or made in the capital structure of any issuer of
Pledged Stock, or any option included within the Pledged Collateral is
exercised, or both, or
(b) any subscription warrants or any other rights or options shall
be issued in connection with the Pledged Collateral,
then all new, substituted and additional shares, warrants, rights, options,
notes or other securities, issued by reason of any of the foregoing, shall be
immediately delivered to and held by the Collateral Agent under the terms of
this Pledge Agreement and shall constitute Pledged Collateral hereunder;
PROVIDED, HOWEVER, that nothing contained in this SECTION 4 shall be deemed to
permit any stock dividend, issuance of additional stock, warrants, rights or
options, reclassification, readjustment or other change in the capital structure
of any issuer of Pledged Stock which is prohibited in the Credit Agreement.
3
5. SUBSEQUENT CHANGES AFFECTING PLEDGED COLLATERAL. The Pledgor
represents and warrants that it has made its own arrangements for keeping
informed of changes or potential changes affecting the Pledged Collateral
(including, but not limited to, rights to convert, rights to subscribe, payment
of dividends, reorganization or other exchanges, tender offers and voting
rights), and the Pledgor agrees that neither the Agents nor any of the Lenders
shall have any obligation to inform the Pledgor of any such changes or potential
changes or to take any action or omit to take any action with respect thereto.
The Collateral Agent may, upon the occurrence and during the continuation of an
Event of Default, without notice and at its option, transfer or register the
Pledged Collateral or any part thereof into its or its nominee's name with or
without any indication that such Pledged Collateral is subject to the security
interest hereunder. In addition, the Collateral Agent may at any time, after
the occurrence and during the continuation of an Event of Default, exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
6. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of all of the
issued and outstanding capital stock of each issuer listed on EXHIBIT A
hereto, free and clear of any Lien except for the security interest created
by this Pledge Agreement, and the Pledged Stock constitutes 100% of the
issued and outstanding shares of capital stock of the respective issuers
thereof set forth in EXHIBIT A hereto;
(b) There are no restrictions upon the voting rights associated with,
or upon the transfer of, any of the Pledged Collateral, other than (i)
pursuant to this Pledge Agreement and (ii) with regard to the shares of
Hexcel Pottsville Corporation, such restrictions as may exist under any
applicable Requirement of Law;
(c) The pledge of the Pledged Collateral pursuant to this Pledge
Agreement creates a valid and perfected first priority security interest in
the Pledged Collateral, in favor of the Collateral Agent, for the benefit
of the Agents and the Lenders, securing the payment and performance of the
Obligations of the Borrowers; and
(e) The Stock Powers are duly executed and give the Collateral Agent
the authority they purport to confer.
7. VOTING RIGHTS. During the term of this Pledge Agreement, and
except as provided in this SECTION 7 below, the Pledgor shall have the right to
vote the Pledged Stock on all corporate questions in a manner not inconsistent
with the terms of this Pledge Agreement, the Credit Agreement or any other
Credit Document. Upon the occurrence and during the continuation of an Event of
Default, the Collateral Agent may, at the Collateral Agent's option and
following written notice from the Collateral Agent to the Pledgor, exercise all
voting powers pertaining to the Pledged Collateral, including the right to take
action by shareholder consent.
8. DIVIDENDS AND OTHER DISTRIBUTIONS. (a) So long as no Event of
Default under SECTION 12(a) of the Credit Agreement shall have occurred and be
continuing:
(i) The Pledgor shall be entitled to receive and retain any and all
dividends and interest paid in respect of the Pledged Collateral, PROVIDED,
HOWEVER, that any and all
(A) dividends and interest paid or payable other than in cash with
respect to, and instruments and other property received, receivable or
otherwise distributed with respect to, or in exchange for, any of the
Pledged Collateral;
(B) dividends and other distributions paid or payable in cash with
respect to any of the Pledged Collateral on account of a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid in surplus; and
(C) cash paid, payable or otherwise distributed with respect to
principal of, or in redemption of, or in exchange for, any of the
Pledged Collateral;
4
shall be Pledged Collateral, and shall be forthwith delivered to the
Collateral Agent to hold, for the benefit of the Agents and the Lenders, as
Pledged Collateral and shall, if received by the Pledgor, be received in
trust for the Collateral Agent, for the benefit of the Agents and the
Lenders, be segregated from the other property or funds of the Pledgor, and
be delivered immediately to the Collateral Agent as Pledged Collateral in
the same form as so received (with any necessary endorsement); and
(ii) The Collateral Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the dividends or interest payments which
the Pledgor is authorized to receive and retain pursuant to CLAUSE (i)
above or exercise the voting rights in Section 7 above.
(b) Upon the occurrence and during the continuation of an Event of Default
set forth in SECTION 12(a) of the Credit Agreement:
(i) All rights of the Pledgor to receive the dividends and
interest payments which it would otherwise be authorized to receive and
retain pursuant to SECTION 8(a)(i) hereof shall cease, and all such rights
shall thereupon become vested in the Collateral Agent, for the benefit of
the Agents and the Lenders, which shall thereupon have the sole right to
receive and hold as Pledged Collateral such dividends and interest
payments;
(ii) All dividends and interest payments which are received by
the Pledgor contrary to the provisions of CLAUSE (i) of this SECTION 8(b)
shall be received in trust for the Collateral Agent, for the benefit of the
Agents and the Lenders, shall be segregated from other funds of the Pledgor
and shall be paid over immediately to the Collateral Agent as Pledged
Collateral in the same form as so received (with any necessary
endorsements); and
(iii) The Pledgor shall, upon the request of the Collateral Agent, at
Pledgor's expense, execute and deliver all such instruments and documents,
and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Collateral Agent, the Pledgor or its or
their counsel, advisable to register the applicable Pledged Collateral
under the provisions of the Securities Act, and to exercise its best
efforts to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the
Collateral Agent, the Pledgor or its or their counsel, are necessary or
advisable, all in conformity with the requirements of the Securities Act
and the rules and regulations of the Securities and Exchange Commission
applicable thereto;
(iv) The Pledgor shall, upon the request of the Collateral Agent, at
Pledgor's expense, use its best efforts to qualify the Pledged Collateral
under state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Pledged Collateral, as requested
by the Collateral Agent;
(v) The Pledgor shall, upon the request of the Collateral Agent,
at the Pledgor's expense, make available to the holders of its securities,
as soon as practicable, earnings statements which will satisfy the
provisions of Section 11(a) of the Securities Act; and
(vi) The Pledgor shall, upon the reasonable request of the
Collateral Agent, at the Pledgor's expense, do or cause to be done all such
other acts and things as may be necessary to make such sale of the Pledged
Collateral or any part thereof valid and binding and in compliance with
applicable law.
The Pledgor will reimburse the Collateral Agent for all reasonable expenses
incurred by the Collateral Agent, including, without limitation, reasonable
attorneys' and accountants' fees and expenses in connection with the foregoing.
Upon or at any time after the occurrence and during the continuation of an Event
of Default, if the Collateral Agent determines that, prior to any public
offering of any securities constituting part of the Pledged Collateral, such
securities should be registered under the Securities Act and/or registered or
qualified under any other federal or state law and such registration and/or
qualification is not practicable, then the Pledgor agrees that it will be
commercially reasonable if a private sale, upon at least ten (10) Business Days'
notice to the Pledgor, is
5
arranged so as to avoid a public offering, even though
the sales price established and/or obtained at such private sale may be
substantially less than prices which could have been obtained for such security
on any market or exchange or in any other public sale.
9. TRANSFERS AND OTHER LIENS. The Pledgor agrees that it will not
(i) sell or otherwise dispose of, or grant any option with respect to, any of
the Pledged Collateral without the prior written consent of the Collateral
Agent, other than in accordance with the Credit Agreement, or (ii) create or
permit to exist any Lien upon or with respect to any of the Pledged Collateral,
except for the security interest permitted hereunder and under the Credit
Agreement.
10. REMEDIES; APPLICATION OF PROCEEDS. (a) Subject to the
restrictions set forth in the Collateral Agency Agreement among Hexcel
Corporation and the Agents, the Collateral Agent shall have, in addition to any
other rights given under this Pledge Agreement or by law, all of the rights and
remedies with respect to the Pledged Collateral of a secured party under the
Uniform Commercial Code as in effect in the State of New York. In addition,
upon the occurrence and during the continuation of an Event of Default set forth
in SECTION 12(a) of the Credit Agreement or upon acceleration of the
Obligations, the Administrative Agent shall have such powers of sale and other
powers as may be conferred by applicable law. With respect to the Pledged
Collateral or any part thereof which shall then be in or shall thereafter come
into the possession or custody of the Collateral Agent or which the Collateral
Agent shall otherwise have the ability to transfer under applicable law, the
Collateral Agent may, in its sole discretion, without notice except as specified
below, after the occurrence and during the continuation of an Event of Default
set forth in SECTION 12(a) of the Credit Agreement or upon acceleration of the
Obligations of the Borrowers, sell or cause the same to be sold at any exchange,
broker's board or at public or private sale, in one or more sales or lots, at
such price as the Collateral Agent may deem best, for cash or on credit or for
future delivery, without assumption of any credit risk, and the purchaser of any
or all of the Pledged Collateral so sold shall thereafter own the same,
absolutely free from any claim, encumbrance or right of any kind whatsoever.
The Agents and any Lender may, in its own name, or in the name of a designee or
nominee, buy such Pledged Collateral at any public sale and, if permitted by
applicable law, buy such Pledged Collateral at any private sale. In the event
of a sale of any Collateral, or any part thereof, to a Lender or the Agents upon
the occurrence and during the continuation of an Event of Default set forth in
SECTION 12(a) of the Credit Agreement or upon acceleration of the Obligations,
such Lender or the Agents, as the case may be, shall not deduct or offset from
any part of the purchase price to be paid therefor any indebtedness owing to it
by the Pledgor. The Pledgor will pay to the Agents all reasonable expenses
(including, without limitation, court costs and reasonable attorneys' expenses)
of, or incidental to, the enforcement of any of the provisions hereof. The
Collateral Agent agrees to distribute any proceeds of the sale of the Pledged
Collateral in accordance with the Credit Agreement and the Pledgor shall remain
liable for any deficiency following the sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline speedily in
value or is or becomes of a type sold on a recognized market, the Collateral
Agent will give the Pledgor reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral
conducted in conformity with reasonable commercial practices of banks,
commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be commercially reasonable. Notwithstanding any provision to the
contrary contained herein, the Pledgor agrees that any requirements of
reasonable notice shall be met if such notice is received by the Pledgor as
provided in SECTION 20 below at least ten (10) Business Days before the time of
the sale or disposition; PROVIDED, HOWEVER, that the Collateral Agent may give
any shorter notice that is commercially reasonable under the circumstances. Any
other requirement of notice, demand or advertisement for sale is waived, to the
extent permitted by law.
(c) In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after the occurrence and during the continuation of
an Event of Default set forth in SECTION 12(a) of the Credit Agreement or upon
acceleration of the Obligations of the Borrowers, the Pledgor agrees that upon
the occurrence and during the continuation of an Event of Default, the
Collateral Agent may, from time to time, attempt to sell all or any part of the
Pledged Collateral by means of a private placement restricting the bidders and
prospective purchasers to those who are qualified and will represent and agree
that they are purchasing for investment only and not for distribution. In so
doing, the Collateral Agent may solicit offers to buy the Pledged Collateral, or
any part of it, from a limited number of investors deemed by the
6
Collateral Agent, in its reasonable judgment, to be financially responsible
parties who might be interested in purchasing the Pledged Collateral. If the
Collateral Agent solicits such offers from not less than four (4) such
investors, then the acceptance by the Collateral Agent of the highest offer
obtained therefrom shall be deemed to be a commercially reasonable method of
disposing of such Pledged Collateral; PROVIDED, HOWEVER, that this Section
does not impose a requirement that the Collateral Agent solicit offers from
four or more investors in order for the sale to be commercially reasonable.
11. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
appoints the Collateral Agent its attorney-in-fact, with full authority, in the
name of the Pledgor or otherwise, upon the occurrence and during the
continuation of an Event of Default, from time to time in the Collateral Agent's
sole discretion, to take any action and to execute any instrument which the
Collateral Agent may deem necessary or advisable to accomplish the purposes of
this Pledge Agreement, including, without limitation (subject to SECTION 8
hereof), to receive, endorse and collect all instruments made payable to the
Pledgor representing any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof and to give full discharge
for the same and to arrange for the transfer of all or any part of the Pledged
Collateral on the books of each of the issuers of such Pledged Stock or obligors
of such Pledged Stock to the name of the Administrative Agent or the Collateral
Agent's nominee.
12. WAIVERS. The Pledgor waives presentment and demand for payment
of any of the Obligations, protest and notice of dishonor or Event of Default
with respect to any of the Obligations and all other notices to which the
Pledgor might otherwise be entitled except as otherwise expressly provided
herein or in the Credit Agreement.
13. TERMINATION OF THIS SECURITY AGREEMENT; RELEASE OF COLLATERAL.
(a) The pledge made and the security interest granted by the Pledgor under this
Pledge Agreement shall terminate upon final payment in full in cash of the
Obligations and the termination of the Revolving Credit Commitments under the
Credit Agreement. Upon such termination (other than as a result of the sale of
the Pledged Collateral) and at the written request of the Pledgor or its
successors or assigns, and at the cost and expense of the Pledgor or its
successors or assigns, the Collateral Agent shall execute in a timely manner
such instruments, documents or agreements as are necessary or desirable to
terminate the Collateral Agent's security interest in the Pledged Collateral and
deliver the Pledged Stock and the Stock Powers, subject to any disposition made
by the Collateral Agent pursuant to the Pledge Agreement.
(b) Notwithstanding anything in this Pledge Agreement to the contrary, the
Pledgor may, to the extent permitted by the Credit Agreement, sell, assign,
transfer or otherwise dispose of any Pledged Collateral. In addition, the
Collateral shall be subject to release from time to time (with the Collateral
referred to in the immediately preceding sentence, the "Released Collateral") in
accordance with SECTION 14.2 of the Credit Agreement. The Liens under this
Pledge Agreement shall terminate with respect to the Released Collateral upon
such sale, transfer, assignment, disposition or release, and, upon the request
of the Pledgor, the Collateral Agent shall execute and deliver such instruments
or documents as may be necessary to release the Liens granted hereunder;
PROVIDED, HOWEVER, that (i) the Collateral Agent shall not be required to
execute any such documents on terms which, in the Collateral Agent's opinion,
would expose the Collateral Agent to liability or create any obligation or
entail any consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Obligations or any Liens on (or obligations of the Pledgor in respect
of) all interests retained by the Pledgor, including without limitation, the
proceeds of any sale, all of which shall continue to constitute part of the
Collateral unless and until applied strictly in accordance with the Credit
Documents.
14. SUCCESSORS AND ASSIGNS. This Pledge Agreement shall be binding
upon the parties hereto and their respective successors and permitted assigns,
and shall inure to the benefit of the parties hereto and the successors and
permitted assigns of the Agents and the Lenders. The rights hereunder and the
interest herein of the Pledgor may not be assigned without the written consent
of the Required Lenders. Any attempted assignment without such written consent
shall be void. Nothing set forth herein or in any other Credit Document is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of this Pledge Agreement or any Pledged
Collateral. The Pledgor's successors shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for the Pledgor.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND THE RIGHTS
AND DUTIES OF THE
7
PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK, EXCEPT FOR PERFECTION AND ENFORCEMENT OF SECURITY
INTERESTS AND LIENS IN OTHER JURISDICTIONS WHICH SHALL BE GOVERNED BY THE LAWS
OF THOSE JURISDICTIONS.
16. WAIVER OF BOND. The Pledgor waives, to the extent permitted by
law, the posting of any bond otherwise required of the Collateral Agent in
connection with any judicial process or proceeding to realize on the Pledged
Collateral or any other security for the Obligations, to enforce any judgment or
other court order entered in favor of the Collateral Agent, or to enforce by
specific performance, temporary restraining order, or preliminary or permanent
injunction, this Pledge Agreement or any other agreement or document between the
Collateral Agent and the Pledgor.
17. SEVERABILITY. Whenever possible, each provision of this Pledge
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Pledge Agreement shall be held to
be prohibited or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Pledge Agreement.
18. FURTHER ASSURANCES. The Pledgor agrees that it will cooperate
with the Collateral Agent and will execute and deliver, or cause to be executed
and delivered, all such other stock powers, proxies, instruments and documents,
and will take all such other actions, including, without limitation, the
execution and filing of financing statements, as the Collateral Agent may
reasonably request from time to time in order to carry out the provisions and
purposes of this Pledge Agreement.
19. THE COLLATERAL AGENT'S DUTY OF CARE. The Collateral Agent shall
not be liable for any acts, omissions, errors of judgment or mistakes of fact or
law including, without limitation, acts, omissions, errors or mistakes with
respect to the Pledged Collateral, except for those arising out of or in
connection with the Collateral Agent's (i) gross negligence or willful
misconduct as determined in a final nonappealable judgment by a court of
competent jurisdiction, or (ii) failure to use reasonable care with respect to
the safe custody of the Pledged Collateral in the Collateral Agent's
possession. Without limiting the generality of the foregoing, the Collateral
Agent shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any other parties but may do so at
its option. All expenses incurred in connection therewith shall be for the
sole account of the Pledgor, and shall constitute part of the Obligations
secured hereby.
20. NOTICES. All notices and other communications hereunder shall be
given in the manner and to the addresses set forth in SECTION 14.3 of the Credit
Agreement.
21. AMENDMENTS, WAIVERS AND CONSENTS. None of the terms or
provisions of this Pledge Agreement may be waived, altered, modified or amended,
and no consent to any departure by the Pledgor herefrom shall be effective,
except by or pursuant to an instrument in writing which (i) is duly executed by
the Pledgor and the Administrative Agent and (ii) is otherwise made in
accordance with the Credit Agreement. Any such waiver shall be valid only to
the extent set forth therein. A waiver by the Collateral Agent of any right or
remedy under this Pledge Agreement on any one occasion shall not be construed as
a waiver of any right or remedy which the Collateral Agent would otherwise have
on any future occasion. No failure to exercise or delay in exercising any
right, power or privilege under this Pledge Agreement on the part of the
Collateral Agent shall operate as a waiver thereof; and no single or partial
exercise of any right, power or privilege under this Pledge Agreement shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
22. SECTION TITLES. The section titles herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of the
provisions hereof.
23. EXECUTION IN COUNTERPARTS. This Pledge Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
8
24. ENTIRE AGREEMENT. This Agreement, together with the other Credit
Documents, embodies the entire agreement and understanding of the parties hereto
with respect to the matters contained herein and supersedes all prior agreements
and understandings, written and oral, relating to the subject matter hereof.
IN WITNESS WHEREOF, the Pledgor and the Collateral Agent have executed
this Pledge Agreement as of the date set forth above.
HEXCEL CORPORATION
By:________________________
Name:
Title:
CITIBANK, N.A., as Collateral Agent
By:_________________________
Name:
Title:
EXHIBIT A
to
PLEDGE AGREEMENT
PLEDGED STOCK
STOCK ISSUER Percentage of Stock Certificate Shares of Capital
Owned by Pledgor No. Stock Represented
Thereby
Hexcel Beta Corp. 100% 1 3,000
Hexcel International 100% 2 100
Hexcel Pottsville Corporation 100% 1 100
ACKNOWLEDGEMENT
The undersigned hereby acknowledge receipt of a copy of the foregoing
Pledge Agreement, waive any rights or requirement at any time hereafter to
receive a copy of such Pledge Agreement in connection with the registration of
any Pledged Collateral in the name of the Collateral Agent or its nominee or the
exercise of voting rights by the Collateral Agent and agree to comply with any
provision of such Pledge Agreement which is applicable to it.
HEXCEL BETA CORPORATION
HEXCEL INTERNATIONAL
HEXCEL POTTSVILLE CORPORATION
By:_________________________
Name:
Title:
EXHIBIT D-1
FORM OF SUBSIDIARY GUARANTY
This AMENDED AND RESTATED SUBSIDIARY GUARANTY (" Guaranty") is made as
of this 5th day March 1998, by each of the corporations signatory hereto (each
individually a AGuarantor", and collectively the "Guarantors"), in favor of
CITIBANK, N.A., in its capacity as collateral agent (with its successors and
permitted assigns in such capacity, the "Collateral Agent") for the Lenders from
time to time parties to (and as defined in) the Credit Agreement described
below. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings ascribed thereto in the Credit Agreement.
W I T N E S S E T H
WHEREAS, the Lenders have agreed to make extensions of credit from time to
time to the Company and the Foreign Borrowers pursuant to the Credit Agreement,
dated as of the date hereof (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Hexcel Corporation (the "Company"),
the Foreign Borrowers from time to time parties thereto, the Lenders, the
Collateral Agent, the Syndication Agent and CSFB, as administrative agent (in
such capacity, the "Administrative Agent"; together with the Collateral Agent
and the Syndication Agent, the "Agents");
WHEREAS, the Guarantors are direct Wholly-owned Subsidiaries of the
Company and will directly and indirectly benefit from the loans and other
financial accommodations made pursuant to the Credit Agreement to the Company
and the Foreign Borrowers;
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their extensions of credit under the Credit Agreement that each
Guarantor execute and deliver to the Collateral Agent this Guarantee;
WHEREAS, the Guarantors are party to the Subsidiary Guaranty, dated as of
June 27, 1996 (as amended, supplemented or otherwise modified from time to time,
the "EXISTING GUARANTY AGREEMENT"), with the Collateral Agent; and
Whereas, the Collateral Agent has requested the Existing Guaranty Agreement
to be amended as more fully described herein; and
WHEREAS, each of the parties to the Existing Agreement is agreeable to the
requested amendments, but only upon the terms and subject to the conditions set
forth herein, and each of the parties to the Existing Guaranty Agreement, for
convenience of reference, has agreed to restate the Existing Guaranty Agreement
as so amended; and
WHEREAS, each of the parties hereto are agreeable to the terms and
provisions of the Existing Guaranty Agreement as amended and restated hereby;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties to the Existing Guaranty Agreement agree that the
Existing Guaranty Agreement shall be and hereby is amended and restated in its
entirety and the parties hereto hereby agree as follows:
NOW THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. GUARANTY. (i) Each Guarantor jointly and severally hereby
irrevocably and unconditionally guarantees to the Collateral Agent, for the
benefit of the Agents and the Lenders, the full and prompt payment when due
(whether at maturity or earlier, by reason of acceleration or otherwise, and at
all times thereafter) of the Obligations including, without limitation, interest
accruing following the commencement of any insolvency or
2
bankruptcy case or proceeding or other similar case or proceeding in respect
of any Borrower, at the applicable rate specified in the Credit Agreement,
whether or not such interest is allowed as a claim in such case or proceeding
(the "Guaranteed Obligations").
(ii) At any time after the occurrence and during the continuation of
an Event of Default set forth in SECTION 12(A) of the Credit Agreement, each
Guarantor shall jointly and severally pay to the Collateral Agent, for the
benefit of the Agents and the Lenders, on demand and in immediately available
funds, the amount of the Guaranteed Obligations that is due and payable, and
upon acceleration, the full amount thereof. Each Guarantor further agrees to
jointly and severally pay and reimburse the Agents and the Lenders for, on
demand and in immediately available funds, all reasonable fees, costs and
expenses (including, without limitation, all court costs and reasonable
attorneys' fees, costs and expenses) paid or incurred by the Agents and the
Lenders in: (1) endeavoring to collect all or any part of the Guaranteed
Obligations from, or in prosecuting any action in respect of the Guaranteed
Obligations against, any Borrower or such Guarantor; (2) taking any action with
respect to any security or collateral securing the Guaranteed Obligations or
such Guarantor's obligations hereunder; and (3) preserving, protecting or
defending the enforceability of, or enforcing, this Guaranty or the Collateral
Agent's rights hereunder (all such costs and expenses are hereinafter referred
to as the "Expenses"), and interest thereon. Each Guarantor hereby agrees that
this Guaranty is an absolute guaranty of payment and is not a guaranty of
collection.
(iii) Notwithstanding anything contained in this Guaranty to the
contrary, the amount guaranteed by each Guarantor hereunder shall be limited
to an aggregate amount which is equal to the largest amount that would not be
subject to avoidance under Section 548 of Title 11 of the United States Code
(11 U.S.C. SECTIONS 101 ET SEQ.) (the "Bankruptcy Code") or any applicable
provisions of any comparable state law.
2. OBLIGATIONS UNCONDITIONAL. Each Guarantor hereby agrees that its
obligations under this Guaranty shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance or subordination of any of
the Guaranteed Obligations or any of the Credit Documents;
(ii) the absence of any attempt by, or on behalf of, either Agent or
any of the Lenders to collect, or to take any other action to enforce, all
or any part of the Guaranteed Obligations whether from or against any
Borrower, any Guarantor or other guarantor of the Guaranteed Obligations or
any other Person;
(iii) the election of any remedy by, or on behalf of, the either Agent
or any of the Lenders with respect to all or any part of the Guaranteed
Obligations;
(iv) the waiver, consent, extension, forbearance or granting of any
indulgence by, or on behalf of, the either Agent or any of the Lenders with
respect to any provision of any of the Credit Documents;
(v) the failure of the either Agent or any of the Lenders to take any
steps to perfect and maintain its security interest in, or to preserve its
rights to, any security or collateral for the Guaranteed Obligations;
(vi) the election by, or on behalf of, the either Agent or any of the
Lenders, in any proceeding instituted under Chapter 11 of Bankruptcy Code,
of the application of Section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by any Borrower,
as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(viii) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of the claims against any Borrower of any of the Lenders
or either Agent for repayment of all or any part of the Guaranteed
Obligations or any Expenses; or
(ix) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of any Borrower or any Guarantor.
3
3. ENFORCEMENT; APPLICATION OF PAYMENTS. Subject to SECTION 1(ii)
hereof and the provisions of the Credit Agreement, upon the occurrence and
during the continuation of an Event of Default, the Collateral Agent may proceed
directly against any Guarantor to collect and recover the full amount, or any
portion, of the Guaranteed Obligations, without first proceeding against any
Borrower or any other Person, or against any security or collateral for the
Guaranteed Obligations. Subject only to the terms and provisions of the Credit
Agreement, the Collateral Agent shall have the exclusive right to determine the
application of payments and credits, if any, from any Guarantor, any Borrower or
from any other Person on account of the Guaranteed Obligations or any other
liability of the Guarantors to the either Agent or any of the Lenders.
4. WAIVERS. (i) Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
receivership or bankruptcy of any Borrower, protest or notice with respect to
the Guaranteed Obligations, all setoffs and counterclaims, demands for
performance, notices of nonperformance, notices of protest, notices of dishonor
and notices of acceptance of this Guaranty, and all other demands whatsoever
(and shall not require that the same be made on any Borrower as a condition
precedent to such Guarantor's obligations hereunder), and covenants that this
Guaranty will not be discharged, except by complete payment (in cash) and
performance of the Guaranteed Obligations and any other obligations contained
herein. Each Guarantor further waives all notices of the existence, creation or
incurring of new or additional Indebtedness, arising either from additional
loans extended to any Borrower or otherwise, and also waives all notices that
the principal amount, or any portion thereof, and/or any interest on any
instrument or document evidencing all or any part of the Guaranteed Obligations
is due, notices of any and all proceedings to collect from the maker, any
endorser or any other guarantor of all or any part of the Guaranteed
Obligations, or from any other Person, and, to the extent permitted by law,
notices of exchange, sale, surrender or other handling of any security or
collateral given to either Agent or any of the Lenders to secure payment of all
or any part of the Guaranteed Obligations.
(ii) The Agents and/or the Lenders are hereby authorized, without
notice or demand and without affecting the liability of the Guarantors
hereunder, from time to time, (a) to renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to, all or any part of
the Guaranteed Obligations, or to otherwise modify, amend or change the terms of
any of the Credit Documents; (b) to accept partial payments on all or any part
of the Guaranteed Obligations; (c) to take and hold security or collateral for
the payment of all or any part of the Guaranteed Obligations, this Guaranty, or
any other guaranties of all or any part of the Guaranteed Obligations or other
liabilities of any of the Borrowers, (d) to exchange, enforce, waive and release
any such security or collateral; (e) to apply such security or collateral and
direct the order or manner of sale thereof as in its discretion it may
determine; (f) to settle, release, exchange, enforce, waive, compromise or
collect or otherwise liquidate all or any part of the Guaranteed Obligations,
this Guaranty, any other guaranty of all or any part of the Guaranteed
Obligations, and any security or collateral for the Guaranteed Obligations or
for any such guaranty. Any of the foregoing may be done in any manner, without
affecting or impairing the obligations of the Guarantors hereunder.
5. SETOFF. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), the
Lenders may, without notice to any Guarantor and regardless of the acceptance of
any security or collateral for the payment hereof, appropriate and apply toward
the payment of all or any part of the Guaranteed Obligations (i) any
Indebtedness due or to become due from the Lenders to such Guarantor, and
(ii) any moneys, credits or other property belonging to such Guarantor, at any
time held by or coming into the possession of the Lenders or their respective
affiliates.
6. FINANCIAL INFORMATION. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrowers and any and all other Guarantors and endorsers and/or other guarantors
of all or any part of the Guaranteed Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part
thereof, that diligent inquiry would reveal, and such Guarantor hereby agrees
that the Agents and the Lenders shall have no duty to advise any Guarantor of
information known to it regarding such condition or any such circumstances. In
the event that either Agent or any of the Lenders, in its sole discretion,
undertakes at any time or from time to time to provide any such information to
any Guarantor, then such Agent or such Lender shall be under no obligation
(i) to undertake any investigation not a part of its regular business routine,
(ii) to disclose any information which such Agent or such Lender, pursuant to
accepted or reasonable commercial finance or banking practices, wishes to
maintain confidential or (iii) to make any other or future disclosures of such
information or any other information to such Guarantor.
4
7. NO MARSHALLING; REINSTATEMENT. Each Guarantor consents and agrees
that none of the Agents any of the Lenders or any Person acting for or on behalf
of the Collateral Agent shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in
favor of any Guarantor or against or in payment of any or all of the Guaranteed
Obligations. Each Guarantor further agrees that, to the extent that any
Borrower, any Guarantor or any other guarantor of all or any part of the
Guaranteed Obligations makes a payment or payments to the Agents or the Lenders
or either Agent or any Lender receives any proceeds of Collateral, which payment
or payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to any
Borrower, any Guarantor, such other guarantor or any other Person, or their
respective estates, trustees, receivers or any other party, including, without
limitation, such Guarantor, under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or repayment,
the part of the Guaranteed Obligations which has been paid, reduced or satisfied
by such amount shall be reinstated and continued in full force and effect as of
the time immediately preceding such initial payment, reduction or satisfaction.
8. SUBROGATION. Until the Guaranteed Obligations shall have been
paid in full, each Guarantor hereby agrees that it (i) shall not exercise any
right of subrogation with respect to such Guaranteed Obligations (under
contract, SECTION 509 of the Bankruptcy Code or otherwise) or any other right of
indemnity, reimbursement or contribution, (ii) waives any right to enforce any
remedy which either Agent or any of the Lenders now have or may hereafter have
against any Borrower, any endorser or any other guarantor of all or any part of
the Guaranteed Obligations or any other Person, and (iii) waives any benefit of,
and any right to participate in, any security or collateral given to the Agents
and the Lenders to secure the payment or performance of all or any part of the
Guaranteed Obligations or any other liability of any Borrower to the Agents and
the Lenders.
9. SUBORDINATION. Each Guarantor agrees that any and all claims of
such Guarantor against any Borrower, any other Guarantor or any endorser or
other guarantor of all or any part of the Guaranteed Obligations, or against any
of their respective properties, with respect to any Indebtedness of such
Borrower to the Guarantor (the "Borrower Indebtedness"), shall be subordinated
to the payment in full in cash of all Guaranteed Obligations. Notwithstanding
any right of the Guarantor to ask, demand, ▇▇▇ for, take or receive any payment
from any Borrower, all such rights and Liens of the Guarantor with respect to
the Borrower Indebtedness, whether now or hereafter arising and howsoever
existing shall be and hereby are subordinated to the rights of the Agents and
the Lenders to receive payment in full in cash of the Guaranteed Obligations.
So long as no Event of Default set forth in SECTION 12(a) or (f) of the Credit
Agreement shall have occurred and is continuing, the Guarantor shall retain all
its rights and shall be entitled to receive and retain any and all payments made
in respect of, the Borrower Indebtedness. After an Event of Default set forth
in SECTION 12(a) or (f) of the Credit Agreement shall have occurred and is
continuing, the Guarantor shall not exercise any rights with respect to the
Borrower Indebtedness or to foreclose upon any asset securing the Borrower
Indebtedness, whether by judicial action or otherwise, unless and until all of
the Guaranteed Obligations shall have been fully paid in cash and all financing
arrangements pursuant to the Credit Agreement between the Borrowers and the
Lenders have been terminated. If all or any part of the assets of any Borrower,
or the proceeds thereof, are subject to any distribution, division or
application to the creditors of such Borrower, whether partial or complete,
voluntary or involuntary, and whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any other
action or proceeding, or if the business of any Borrower is dissolved or if
substantially all of the assets of any Borrower are sold, then, and in any such
event, any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon or with
respect to any Borrower Indebtedness shall be paid or delivered directly to the
Lenders for application to any of the Guaranteed Obligations, due or to become
due, until such Guaranteed Obligations shall have first been fully paid in cash
and satisfied. The Guarantor irrevocably authorizes and empowers each Agent and
each of the Lenders to demand, ▇▇▇ for, collect and receive every such payment
or distribution and give acquittance therefor and to make and present for and on
behalf of the Guarantor such proofs of claim and take such other action, in such
Agent's or such Lender's own name or in the name of the Guarantor or otherwise,
as either Agent or any Lender may deem necessary or advisable for the
enforcement of this Guaranty. Each Lender may vote such proofs of claim in any
such proceeding, receive and collect any and all dividends or other payments or
disbursements made thereon in whatever form the same may be paid or issued and
apply the same on account of any of the Guaranteed Obligations. Should any
payment, distribution, security or instrument or proceeds thereof be received by
the Guarantor upon or with respect to the Borrower Indebtedness after an Event
of Default set forth in SECTION 12(a) or (f) of the Credit Agreement shall have
occurred and is continuing, and prior to the payment in full in cash of all
Guaranteed Obligations and the termination of all financing arrangements
pursuant
5
to the Credit Agreement between the Borrowers and the Lenders, the Guarantor
shall receive and hold the same in trust, as trustee, for the benefit of the
Agents and the Lenders and shall forthwith deliver the same to the Collateral
Agent, in precisely the form received (except for the endorsement or
assignment of the Guarantor where necessary), for application to any of the
Guaranteed Obligations, due or not due, and, until so delivered, the same
shall be held in trust by the Guarantor as the property of the Collateral
Agent, for the benefit of the Agents and the Lenders; PROVIDED, that if the
Guarantor fails to make any such endorsement or assignment to the Collateral
Agent, the Collateral Agent (or any of its officers or employees) is hereby
irrevocably authorized to make the same. The Guarantor agrees that after an
Event of Default set forth in SECTION 12(a) or (f) of the Credit Agreement
shall have occurred and is continuing, and until the Guaranteed Obligations
have been paid in full (in cash) and satisfied and all financing arrangements
pursuant to the Credit Agreement between the Borrowers and the Lenders have
been terminated, the Guarantor will not assign or transfer to any Person any
claim the Guarantor has or may have against any Borrower.
10. ENFORCEMENT; AMENDMENTS; WAIVERS. No delay on the part of either
Agent or any of the Lenders in the exercise of any right or remedy arising under
this Guaranty, the Credit Agreement, any of the other Credit Documents or
otherwise with respect to all or any part of the Guaranteed Obligations, the
Collateral or any other guaranty of or security for all or any part of the
Guaranteed Obligations shall operate as a waiver thereof, and no single or
partial exercise by either Agent or any of the Lenders of any such right or
remedy shall preclude any further exercise thereof. No modification or waiver
of any of the provisions of this Guaranty shall be binding upon either Agent or
any of the Lenders, except as expressly set forth in a writing duly signed and
delivered by the Administrative Agent. Failure by either Agent or any of the
Lenders at any time or times hereafter to require strict performance by any
Borrower, any Guarantor, any other guarantor of all or any part of the
Guaranteed Obligations or any other Person of any of the provisions, warranties,
terms and conditions contained in any of the Credit Documents now or at any time
or times hereafter executed by such Persons and delivered to either Agent or any
of the Lenders shall not waive, affect or diminish any right of either Agent or
any of the Lenders at any time or times hereafter to demand strict performance
thereof and such right shall not be deemed to have been waived by any act or
knowledge of either Agent or any of the Lenders, or its agents, officers or
employees, unless such waiver is contained in an instrument in writing, directed
and delivered to the Borrowers or the Guarantors, as applicable, specifying such
waiver, and is signed by either Agent. No waiver of any Event of Default by the
Lenders shall operate as a waiver of any other Event of Default or the same
Event of Default on a future occasion, and no action by either Agent or any of
the Lenders permitted hereunder shall in any way affect or impair either Agent's
or any Lender's rights and remedies or the obligations of the Guarantors under
this Guaranty. Any determination by a court of competent jurisdiction of the
amount of any principal and/or interest owing by any Borrower to either Agents
and the Lenders shall be conclusive and binding on each Guarantor irrespective
of whether such Guarantor was a party to the suit or action in which such
determination was made.
11. EFFECTIVENESS; TERMINATION. This Guaranty shall become effective
against any Guarantor upon its execution by such Guarantor and shall continue in
full force and effect and may not be terminated or otherwise revoked until the
Guaranteed Obligations (other than indemnities not yet due) shall have been
fully paid (in cash) and discharged and the Credit Agreement and the Revolving
Credit Commitments shall have been terminated. If, notwithstanding the
foregoing, any Guarantor shall have any right under applicable law to terminate
or revoke its obligations under this Guaranty, such Guarantor agrees that such
termination or revocation shall not be effective until a written notice of such
revocation or termination, specifically referring hereto, signed by such
Guarantor, is actually received by each Agent. Such notice shall not affect the
right and power of the Agents or any of the Lenders to enforce rights arising
prior to receipt thereof by the Agents and the Lenders. If any of the Lenders
grants loans or takes other action after such Guarantor terminates or revokes
its obligations under this Guaranty but before such Lender receives such written
notice, the rights of such Lender with respect thereto shall be the same as if
such termination or revocation had not occurred.
12. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
parties hereto and their respective successors and permitted assigns, and shall
inure to the benefit of the parties hereto and the successors and permitted
assigns of the Agents and the Lenders. The rights hereunder and the interest
herein of each Guarantor may not be assigned without the written consent of the
Required Lenders. Any attempted assignment without such written consent shall
be void. Nothing set forth herein or in any other Credit Document is intended
or shall be construed to give any other Person any right, remedy or claim under,
to or in respect of this Guaranty. Each Guarantor's successors shall include,
without limitation, a receiver, trustee or debtor-in-possession of or for such
Guarantor.
6
13. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED AND THE RIGHTS
AND DUTIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
14. CERTAIN CONSENTS AND WAIVERS.
(a) PERSONAL JURISDICTION. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, (i) EACH OF THE COLLATERAL AGENT AND THE GUARANTORS IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT SITTING IN NEW YORK,
NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN
SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED
TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RELATED HERETO, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT
OR IN SUCH FEDERAL COURT. EACH OF THE GUARANTORS IRREVOCABLY DESIGNATES AND
APPOINTS UNITED STATES CORPORATION SERVICES COMPANY AT ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS ITS RESPECTIVE PROCESS AGENT (THE "PROCESS AGENT") FOR
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.
EACH OF THE COLLATERAL AGENT AND THE GUARANTORS AGREES THAT A FINAL
NONAPPEALABLE 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. EACH OF THE COLLATERAL AGENT AND THE GUARANTORS WAIVES
IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE IN ANY SUCH ACTION OR PROCEEDING IN SUCH STATE COURT OR
IN SUCH FEDERAL COURT.
(ii) EACH OF THE GUARANTORS AGREES THAT THE COLLATERAL AGENT
SHALL HAVE THE RIGHT TO PROCEED AGAINST EACH OF THE GUARANTORS OR ITS RESPECTIVE
PROPERTY IN A COURT HAVING JURISDICTION IN ANY LOCATION TO ENABLE THE AGENTS AND
THE LENDERS TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
GUARANTEED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF THE AGENTS OR ANY LENDER. EACH OF THE GUARANTORS WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH EITHER AGENT OR ANY
LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) SERVICE OF PROCESS. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE GUARANTORS IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE PROCESS AGENT OR THE GUARANTOR'S NOTICE ADDRESS SPECIFIED PURSUANT TO
SECTION 16 HEREOF, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH
MAILING. EACH OF THE COLLATERAL AGENT AND THE GUARANTORS IRREVOCABLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN ANY
JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
COLLATERAL AGENT TO BRING PROCEEDINGS AGAINST EACH OF THE GUARANTORS IN THE
COURTS OF ANY OTHER JURISDICTION.
7
(c) WAIVER OF JURY TRIAL. EACH OF THE COLLATERAL AGENT AND THE
GUARANTORS IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH SUCH PERSON IS A
PARTY.
15. WAIVER OF BOND. Each Guarantor waives, to the extent permitted
by law, the posting of any bond otherwise required of the Collateral Agent in
connection with any judicial process or proceeding to realize on the Collateral
or any other security for the Guaranteed Obligations, to enforce any judgment or
other court order entered in favor of the Collateral Agent, or to enforce by
specific performance, temporary restraining order, or preliminary or permanent
injunction, this Guaranty or any other agreement or document between the
Collateral Agent and such Guarantor.
16. NOTICES. All notices and other communications required or
desired to be served, given or delivered hereunder shall be in writing or by a
telecommunications device capable of creating a printed record and shall be
addressed to the party to be notified as follows:
if to any Guarantor, at:
Hexcel Corporation
Two Stamford Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Collateral Agent, at:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party, at such other address as designated by such party in a
written notice to the other party. All such notices and communications shall be
deemed to be validly served, given or delivered (i) ten (10) days following
deposit in the United States mails, with proper postage prepaid; (ii) upon
delivery thereof if delivered by hand to the party to be notified; (iii) one
Business Day after delivery thereof to a reputable overnight courier service,
with delivery charges prepaid; or (iv) upon confirmation of receipt thereof if
transmitted by a telecommunications device.
17. SEVERABILITY. Wherever possible, each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
18. ENTIRE AGREEMENT. This Guaranty, together with the other Credit
Documents, embodies the entire agreement and understanding among the parties
hereto with respect to the matters contained herein and supersedes all prior
agreements and understandings, written and oral, relating to the subject matter
hereof.
8
19. EXECUTION IN COUNTERPARTS. This Guaranty may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
20. ADDITIONAL GUARANTORS. Each of the Guarantors agrees that, if,
pursuant to the Credit Agreement, the Company shall be required to cause any
Domestic Subsidiary that is not a Guarantor to become a Guarantor, and such
Subsidiary shall execute and deliver a Subsidiary Guaranty Supplement in the
form of Exhibit A attached hereto, such Subsidiary shall for all purposes be a
party hereto and have the same rights, benefits and obligations as a Guarantor
party hereto on the Closing Date; PROVIDED that such Subsidiary may become a
guarantor of the Guaranteed Obligations by way of any document, instrument or
agreement which is reasonably satisfactory to the Collateral Agent and nothing
contained herein shall require that such Subsidiary become a guarantor of the
Guaranteed Obligations by way of a Subsidiary Guaranty Supplement
9
IN WITNESS WHEREOF, this Guaranty has been duly executed by each
Guarantor as of the day and year first set forth above.
HEXCEL BETA CORPORATION, a
Delaware corporation
HEXCEL INTERNATIONAL, a
California corporation
HEXCEL OMEGA CORPORATION, a
California corporation
By____________________________
Name:
Title:
Acknowledged and agreed to
as of the __ day of March 1998.
CITIBANK, N.A., as Collateral Agent
By:_________________________________
Name:
Title:
10
EXHIBIT A TO SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY SUPPLEMENT
The undersigned hereby agrees to be bound as a Guarantor for purposes
of the Subsidiary Guaranty dated as of March 5, 1998, among certain Subsidiaries
of Hexcel Corporation listed on the signature pages thereof and acknowledged by
Citibank, N.A., as Collateral Agent, and the undersigned hereby acknowledges
receipt of a copy of the Guaranty. Capitalized terms used herein are used with
the meanings given them in the Guaranty.
Agreed to this ___ day of ______________, _________.
[NAME OF GUARANTOR]
By:________________________
Name:
Title:
Notice Address:
EXHIBIT D-2
FORM OF SUBSIDIARY PLEDGE AGREEMENT
This AMENDED AND RESTATED PLEDGE AGREEMENT (as amended, supplemented
or otherwise modified from time to time, this "Pledge Agreement"), dated as of
March 5, 1998, by and between __________, a _____________ [corporation][company]
(with its successors and permitted assigns, the "Pledgor"), and CITIBANK, N.A.,
in its separate capacity as collateral agent (with its successors and permitted
assigns in such capacity, the "Collateral Agent") for the Lenders (as defined
below) parties to the Credit Agreement described below. Terms defined in the
Credit Agreement and not otherwise defined herein are used herein with the
meanings ascribed thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Lenders have agreed to make extensions of credit from
time to time to Hexcel Corporation (the "Company") and the Foreign Borrowers
pursuant to the Credit Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Company, the Foreign Borrowers from time to time parties thereto, the
Lenders, the Collateral Agent, the Syndication Agent and CSFB, as administrative
agent (in such capacity, the "Administrative Agent", together with the
Collateral Agent and the Syndication Agent, the "Agents");
WHEREAS, the Pledgor is a Wholly-owned Subsidiary of the Company and
has guaranteed the Obligations of the Company pursuant to the Domestic
Subsidiary Guaranty;
WHEREAS, the Pledgor owns the shares of capital stock described in
EXHIBIT A hereto and issued by the issuers named therein; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their extensions of credit under the Credit Agreement that the Pledgor
execute and deliver to the Collateral Agent this Pledge Agreement;
WHEREAS, the Pledgor is a party to the pledge agreement, dated as of
June 27, 1996 (as amended, supplemented or otherwise modified from time to time,
the "EXISTING PLEDGE AGREEMENT"), with the Collateral Agent; and
Whereas, the Collateral Agent has requested the Existing Pledge
Agreement to be amended as more fully described herein; and
WHEREAS, each of the parties to the Existing Pledge Agreement is
agreeable to the requested amendments, but only upon the terms and subject to
the conditions set forth herein, and each of the parties to the Existing Pledge
Agreement, for convenience of reference, has agreed to restate the Existing
Pledge Agreement as so amended; and
WHEREAS, each of the parties hereto are agreeable to the terms and
provisions of the Existing Pledge Agreement as amended and restated hereby;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties to the Existing Pledge Agreement agree that the
Existing Pledge Agreement shall be and hereby is amended and restated in its
entirety and the parties hereto hereby agree as follows:
1. DEFINED TERMS.
2
(a) Unless otherwise defined herein, each capitalized term used
herein that is defined in the Credit Agreement shall have the meaning specified
for such term in the Credit Agreement. Unless otherwise defined herein, all
terms defined in Article 8 and Article 9 of the Uniform Commercial Code in
effect as of the date hereof in the State of New York are used herein as defined
therein.
(b) The words "hereby," "hereof," "herein" and "hereunder" and words
of like import when used in this Pledge Agreement shall refer to this Pledge
Agreement as a whole and not to any particular provision of this Pledge
Agreement, and section references are to this Pledge Agreement unless otherwise
specified.
(c) All terms defined in this Pledge Agreement in the singular shall
have comparable meanings when used in the plural, and VICE VERSA, unless
otherwise specified.
2. PLEDGE. The Pledgor hereby pledges to the Collateral Agent (for
the benefit of the Agents and the Lenders) and grants to the Collateral Agent
(for the benefit of the Agents and the Lenders) a security interest in the
following (collectively, the "Pledged Collateral"):
(a) All of the issued and outstanding capital stock of the issuers
described in EXHIBIT A hereto (including, without limitation, the shares of
such capital stock described in EXHIBIT A hereto), and the certificates
representing the shares of such capital stock, all options and warrants for
the purchase of shares of such capital stock (all of said capital stock,
options and warrants and all capital stock held in the name of the Pledgor
as a result of the exercise of such options or warrants being hereinafter
collectively referred to as the "Pledged Stock"), and all dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of, or in exchange for, any or all of the
Pledged Stock;
(b) All additional shares of stock of any issuer of the Pledged Stock
from time to time acquired by the Pledgor in any manner, and all of the
shares of the capital stock issued to the Pledgor by any other Subsidiary
of the Company after the date hereof that are required to be pledged
pursuant to the Credit Agreement, and the certificates representing such
additional shares (any such additional shares shall constitute part of the
Pledged Stock and the Collateral Agent is irrevocably authorized, but is
not required, to amend EXHIBIT A from time to time to reflect such
additional shares), and all options, warrants, dividends, cash, instruments
and other rights and options from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares;
(c) The property and interests in property described in SECTION 4
below; and
(d) All proceeds of the foregoing.
The Pledgor hereby delivers to the Collateral Agent all of such Pledged
Collateral which is in existence on the date hereof, accompanied by appropriate
undated stock powers (the "Stock Powers") duly executed in blank.
3. SECURITY FOR OBLIGATIONS. The Pledged Collateral secures the
prompt payment, performance and observance of the Guaranteed Obligations (as
defined in the Domestic Subsidiary Guaranty) of the Company.
4. PLEDGED COLLATERAL ADJUSTMENTS. If, during the term of this
Pledge Agreement:
(a) any stock dividend, reclassification, readjustment or other
change is declared or made in the capital structure of any issuer of
Pledged Stock, or any option included within the Pledged Collateral is
exercised, or both, or
(b) any subscription warrants or any other rights or options shall be
issued in connection with the Pledged Collateral,
then all new, substituted and additional shares, warrants, rights, options,
notes or other securities, issued by reason of any of the foregoing, shall be
immediately delivered to and held by the Collateral Agent under the terms of
this Pledge Agreement and shall constitute Pledged Collateral hereunder;
PROVIDED, HOWEVER, that nothing contained in this SECTION 4 shall be deemed to
permit any stock dividend, issuance of additional stock, warrants, rights or
options,
3
reclassification, readjustment or other change in the capital structure
of any issuer of Pledged Stock which is prohibited in the Credit Agreement.
5. SUBSEQUENT CHANGES AFFECTING PLEDGED COLLATERAL. The Pledgor
represents and warrants that it has made its own arrangements for keeping
informed of changes or potential changes affecting the Pledged Collateral
(including, but not limited to, rights to convert, rights to subscribe, payment
of dividends, reorganization or other exchanges, tender offers and voting
rights), and the Pledgor agrees that neither the Agents nor any of the Lenders
shall have any obligation to inform the Pledgor of any such changes or potential
changes or to take any action or omit to take any action with respect thereto.
The Collateral Agent may, upon the occurrence and during the continuation of an
Event of Default, without notice and at its option, transfer or register the
Pledged Collateral or any part thereof into its or its nominee's name with or
without any indication that such Pledged Collateral is subject to the security
interest hereunder. In addition, the Collateral Agent may at any time, after
the occurrence and during the continuation of an Event of Default, exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
6. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of all of the
issued and outstanding capital stock of each issuer listed on EXHIBIT A
hereto, free and clear of any Lien except for the security interest created
by this Pledge Agreement, and the Pledged Stock constitutes 100% of the
issued and outstanding shares of capital stock of the respective issuers
thereof set forth in EXHIBIT A hereto;
(b) There are no restrictions upon the voting rights associated with,
or upon the transfer of, any of the Pledged Collateral, other than pursuant
to this Pledge Agreement;
(c) The pledge of the Pledged Collateral pursuant to this Pledge
Agreement creates a valid and perfected first priority security interest in
the Pledged Collateral, in favor of the Collateral Agent, for the benefit
of the Agents and the Lenders, securing the payment and performance of the
Obligations of the Borrowers; and
(e) The Stock Powers are duly executed and give the Collateral Agent
the authority they purport to confer.
7. VOTING RIGHTS. During the term of this Pledge Agreement, and
except as provided in this SECTION 7 below, the Pledgor shall have the right to
vote the Pledged Stock on all corporate questions in a manner not inconsistent
with the terms of this Pledge Agreement, the Credit Agreement or any other
Credit Document. Upon the occurrence and during the continuation of an Event of
Default, the Collateral Agent may, at the Collateral Agent's option and
following written notice from the Collateral Agent to the Pledgor, exercise all
voting powers pertaining to the Pledged Collateral, including the right to take
action by shareholder consent.
8. DIVIDENDS AND OTHER DISTRIBUTIONS. (a) So long as no Event of
Default under SECTION 12(a) of the Credit Agreement shall have occurred and be
continuing:
(i) The Pledgor shall be entitled to receive and retain any and all
dividends and interest paid in respect of the Pledged Collateral, PROVIDED,
HOWEVER, that any and all
(A) dividends and interest paid or payable other than in cash with
respect to, and instruments and other property received, receivable or
otherwise distributed with respect to, or in exchange for, any of the
Pledged Collateral;
(B) dividends and other distributions paid or payable in cash with
respect to any of the Pledged Collateral on account of a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid in surplus; and
(C) cash paid, payable or otherwise distributed with respect to
principal of, or in redemption of, or in exchange for, any of the
Pledged Collateral;
3
shall be Pledged Collateral, and shall be forthwith delivered to the
Collateral Agent to hold, for the benefit of the Agents and the Lenders, as
Pledged Collateral and shall, if received by the Pledgor, be received in
trust for the Collateral Agent, for the benefit of the Agents and the
Lenders, be segregated from the other property or funds of the Pledgor, and
be delivered immediately to the Collateral Agent as Pledged Collateral in
the same form as so received (with any necessary endorsement); and
(ii) The Collateral Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the dividends or interest payments which
the Pledgor is authorized to receive and retain pursuant to CLAUSE (i)
above or exercise the voting rights in SECTION 7 above.
(b) Upon the occurrence and during the continuation of an Event of Default
set forth in SECTION 12(A) of the Credit Agreement:
(i) All rights of the Pledgor to receive the dividends and interest
payments which it would otherwise be authorized to receive and retain
pursuant to SECTION 8(a)(i) hereof shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, for the benefit of the
Agents and the Lenders, which shall thereupon have the sole right to
receive and hold as Pledged Collateral such dividends and interest
payments;
(ii) All dividends and interest payments which are received by the
Pledgor contrary to the provisions of CLAUSE (i) of this SECTION 8(b) shall
be received in trust for the Collateral Agent, for the benefit of the
Agents and the Lenders, shall be segregated from other funds of the Pledgor
and shall be paid over immediately to the Collateral Agent as Pledged
Collateral in the same form as so received (with any necessary
endorsements); and
(iii) The Pledgor shall, upon the request of the Collateral Agent, at
Pledgor's expense, execute and deliver all such instruments and documents,
and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Collateral Agent, the Pledgor or its or
their counsel, advisable to register the applicable Pledged Collateral
under the provisions of the Securities Act, and to exercise its best
efforts to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the
Collateral Agent, the Pledgor or its or their counsel, are necessary or
advisable, all in conformity with the requirements of the Securities Act
and the rules and regulations of the Securities and Exchange Commission
applicable thereto;
(iv) The Pledgor shall, upon the request of the Collateral Agent, at
Pledgor's expense, use its best efforts to qualify the Pledged Collateral
under state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Pledged Collateral, as requested
by the Collateral Agent;
(v) The Pledgor shall, upon the request of the Collateral Agent, at
the Pledgor's expense, make available to the holders of its securities, as
soon as practicable, earnings statements which will satisfy the provisions
of SECTION 11(a) of the Securities Act; and
(vi) The Pledgor shall, upon the reasonable request of the Collateral
Agent, at the Pledgor's expense, do or cause to be done all such other acts
and things as may be necessary to make such sale of the Pledged Collateral
or any part thereof valid and binding and in compliance with applicable
law.
The Pledgor will reimburse the Collateral Agent for all reasonable expenses
incurred by the Collateral Agent, including, without limitation, reasonable
attorneys' and accountants' fees and expenses in connection with the
foregoing. Upon or at any time after the occurrence and during the
continuation of an Event of Default, if the Collateral Agent determines that,
prior to any public offering of any securities constituting part of the
Pledged Collateral, such securities should be registered under the Securities
Act and/or registered or qualified under any
5
other federal or state law and such registration and/or qualification is not
practicable, then the Pledgor agrees that it will be commercially reasonable
if a private sale, upon at least ten (10) Business Days' notice to the
Pledgor, is arranged so as to avoid a public offering, even though the sales
price established and/or obtained at such private sale may be substantially
less than prices which could have been obtained for such security on any
market or exchange or in any other public sale.
9. TRANSFERS AND OTHER LIENS. The Pledgor agrees that it will not
(i) sell or otherwise dispose of, or grant any option with respect to, any of
the Pledged Collateral without the prior written consent of the Collateral
Agent, other than in accordance with the Credit Agreement, or (ii) create or
permit to exist any Lien upon or with respect to any of the Pledged Collateral,
except for the security interest permitted hereunder and under the Credit
Agreement.
10. REMEDIES; APPLICATION OF PROCEEDS. (a) The Collateral Agent
shall have, in addition to any other rights given under this Pledge Agreement or
by law, all of the rights and remedies with respect to the Pledged Collateral of
a secured party under the Uniform Commercial Code as in effect in the State of
New York. In addition, upon the occurrence and during the continuation of an
Event of Default set forth in SECTION 12(a) of the Credit Agreement or upon
acceleration of the Obligations, the Administrative Agent shall have such powers
of sale and other powers as may be conferred by applicable law. With respect to
the Pledged Collateral or any part thereof which shall then be in or shall
thereafter come into the possession or custody of the Collateral Agent or which
the Collateral Agent shall otherwise have the ability to transfer under
applicable law, the Collateral Agent may, in its sole discretion, without notice
except as specified below, after the occurrence and during the continuation of
an Event of Default set forth in SECTION 12(a) of the Credit Agreement or upon
acceleration of the Obligations of the Borrowers, sell or cause the same to be
sold at any exchange, broker's board or at public or private sale, in one or
more sales or lots, at such price as the Collateral Agent may deem best, for
cash or on credit or for future delivery, without assumption of any credit risk,
and the purchaser of any or all of the Pledged Collateral so sold shall
thereafter own the same, absolutely free from any claim, encumbrance or right of
any kind whatsoever. The Agents and any Lender may, in its own name, or in the
name of a designee or nominee, buy such Pledged Collateral at any public sale
and, if permitted by applicable law, buy such Pledged Collateral at any private
sale. In the event of a sale of any Collateral, or any part thereof, to a
Lender or the Agents upon the occurrence and during the continuation of an Event
of Default set forth in SECTION 12(a) of the Credit Agreement or upon
acceleration of the Obligations, such Lender or the Agents, as the case may be,
shall not deduct or offset from any part of the purchase price to be paid
therefor any indebtedness owing to it by the Pledgor. The Pledgor will pay to
the Agents all reasonable expenses (including, without limitation, court costs
and reasonable attorneys' expenses) of, or incidental to, the enforcement of any
of the provisions hereof. The Collateral Agent agrees to distribute any
proceeds of the sale of the Pledged Collateral in accordance with the Credit
Agreement and the Pledgor shall remain liable for any deficiency following the
sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline speedily in
value or is or becomes of a type sold on a recognized market, the Collateral
Agent will give the Pledgor reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral
conducted in conformity with reasonable commercial practices of banks,
commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be commercially reasonable. Notwithstanding any provision to the
contrary contained herein, the Pledgor agrees that any requirements of
reasonable notice shall be met if such notice is received by the Pledgor as
provided in SECTION 20 below at least ten (10) Business Days before the time of
the sale or disposition; PROVIDED, HOWEVER, that the Collateral Agent may give
any shorter notice that is commercially reasonable under the circumstances. Any
other requirement of notice, demand or advertisement for sale is waived, to the
extent permitted by law.
(c) In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after the occurrence and during the continuation of
an Event of Default set forth in SECTION 12(a) of the Credit Agreement or upon
acceleration of the Obligations of the Borrowers, the Pledgor agrees that upon
the occurrence and during the continuation of an Event of Default, the
Collateral Agent may, from time to time, attempt to sell all or any part of the
Pledged Collateral by means of a private placement restricting the bidders and
prospective purchasers to those who are qualified and will represent and agree
that they are purchasing for investment only and not for distribution. In so
doing, the Collateral Agent
6
may solicit offers to buy the Pledged Collateral, or any part of it, from a
limited number of investors deemed by the Collateral Agent, in its reasonable
judgment, to be financially responsible parties who might be interested in
purchasing the Pledged Collateral. If the Collateral Agent solicits such
offers from not less than four (4) such investors, then the acceptance by the
Collateral Agent of the highest offer obtained therefrom shall be deemed to
be a commercially reasonable method of disposing of such Pledged Collateral;
PROVIDED, HOWEVER, that this Section does not impose a requirement that the
Collateral Agent solicit offers from four or more investors in order for the
sale to be commercially reasonable.
11. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
appoints the Collateral Agent its attorney-in-fact, with full authority, in the
name of the Pledgor or otherwise, upon the occurrence and during the
continuation of an Event of Default, from time to time in the Collateral Agent's
sole discretion, to take any action and to execute any instrument which the
Collateral Agent may deem necessary or advisable to accomplish the purposes of
this Pledge Agreement, including, without limitation (subject to SECTION 8
hereof), to receive, endorse and collect all instruments made payable to the
Pledgor representing any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof and to give full discharge
for the same and to arrange for the transfer of all or any part of the Pledged
Collateral on the books of each of the issuers of such Pledged Stock or obligors
of such Pledged Stock to the name of the Administrative Agent or the Collateral
Agent's nominee.
12. WAIVERS. The Pledgor waives presentment and demand for payment
of any of the Obligations, protest and notice of dishonor or Event of Default
with respect to any of the Obligations and all other notices to which the
Pledgor might otherwise be entitled except as otherwise expressly provided
herein or in the Credit Agreement.
13. TERMINATION OF THIS SECURITY AGREEMENT; RELEASE OF COLLATERAL.
(a) The pledge made and the security interest granted by the Pledgor under this
Pledge Agreement shall terminate upon final payment in full in cash of the
Obligations and the termination of the Revolving Credit Commitments under the
Credit Agreement. Upon such termination (other than as a result of the sale of
the Pledged Collateral) and at the written request of the Pledgor or its
successors or assigns, and at the cost and expense of the Pledgor or its
successors or assigns, the Collateral Agent shall execute in a timely manner
such instruments, documents or agreements as are necessary or desirable to
terminate the Collateral Agent's security interest in the Pledged Collateral and
deliver the Pledged Stock and the Stock Powers, subject to any disposition made
by the Collateral Agent pursuant to the Pledge Agreement.
(b) Notwithstanding anything in this Pledge Agreement to the contrary, the
Pledgor may, to the extent permitted by the Credit Agreement, sell, assign,
transfer or otherwise dispose of any Pledged Collateral. In addition, the
Collateral shall be subject to release from time to time (with the Collateral
referred to in the immediately preceding sentence, the "Released Collateral") in
accordance with SECTION 14.2 of the Credit Agreement. The Liens under this
Pledge Agreement shall terminate with respect to the Released Collateral upon
such sale, transfer, assignment, disposition or release, and, upon the request
of the Pledgor, the Collateral Agent shall execute and deliver such instruments
or documents as may be necessary to release the Liens granted hereunder;
PROVIDED, HOWEVER, that (i) the Collateral Agent shall not be required to
execute any such documents on terms which, in the Collateral Agent's opinion,
would expose the Collateral Agent to liability or create any obligation or
entail any consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Obligations or any Liens on (or obligations of the Pledgor in respect
of) all interests retained by the Pledgor, including without limitation, the
proceeds of any sale, all of which shall continue to constitute part of the
Collateral unless and until applied strictly in accordance with the Credit
Documents.
14. SUCCESSORS AND ASSIGNS. This Pledge Agreement shall be binding
upon the parties hereto and their respective successors and permitted assigns,
and shall inure to the benefit of the parties hereto and the successors and
permitted assigns of the Agents and the Lenders. The rights hereunder and the
interest herein of the Pledgor may not be assigned without the written consent
of the Required Lenders. Any attempted assignment without such written consent
shall be void. Nothing set forth herein or in any other Credit Document is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of this Pledge Agreement or any Pledged
Collateral. The Pledgor's successors shall include, without limitation, a
receiver, trustee or debtor-in-possession of or for the Pledgor.
7
15. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND THE RIGHTS
AND DUTIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK, EXCEPT FOR PERFECTION AND ENFORCEMENT OF SECURITY
INTERESTS AND LIENS IN OTHER JURISDICTIONS WHICH SHALL BE GOVERNED BY THE LAWS
OF THOSE JURISDICTIONS.
16. WAIVER OF BOND. The Pledgor waives, to the extent permitted by
law, the posting of any bond otherwise required of the Collateral Agent in
connection with any judicial process or proceeding to realize on the Pledged
Collateral or any other security for the Obligations, to enforce any judgment or
other court order entered in favor of the Collateral Agent, or to enforce by
specific performance, temporary restraining order, or preliminary or permanent
injunction, this Pledge Agreement or any other agreement or document between the
Collateral Agent and the Pledgor.
17. SEVERABILITY. Whenever possible, each provision of this Pledge
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Pledge Agreement shall be held to
be prohibited or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Pledge Agreement.
18. FURTHER ASSURANCES. The Pledgor agrees that it will cooperate
with the Collateral Agent and will execute and deliver, or cause to be executed
and delivered, all such other stock powers, proxies, instruments and documents,
and will take all such other actions, including, without limitation, the
execution and filing of financing statements, as the Collateral Agent may
reasonably request from time to time in order to carry out the provisions and
purposes of this Pledge Agreement.
19. THE COLLATERAL AGENT'S DUTY OF CARE. The Collateral Agent shall
not be liable for any acts, omissions, errors of judgment or mistakes of fact or
law including, without limitation, acts, omissions, errors or mistakes with
respect to the Pledged Collateral, except for those arising out of or in
connection with the Collateral Agent's (i) gross negligence or willful
misconduct as determined in a final nonappealable judgment by a court of
competent jurisdiction, or (ii) failure to use reasonable care with respect to
the safe custody of the Pledged Collateral in the Collateral Agent's possession.
Without limiting the generality of the foregoing, the Collateral Agent shall be
under no obligation to take any steps necessary to preserve rights in the
Pledged Collateral against any other parties but may do so at its option. All
expenses incurred in connection therewith shall be for the sole account of the
Pledgor, and shall constitute part of the Obligations secured hereby.
20. NOTICES. All notices and other communications hereunder shall be
given in the manner and to the addresses set forth in SECTION 14.3 of the Credit
Agreement.
21. AMENDMENTS, WAIVERS AND CONSENTS. None of the terms or
provisions of this Pledge Agreement may be waived, altered, modified or amended,
and no consent to any departure by the Pledgor herefrom shall be effective,
except by or pursuant to an instrument in writing which (i) is duly executed by
the Pledgor and the Administrative Agent and (ii) is otherwise made in
accordance with the Credit Agreement. Any such waiver shall be valid only to
the extent set forth therein. A waiver by the Collateral Agent of any right or
remedy under this Pledge Agreement on any one occasion shall not be construed as
a waiver of any right or remedy which the Collateral Agent would otherwise have
on any future occasion. No failure to exercise or delay in exercising any
right, power or privilege under this Pledge Agreement on the part of the
Collateral Agent shall operate as a waiver thereof; and no single or partial
exercise of any right, power or privilege under this Pledge Agreement shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
22. SECTION TITLES. The section titles herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of the
provisions hereof.
23. EXECUTION IN COUNTERPARTS. This Pledge Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
8
24. ENTIRE AGREEMENT. This Agreement, together with the other Credit
Documents, embodies the entire agreement and understanding of the parties hereto
with respect to the matters contained herein and supersedes all prior agreements
and understandings, written and oral, relating to the subject matter hereof.
9
IN WITNESS WHEREOF, the Pledgor and the Collateral Agent have executed
this Pledge Agreement as of the date set forth above.
[PLEDGOR]
By:________________________
Name:
Title:
CITIBANK, N.A., as Collateral Agent
By:_________________________
Name:
EXHIBIT A
to
PLEDGE AGREEMENT
PLEDGED STOCK
Stock Issuer Percentage of Stock Certificate Shares of Capital
Owned by Pledgor No. Stock Represented
Thereby
Hexcel Omega
Corporation 100% 1 1,000
ACKNOWLEDGEMENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Pledge Agreement, waives any rights or requirement at any time hereafter to
receive a copy of such Pledge Agreement in connection with the registration of
any Pledged Collateral in the name of the Administrative Agent or its nominee or
the exercise of voting rights by the Collateral agent and agrees to comply with
any provision of such Pledge Agreement which is applicable to it.
HEXCEL OMEGA CORPORATION
By:_________________________
Name:
Title:
11
EXHIBIT E - FORM OF OPINION OF SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
March 5, 1998
Credit Suisse First Boston,
as Administrative Agent
and
The Lenders
(as defined below) listed
on Schedule I hereto
Re: HEXCEL CORPORATION
Ladies and Gentlemen:
We have acted as special counsel to Hexcel Corporation, a Delaware
corporation ("HEXCEL"), and its subsidiaries, Hexcel Composites S.A., a company
organized under the laws of Belgium, Hexcel S.A., a company organized under the
laws of France, Hexcel Fabrics S.A., a company organized under the laws of
France, Hexcel Composites S.A., a company organized under the laws of France,
Hexcel (U.K.) Limited, a company organized under the laws of the United Kingdom,
Salver S.r.l., a limited liability company organized under the laws of Italy,
Hexcel Composites GmbH, a company organized under the laws of Germany, Hexcel
Composites GmbH, a company organized under the laws of Austria, Hexcel
Composites S.A., a corporation organized under the laws of Spain, and Hexcel
Composites Limited, a company organized under the laws of the United Kingdom
(such subsidiaries collectively, the "FOREIGN SUBSIDIARIES") in connection with
the preparation, execution and delivery of the Amended and Restated Credit
Agreement dated as of March 5, 1998 (the "AMENDED AND RESTATED CREDIT
AGREEMENT") among Hexcel, the Foreign Subsidiaries, the Lenders (as defined in
the Amended and Restated Credit Agreement) from time to time parties thereto
(the "LENDERS"), Citibank, N.A., a national banking association, in its capacity
as collateral agent (the "COLLATERAL AGENT"), Citicorp Securities, Inc., in its
capacity as syndication agent (the "SYNDICATION AGENT") and Credit Suisse First
Boston, a Swiss banking association, in its capacity as administrative agent and
documentation agent (the "ADMINISTRATIVE AGENT" and together with the Collateral
Agent, the "AGENTS").
This opinion is being delivered to you pursuant to Section 9.1(i)(i)
of the Amended and Restated Credit Agreement. Capitalized terms used herein and
not otherwise defined herein shall have the same meanings herein as ascribed
thereto in the Amended and Restated Credit Agreement.
Hexcel and the Foreign Subsidiaries are collectively referred to
herein as the "BORROWERS." Hexcel Beta Corp., a Delaware corporation ("BETA"),
Hexcel Far East, a California corporation ("FAR EAST"), Hexcel International, a
California corporation ("INTERNATIONAL"), Hexcel Omega Corporation, a California
corporation ("OMEGA"), Hexcel Pacific Rim Corporation, a Delaware corporation
("PACIFIC DELAWARE"), Hexcel Pacific Rim Corporation, a California corporation
("PACIFIC CALIFORNIA") and Hexcel Technologies Inc., a Delaware corporation
("TECHNOLOGIES") are collectively referred to herein as the "DOMESTIC
SUBSIDIARIES." Hexcel and the Domestic Subsidiaries are collectively referred
to herein as the "UNITED STATES PARTIES." Hexcel, Beta, Pacific Delaware, and
Technologies are collectively referred to herein as the "DELAWARE PARTIES." Far
East, International, Omega and Pacific
12
California are collectively referred to herein as the "CALIFORNIA PARTIES."
The Borrowers and the Domestic Subsidiaries are collectively referred to
herein as the "TRANSACTION PARTIES."
In rendering the opinions set forth herein, we have examined and
relied on originals or copies of the following:
(a) the Amended and Restated Credit Agreement;
(b) the Revolving Credit Notes made by Hexcel in favor of the
Lenders, dated the date hereof;
(c) the Swing Line Note made by Hexcel in favor of the Swing Line
Lender, dated the date hereof;
(d) the Amended and Restated Company Guaranty made by Hexcel in favor
of the Collateral Agent, for the benefit of the Agents and the Lenders, dated
the date hereof;
(e) the Amended and Restated Subsidiary Guaranty made by the Domestic
Subsidiaries (other than Far East and Technologies) in favor of the Collateral
Agent for the benefit of the Agents and the Lenders, dated the date hereof;
(f) the Amended and Restated Company Pledge Agreement executed by
Hexcel in favor of the Collateral Agent for the benefit of the Agents and the
Lenders, dated the date hereof (the "COMPANY PLEDGE AGREEMENT");
(g) the Amended and Restated Hexcel International Pledge Agreement
executed by International in favor of the Collateral Agent for the benefit of
the Agents and the Lenders, dated the date hereof (the "INTERNATIONAL PLEDGE
AGREEMENT");
(h) a certificate of an Officer of Hexcel, a copy of which is
attached hereto as Exhibit A (the "OFFICER'S CERTIFICATE");
(i) certified copies of the Certificate of Incorporation and By-laws
of each of the United States Parties;
(j) certified copies of certain resolutions of the Board of Directors
of the United States Parties;
(k) our opinion (the "ORIGINAL OPINION") dated June 27, 1996
delivered to you pursuant to Section 9.1(a)(i)(A) of the Credit Agreement dated
as of June 27, 1996 (the "CREDIT AGREEMENT") among Hexcel, certain foreign
subsidiaries party thereto, the Lenders and the Agents; and
(l) such other documents as we have deemed necessary or appropriate
as a basis for the opinions set forth below.
In our examination we have assumed the genuineness of all signatures,
including indorsements, the legal capacity of natural persons, the authenticity
of all documents submitted to us as
13
originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals
of such copies. As to any facts material to this opinion which we did not
independently establish or verify, we have relied upon statements and
representations of the Transaction Parties and their officers and other
representatives in the Transaction Documents (as hereinafter defined) and the
Officer's Certificate and of public officials.
The documents referred to in clauses (a) through (g) above are
referred to collectively herein as the "TRANSACTION DOCUMENTS". The documents
referred to in clauses (d) through (g) above are referred to collectively herein
as the "SECURITY DOCUMENTS". References to the "NEW YORK UCC" shall mean the
Uniform Commercial Code as in effect on the date hereof in the State of New
York. References to the "EXISTING CREDIT AGREEMENT" shall mean the Credit
Agreement as amended by Consent Number 1 and First Amendment dated as of July 3,
1996, Consent Number 2 and Second Amendment dated as of November 12, 1996 and
Consent Number 3 and Third Amendment dated as of February 27, 1997.
We express no opinion as to the law of any jurisdiction other than (i)
the laws of the State of New York, (ii) the General Corporation Law of the State
of Delaware, (iii) the General Corporation Law of the State of California, (iv)
the federal laws of the United States of America to the extent specifically
referred to herein, and (v) with respect to the security interest perfection
opinion set forth in paragraph 8 herein, the New York UCC.
The opinions set forth below are subject to the following assumptions
and qualifications:
(i) enforcement of the Transaction Documents may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in equity
or at law);
(ii) we express no opinion as to the applicability or effect of
any fraudulent transfer or similar law on the Transaction Documents or any
transactions contemplated thereby;
(iii) certain of the remedial provisions, including waivers,
with respect to the exercise of remedies against the collateral contained
in the Security Documents, may be unenforceable in whole or in part, but
the inclusion of such provisions does not affect the validity of each such
agreement, taken as a whole, and each such agreement, taken as a whole,
together with applicable law, contains adequate provisions for the
practical realization of the benefits of the security created thereby;
(iv) enforcement of the Security Documents with respect to
collateral consisting of the interest of the
14
Borrowers in instruments, leases, contracts or other agreements
("CONTRACTS") and accounts or general intangibles arising thereunder, may
be subject to the terms of such Contracts, the rights of such other parties
to such Contracts and any claims or defenses of such other parties against
the Borrowers arising under or outside such Contracts;
(v) we have assumed that the Transaction Documents constitute
the legal, valid and binding obligation of each party to such Transaction
Document (other than the Transaction Parties) enforceable against such
party (other than the Transaction Parties) in accordance with its terms;
(vi) we express no opinion as to the effect on the opinions
expressed herein of (a) the compliance or noncompliance of the Collateral
Agent, the Administrative Agent or any of the Lenders, with any state,
federal or other laws or regulations applicable to it or (b) the legal or
regulatory status or the nature of the business of the Collateral Agent,
the Administrative Agent and the Lenders;
(vii) we express no opinion as to the effect on the
opinions expressed herein of any conflict, contravention,
violation or default under (a) any lease, indenture, instrument
or other agreement to which any Transaction Party or its property
is subject (other than the Applicable Contracts as to which we
express our opinion in paragraph 4 herein), (b) any rule, law or
regulation to which any Transaction Party is subject (other than
Applicable Laws as to which we express our opinion in paragraph 5
herein), or (c) any judicial or administrative order or decree of
any governmental authority (other than Applicable Orders as to
which we express our opinion in paragraph 7 herein);
(viii) we have assumed that no authorization, consent or
other approval of, notice to or filing with any court, governmental
authority or regulatory body (other than Governmental Approvals as to
which we express our opinion in paragraph 6 herein) is required to
authorize or is required in connection with the execution, delivery or
performance by the Transaction Parties of any of the Transaction
Documents or the transactions contemplated thereby;
(ix) we have assumed that (a) each of the Foreign Subsidiaries
is duly organized and validly existing in its jurisdiction of organization,
has the corporate or company power and authority to execute, deliver and
perform all of its obligations under each of the Transaction Documents to
which it is a party, and has the corporate or company power and authority
and the legal right to own and operate its property, to lease the property
it operates as lessee and to conduct the business in which it is currently
engaged, (b) the execution and delivery of each of the Transaction
Documents by each Foreign Subsidiary which is a party thereto and the
consummation by each Foreign Subsidiary
15
of the transactions contemplated thereby have been duly authorized by all
requisite corporate or company action on the part of each Foreign
Subsidiary, and (c) each of the Transaction Documents has been duly
executed and delivered by each Foreign Subsidiary which is a party thereto;
and
(x) we call to your attention that (i) effective enforcement of
a claim denominated in a foreign currency may be limited by requirements
that the claim (or a judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a specified date
and (ii) we express no opinion as to whether a federal or state court would
award a judgment in a currency other than United States dollars.
We have previously delivered to you our Original Opinion with respect
to, among other things, the enforceability of each of the Company Pledge
Agreement and the International Pledge Agreement (as defined therein and herein
referred to as the "EXISTING PLEDGE AGREEMENTS") and the validity and perfection
of the security interests created thereby. Such opinion is subject to certain
assumptions and qualifications and the opinions set forth herein are subject to
such assumptions and qualifications.
We understand that you are separately receiving legal opinions
(collectively, the "OTHER LEGAL OPINIONS"), dated the date hereof, from (i)
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (UK), (ii) ▇.▇. ▇▇▇▇▇▇▇▇▇, (iii) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., (iv)
Marina, Aghina, Bonvicini & Ludergneni, (v) Heller, Lober, Bahn & Partners, (vi)
▇▇▇▇▇, Acibo & Pambo, and (vii) Doser Amereller ▇▇▇▇▇, with respect to certain
of the matters set forth above. Our opinions herein stated are based upon the
assumptions and qualifications specified herein and we express no opinion as to
the effect on the opinions herein stated of the assumptions and qualifications
contained in the Other Legal Opinions.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. Each United States Party is a corporation validly existing and in
good standing under the laws of its jurisdiction of incorporation. Based solely
upon the certificates issued by public officials in the jurisdictions set forth
on Schedule II hereto, each United States Party is qualified, licensed,
authorized, or entitled to transact or do business (as set forth in such
certificates) as a foreign corporation under the laws of each such jurisdiction.
2. Each United States Party (a) has the corporate power and authority
to execute, deliver and perform all of its obligations under each of the
Transaction Documents to which it is a party and (b) has the corporate power and
authority to conduct the business as described in the Annual Report on Form 10-K
of Hexcel for the fiscal year ended December 31, 1996. The execution and
delivery of each of the Transaction Documents by each United States Party which
is a party thereto and the consummation by each United States Party of the
transactions contemplated thereby have been duly authorized by all requisite
corporate
16
action on the part of each United States Party. Each of the Transaction
Documents has been duly executed and delivered by each United States - Party
which is a party thereto.
3. Each of the Transaction Documents constitutes the legal, valid and
binding obligation of each Transaction Party which is a party thereto,
enforceable against each such Transaction Party in accordance with its terms,
subject to the qualification that we express no opinion as to (i) the
enforceability of any rights to contribution or indemnification provided for in
such Transaction Documents to the extent any such rights are violative of the
public policy underlying any law, rule or regulation (including, without
limitation, any federal or state securities law, rule or regulation) and (ii)
any provisions which permit any party to any such Transaction Document or any
purchaser of a participation interest from any such party to set off or apply
any deposit, property or indebtedness with respect to any participation
interest.
4. The execution and delivery by each United States Party of the
Transaction Documents to which it is a party and the performance by each such
United States Party of its obligations under each such Transaction Document,
each in accordance with its terms, do not (a) conflict with the Certificate of
Incorporation or By-laws of each such United States Party, (b) constitute a
violation of or a default under any Applicable Contract (as hereinafter defined)
or (c) cause the creation of any security interest or lien (other than the liens
granted under or created by the Transaction Documents) upon any of the property
of the United States Parties pursuant to any Applicable Contracts. "APPLICABLE
CONTRACTS" means those agreements set forth on Schedule III hereto. We express
no opinion, as to the existence of any violation of, or default under, any
financial ratios or tests which may be contained in any Applicable Contract.
5. Neither the execution, delivery or performance by any United
States Party of the Transaction Documents to which it is a party, nor the
compliance by any United States Party with the terms and provisions thereof will
contravene any provision of any Applicable Law (as hereinafter defined).
"APPLICABLE LAWS" means the General Corporation Law of the States of Delaware
and California and those laws, rules and regulations of the State of New York
and of the United States of America (including, without limitation, Regulations
G, U and X of the Board of Governors of the Federal Reserve Board) which, in our
dexperience, are normally applicable to transactions of the type contemplated by
the Transaction Documents, but without our having made any special investigation
as to the applicability of any specific law, rule or regulation.
6. No Governmental Approval (as hereinafter defined), which has not
been obtained or taken and is not in full force and effect, is required to
authorize or is required in connection with the execution, delivery or
performance of any of the Transaction Documents by any United States Party.
"GOVERNMENTAL APPROVAL" means any consent, approval, license, authorization or
validation of, or filing, recording or registration with, any Governmental
Authority pursuant to Applicable Laws. "GOVERNMENTAL AUTHORITY" means any New
York, Delaware, California or federal, legislative, judicial, administrative or
regulatory body.
17
7. Neither the execution, delivery or performance by any United
States Party of its obligations under the Transaction Documents to which it is a
party, nor compliance by such United States Party with the terms thereof will
contravene any Applicable Order applicable to such United States Party.
"APPLICABLE ORDERS" means those orders, judgments or decrees of Governmental
Authorities applicable to or binding upon the United States Parties as
identified to us in the Officer's Certificate.
8. The Amendment and Restatement of the Existing Credit Agreement and
the Existing Pledge Agreements do not, of themselves, adversely affect the
validity or perfection of the security interest of the Collateral Agent for the
benefit of the Agents and the Lenders granted in the certificates identified on
Exhibit A to each of the Existing Pledge Agreements (the "PLEDGED SHARES").
After giving effect to the Amendment and Restatement of the Existing Credit
Agreement and the Existing Pledge Agreements, the security interest of the
Collateral Agent in the Pledged Shares will be entitled to the same status as a
valid and perfected security interest to which it would otherwise have been
entitled (as reflected in the Original Opinion) immediately prior to giving
effect to the Amendment and Restatement of the Existing Credit Agreement and the
Existing Pledge Agreements. The Loans are entitled to the benefit of the
security interest created by the Existing Pledge Agreements in favor of the
Collateral Agent.
Our opinion in paragraph 8 above is subject to the following
additional assumptions and qualifications:
(a) our security interest opinions are limited to Articles 8 and 9 of
the UCC, and therefore such opinions do not address (i) laws of jurisdictions
other than New York, and of New York, except for Articles 8 and 9 of the UCC,
(ii) collateral of a type not subject to Article 8 or 9 of the UCC, and (iii)
under Section 9-103, what law governs perfection of the security interests
granted in the collateral covered by this opinion;
(b) except for the amendment and restatement thereof on the date
hereof, based on the Officer's Certificate, we have assumed that each of the
Existing Pledge Agreements has not been amended, modified or supplemented and no
rights pursuant thereto have been released, waived or modified by any of the
parties to the Existing Pledge Agreements subsequent to the date of our Original
Opinion;
(c) based on the Officer's Certificate, we have assumed that all
actions specified, assumed or relied upon in the Original Opinion have been
taken and that all of the facts and conditions specified, assumed or relied upon
in the Original Opinion remain correct;
(d) we have assumed that the Collateral Agent was at all times acting
in good faith and without notice of any adverse claims with respect to the
Pledged Shares and that the certificates evidencing the Pledged Shares are, have
been and will be at all times in the continuous possession of the Collateral
Agent in the State of New York.
18
(e) we express no opinion with respect to the priority of a lien
creditor (as defined in Section 9-301(3) of the UCC) who acquired a lien on any
of the Pledged Shares by attachment or levy at any time within 45 days prior to
the date hereof pursuant to Section 9-301(4) of the UCC; and
(f) we note that since the date of the Original Opinion, filing was
not a method of perfection for the Pledged Shares, but the law has since changed
to permit filing a financing statement with respect to the Pledged Shares.
9. None of the Transaction Parties is an "investment company" under
the Investment Company Act of 1940, as amended.
10. None of the Transaction Parties is a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
This opinion is being furnished only to you in connection with the
Amended and Restated Credit Agreement and is solely for your benefit and is not
to be used, quoted, relied upon or otherwise referred to by any other Person or
for any other purpose without our prior written consent.
Very truly yours,
19
SCHEDULE I
TO SASM&F OPINION
ADDRESSEES
1. Credit Suisse First Boston
2. The Bank of New York
3. Banque Nationale de Paris, San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
4. The Chase Manhattan Bank
5. Citibank, N.A.
6. Credit Lyonnais
7. Istituto Bancario San Paolo Di Torino, S.p.A.
8. Societe Generale
9. Union Bank of California, N.A.
10. Swiss Bank Corporation, Stamford and Cayman Island Branches
11. Union Bank of ▇▇▇▇▇▇▇▇▇▇▇
▇▇. Credit Suisse First Boston Aktiengesellschaft
13. Union Bank of California, N.A.
20
SCHEDULE II
TO SASM&F OPINION
FOREIGN JURISDICTIONS
NAME JURISDICTION
Hexcel Corporation Alabama, Arizona,
California, Colorado,
Connecticut, Florida,
Georgia, Illinois,
Massachusetts,
Michigan, New Jersey,
Ohio, Pennsylvania,
Texas, Utah, Washington
Hexcel Beta Corp. California
Hexcel Pacific Rim Corporation California
(Delaware)
21
SCHEDULE III
TO SASM&F OPINION
APPLICABLE CONTRACTS
1. Indenture dated as of August 1, 1986 between Hexcel Corporation and The
Bank of California, N.A., as trustee.
2. Indenture dated as of February 29, 1996 between Hexcel Corporation and
First Trust of California, National Association, as trustee, as amended.
3. Indenture dated as of July 24, 1996 between Hexcel Corporation and First
Trust of California, National Association, as trustee.
22
Exhibit A
to SASM&F Opinion
CERTIFICATE OF OFFICER
OF
HEXCEL CORPORATION
I, ▇▇▇ ▇▇▇▇▇▇▇▇, am the Senior Vice President, Secretary and the
General Counsel of Hexcel Corporation, a Delaware corporation ("HEXCEL"), and as
such, am familiar with the business and operations of each of the Transaction
Parties. I understand that pursuant to the Amended and Restated Credit
Agreement, dated as of March 5, 1998 (the "CREDIT AGREEMENT"), among Hexcel,
certain Foreign Subsidiaries thereto, the Lenders from time to time parties
thereto (the "LENDERS"), Citibank, N.A., in its capacity as collateral agent
(the "COLLATERAL AGENT"), and Credit Suisse First Boston, in its capacity as
documentation agent and administrative agent (the "ADMINISTRATIVE AGENT" and
together with the Collateral Agent, the "AGENTS"), Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP is rendering an opinion dated March 5, 1998 with respect thereto (the
"OPINION"). I further understand that Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
is relying on this officer's certificate and the statements made herein in
rendering such Opinion. Capitalized terms used herein and not otherwise defined
herein shall have the same meaning herein as ascribed thereto in the Opinion.
With regard to the foregoing, on behalf of each of the Transaction
Parties, I do hereby certify that:
1. Due inquiry has been made of all persons deemed necessary or
appropriate to confirm the statements made herein.
2. Set forth on Schedule II hereto are all the material orders,
judgments or decrees of Governmental Authorities which name any United States
Party or to which the business or assets of any United States Party are subject.
3. Less than 25 percent of the assets of each of the Transaction
Parties on a consolidated basis and on an unconsolidated basis consist of margin
stock (as such term is defined in Regulation G or Regulation U of the Board of
Governors of the Federal Reserve System).
4. Each of the Transaction Parties (a) is primarily engaged, directly
or through a wholly-owned subsidiary or subsidiaries, in a business or
businesses other than that of investing, reinvesting, owning, holding or trading
in securities and (b) is not engaged and does not propose to engage in the
business or investing, reinvesting, owning, holding or trading in securities,
and does not own or propose to acquire "investment securities" (as such term is
defined in the Investment Company Act of 1940, as amended) having a value
exceeding 40 percent of the value of such Transaction Party's total assets
(exclusive of government securities and cash items) on an unconsolidated basis.
23
5. No Transaction Party is a "gas utility company" within the
meaning of the Public Utility Holding Company of 1935, as amended.
6. No Transaction Party is an "electric utility company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
7. No Transaction Party, owns, controls, or holds with power to vote
(a) ten percent (10%) or more of the outstanding securities, such as notes,
drafts, stock, treasury stock, bonds, debentures, certificates of interest or
participations in any profit sharing agreements or in oil, gas, other mineral
royalties or leases, collateral-trust certificates, preorganization certificates
or subscriptions, transferable shares, investment contracts, voting-trust
certificates, certificates of deposit for a security, receiver's or trustee's
certificates, or any other instrument commonly known as a "security" (including
certificates of interest or participation in, temporary or interim certificates
for, receipt for, guaranty of, assumption of liability on, or warrants or rights
to subscribe to or purchase any of the foregoing) presently entitling it to vote
in the direction of management of, or any such instrument issued under or
pursuant to any trust, agreement, or arrangement whereby a trustee or trustees
or agent or agents for the owner of holder of such instrument is presently
entitled to vote in the direction or management of, any corporation,
partnership, association, joint-stock company, joint venture or trust that owns
or operates any "public utility company" (as such term is defined in the Public
Utility Holding Company Act of 1935, as amended), or (b) any other interest,
directly or indirectly, or through one or more intermediary entities, in any
corporation partnership, association, joint-venture company, joint venture or
trust that owns or operates any public utility company.
8. No Transaction Party has received notice that the Securities and
Exchange Commission has determined, or may determine, that such Transaction
Party exercises a controlling influence over the management or direction of the
policies of a gas utility company or an electric utility company as to make it
subject to the obligations, duties and liabilities imposed on holding companies
by the Public Utility Holding Company Act of 1935, as amended.
9. Since June 27, 1996 each of the Existing Pledge Agreements has
not been amended, modified or supplemented and no rights pursuant thereto have
been released waived or modified.
10. In respect of the validity or perfection of the security interest
of the Collateral Agent on behalf of the Agents and the Lenders in the
Transaction Parties' Pledged Shares, all actions to be taken by the Borrowers or
any other Transaction Party specified, assumed or relied upon in the Original
Opinion have been taken and all the facts and conditions specified, assumed or
relied upon in the Original Opinion remain correct.
24
IN WITNESS WHEREOF, I, in my capacity as an officer of Hexcel
Corporation, have executed this certificate this __ day of March, 1998.
HEXCEL CORPORATION
By:______________________________
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President, Secretary
and General Counsel
Schedule I to
Exhibit A
APPLICABLE ORDERS
United States Bankruptcy Court Northern District of California Order N.
93-48535T dated January 10, 1995 In re Hexcel Corporation.
EXHIBIT F-1
FORM OF NOTICE OF BORROWING (DRAWINGS)
To: Credit Suisse First Boston, in its capacity as administrative agent (with
its successors in such capacities, the "Administrative Agent") for the
Lenders (as defined below) under the Amended and Restated Credit Agreement
dated as of March 5, 1998 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Hexcel
Corporation, the Foreign Borrowers from time to time parties thereto, the
financial institutions from time to time parties thereto as Lenders (the
"Lenders"), the Collateral Agent and Credit Suisse First Boston, in its
capacity as administrative agent for the Lenders.
Pursuant to [SECTION 2.2](1)/[SECTION 4.2](2)/[SECTION 5.2](3)/[SECTION
5.3](4)/ of the Credit Agreement, this Notice of Borrowing ("Notice") represents
the request of the undersigned Borrower (the "Borrower") to borrow on [the date
hereof] [_______________, _____ ](the "Funding Date") from the Lenders
[the principal amount of $ _______________][the principal amount of
_______________ in the lawful currency of
[Austria][Belgium][France][Germany] [Italy][the
Netherlands][Spain][the United Kingdom]] in Revolving Credit Loans as
[ABR Loans][Eurocurrency Rate Loans]. In the event that such
Revolving Credit Loans are Eurocurrency Rate Loans, the Interest
Period for such Eurocurrency Rate Loans is requested to be a
[one][two][three][six] month period.]
[the principal amount of $ ________________ in Swing Line Loans as ABR
Loans]
Proceeds of such Loans are to be deposited on the Funding Date into the
Borrower's disbursement account number __________ maintained at the office of
__________.
The Borrower certifies that as of the Funding Date all of the conditions
precedent contained in [SECTION 9.1 of the Credit Agreement](5)/[SECTION 9.2 of
the Credit Agreement](6)/ have been satisfied (or waived pursuant to SECTION
14.1 of the Credit Agreement).
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Notice.
Dated this ___ day of ___________, ____.
[Name of Borrower]
----------------------------
(1)/ To be used for a requested Borrowing of Domestic Revolving Loans.
(2)/ To be used for a requested Borrowing of Swing Loans.
(3)/ To be used for a requested Borrowing of Syndicated European Loans.
(4)/ To be used for a requested Borrowing of Local European Loans.
(5)/ To be used for Revolving Credit Loans to be made on the Closing Date. All
Revolving Credit Loans made on the Closing Date shall be ABR Loans.
(6)/ To be used for Revolving Credit Loans and Swing Line Loans to be made after
the Closing Date.
By:
Name:
Title:
EXHIBIT F-2
FORM OF NOTICE OF BORROWING (CONVERSION)
To: Credit Suisse First Boston, in its capacity as administrative agent (with
its successors in such capacities, the "Administrative Agent") for the
Lenders (as defined below) under the Amended and Restated Credit Agreement
dated as of March 5, 1998 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Hexcel
Corporation, the Foreign Borrowers from time to time parties thereto, the
financial institutions from time to time parties thereto as Lenders (the
"Lenders"), the Collateral Agent and the Administrative Agent for the
Lenders.
Pursuant to SECTION 7.6(a) of the Credit Agreement, this Notice of
Borrowing (Conversion) ("Notice") represents the election of the undersigned
Borrower (the "Borrower") to
[Convert $____________ in aggregate principal amount of Revolving Credit
Loans consisting of ABR Loans from ABR Loans to Eurocurrency Rate Loans
denominated in the same currency on ________________, ____. The initial
Interest Period for such Eurocurrency Rate Loans is requested to be a
[one][two][three][six] month period.]
[Convert $_____________ in aggregate principal amount of outstanding
Eurocurrency Rate Loans to ABR Loans denominated in the same currency on
____________, _____.]
The Borrower hereby certifies that (i) the proposed conversion would
not violate any provisions of SECTION 7.7 of the Credit Agreement and, as a
result thereof, (ii) no Default or Event of Default would occur or has occurred
and is continuing under the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Notice.
Dated this ___ day of ________, ____.
[Name of Borrower]
By:________________________
Name:
Title:
EXHIBIT F-3
FORM OF NOTICE OF BORROWING (CONTINUATION)
To: Credit Suisse First Boston, in its capacity as administrative agent (with
its successors in such capacities, the "Administrative Agent") for the
Lenders (as defined below) under the Amended and Restated Credit Agreement
dated as of March 5, 1998 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Hexcel
Corporation, the Foreign Borrowers from time to time parties thereto, the
financial institutions from time to time parties thereto as Lenders (the
"Lenders"), the Collateral Agent and the Administrative Agent for the
Lenders.
Pursuant to SECTION 7.6(b) of the Credit Agreement, this Notice of
Borrowing (Continuation) ("Notice") represents the election of the undersigned
Borrower (the "Borrower") to continue as Eurocurrency Rate Loans
$_______________ in aggregate principal amount of Revolving Credit Loans
consisting of Eurocurrency Rate Loans denominated in the same currency with a
current Interest Period ending _______________, ____. The succeeding Interest
Period for such Eurocurrency Rate Loans is requested to be a
[one][two][three][six] month period.
The Borrower hereby certifies that (i) the proposed continuation would not
violate any provisions of SECTION 7.7 of the Credit Agreement and, as a result
thereof, (ii) no Default or Event of Default would occur or has occurred and is
continuing under the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Notice.
Dated this ___ day of ________, ____.
[Name of Borrower]
By:________________________
Name:
Title:
EXHIBIT G
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE dated ____________ __, ____, between
_______________________ (the "ASSIGNOR") and __________________________ (the
"ASSIGNEE").
PRELIMINARY STATEMENTS
A. Reference is made to the Amended and Restated Credit Agreement
dated as of March 5, 1998 (as amended, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT") among Hexcel Corporation, a Delaware
corporation (with its successors and permitted assigns, the "COMPANY"), the
Foreign Borrowers (as defined therein) from time to time parties thereto, the
institutions from time to time parties thereto as Lenders, whether by execution
of the Credit Agreement or an Assignment and Acceptance, Citibank, N.A., in its
separate capacity as collateral agent for the Lenders and Credit Suisse First
Boston, a Swiss banking association acting through its New York branch ("CSFB"),
in its separate capacity as administrative agent for the Lenders (with its
successors in such capacity, the "ADMINISTRATIVE AGENT"). Terms defined in the
Credit Agreement and not otherwise defined herein are used herein with the
meanings ascribed thereto in the Credit Agreement.
B. The Assignor is a Lender under the Credit Agreement and desires
to sell and assign to the Assignee, and the Assignee desires to purchase and
assume from the Assignor, on the terms and conditions set forth below, a ___
percent (____%) interest in the Aggregate Revolving Credit Commitment (the
"ASSIGNED PERCENTAGE"), together with the Assignor's rights and obligations
under the Credit Agreement with respect to the Assigned Percentage.
NOW, THEREFORE, the Assignor and the Assignee hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the Assigned
Percentage, together with the Assignor's rights and obligations under the Credit
Agreement with respect to such Assigned Percentage, including, without
limitation, the obligation to make Revolving Credit Loans and to participate in
Letters of Credit.
2. The Assignor (i) represents and warrants that as of the date
hereof its Revolving Credit Commitment Percentage (without giving effect to
assignments thereof which have not yet become effective) is ____% and that such
Revolving Credit Commitment Percentage multiplied by the Aggregate Revolving
Credit Commitments is equal to $_____________; (ii) represents and warrants that
it has legal and beneficial title to the interests being assigned by it
hereunder free and clear of any claim adverse to such title; (iii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any of the other
Credit Documents, or any other instrument or document furnished pursuant thereto
or executed and delivered in connection therewith; (iv) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or any of such Borrower's Subsidiaries or the
performance or observance by any Borrower or any of such Borrower's Subsidiaries
of any of such Persons' respective obligations under the Credit Agreement, any
other Credit Document or any instrument or document furnished pursuant thereto;
and (v) attaches the Revolving Credit Note (if any) delivered to it under the
Credit Agreement.
2
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of such other
Credit Documents, information, exhibits, reports, projections and forecasts that
the Assignee has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (iii) agrees that it shall have no
recourse against the Assignor with respect to any matters relating to the Credit
Agreement, any other Credit Document or this Assignment and Acceptance (except
with respect to the representations and warranties made by the Assignor in
CLAUSES (i) and (ii) of PARAGRAPH 2 above); (iv) agrees that it will,
independently and without reliance upon the Administrative Agent, the Collateral
Agent, the Assignor 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 the Credit Agreement and
the other Credit Documents; (v) appoints and authorizes each of the
Administrative Agent and the Collateral Agent to take such action as
administrative agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Administrative
Agent or the Collateral Agent, as the case may be, by the terms thereof,
together with such powers as are reasonably incidental thereto; (vi) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement and other Credit Documents are required to be
performed by it as a Lender; (vii) confirms that it is an Eligible Assignee; and
(viii) specifies as its address for notices the address set forth beneath its
name on the signature page hereof, together with the name and address of its
U.S. lending office and its European lending office.
4. The effective date for this Assignment and Acceptance shall be
___________ __, ____ (the "EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by the Administrative Agent and for recording in the Register by the
Administrative Agent, together with a processing and recordation fee of $3,500
to be paid to the Administrative Agent by the [Assignor][Assignee].
5. As of the Effective Date, provided that each of the
Administrative Agent accepts this Assignment and Acceptance and the Company
accepts the Assignee pursuant to the terms of SECTION 14.7(c) of the Credit
Agreement, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall relinquish its
rights and be released from its obligations under the Credit Agreement with
respect to the Assigned Percentage.
6. From and after the Effective Date, provided that the
Administrative Agent accepts this Assignment and Acceptance, the Administrative
Agent shall make all payments under the Credit Agreement in respect of the
Assigned Percentage (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer thereunto duly authorized, as of _________ __, ____.
[NAME OF ASSIGNOR]
By______________________________
Name:_________________________
Title:________________________
New Revolving Credit Commitment
Percentage _______%
New Revolving
Credit Commitment $_______
[NAME OF ASSIGNEE]
By______________________________
Name:_________________________
Title:________________________
Notice Address and
U.S. Lending Office:
European Lending Office:
Revolving Credit Commitment
Percentage _______%
Revolving Credit
Commitment $_______
Agreed to and accepted this __
day of __________, ____
CREDIT SUISSE FIRST BOSTON, as Administrative Agent
By____________________________
Title:
By____________________________
Title:
HEXCEL CORPORATION
By____________________________
Title:
EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
To: Credit Suisse First Boston, in its capacity as administrative agent (with
its successors in such capacities, the "Administrative Agent") for the
Lenders (as defined below) under the Amended and Restated Credit Agreement
dated as of March 5, 1998 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Hexcel
Corporation, the Foreign Borrowers from time to time parties thereto, the
financial institutions from time to time parties thereto as Lenders (the
"Lenders"), the Collateral Agent (as defined therein) and Credit Suisse
First Boston, in its capacity as administrative agent for the Lenders.
Pursuant to SECTION 10.2(b) of the Credit Agreement, the [Chief
Financial Officer][Treasurer][Comptroller] of the undersigned, hereby certifies
that:
1. I am the duly elected, qualified and acting [Chief Financial
Officer][Treasurer][Controller] of the Borrower.
2. Unless otherwise defined herein, terms defined in the Credit
Agreement shall have the same meanings in this Certificate.
3. There has been a review of the terms of the Credit Documents and
a review in reasonable detail of the transactions and consolidated
financial condition of the Borrower and its Subsidiaries during the
accounting period(s) covered by the financial statements identified below.
Such review [has] [has not] disclosed the existence during or at the end of
such accounting period, and as at the date hereof the undersigned [does]
[does not] have knowledge, of any condition or event which constitutes a
Default or an Event of Default. [If such condition or event exists or
existed, specify (i) nature and period of such condition or event and (ii)
action being taken and/or proposed to be taken with respect thereto.]
4. The financial statements, reports and copies of certain
instruments and documents attached hereto, namely,
A. _______________, dated _______________
B. _______________, dated _______________
C. _______________, dated _______________
D. _______________, dated _______________
are true, accurate and complete copies of the aforesaid instruments and
documents which constitute part of the customary books and records of the
Borrower.
2
5. The certificate attached as Annex I hereto demonstrates (a)
calculations relating to the terms of SECTION 7.5 of the Credit Agreement
(including, without limitation, calculations of Net Cash Proceeds and
mandatory prepayments), and (b) compliance by the Borrowers with the
negative covenants of SECTION 11 of the Credit Agreement.
Dated this ___ day of ________, ____.
HEXCEL CORPORATION
By__________________________
Name:_____________________
Title:____________________
EXHIBIT I
FORM OF ADDITIONAL BORROWER JOINDER AGREEMENT
WHEREAS, [_________________] is a Wholly-owned Subsidiary of Hexcel
Corporation (the ACompany"); and
WHEREAS, the Company is a party to that certain Amended and Restated
Credit Agreement dated as of March 5, 1998 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement") among the
Company, the Foreign Borrowers from time to time parties thereto, the
institutions from time to time parties thereto as lenders (the "Lenders"), the
Collateral Agent and Credit Suisse First Boston, in its capacity as
administrative agent (in such capacity, the "Administrative Agent") (terms
defined in the Credit Agreement and not otherwise defined herein are used herein
with the meanings ascribed thereto in the Credit Agreement); and
WHEREAS, the Lenders and the Administrative Agent have required as a
condition, among other conditions set forth in SECTION 7.19 of the Credit
Agreement, to [the undersigned] becoming an Additional Borrower under the Credit
Agreement that [the undersigned] execute this Additional Borrower Joinder
Agreement;
NOW THEREFORE, [the undersigned] agrees as follows:
1. [the undersigned] hereby acknowledges receipt of the Credit
Agreement and the other Credit Documents.
2. [the undersigned] hereby agrees to be a Foreign Borrower under and
as defined in the Credit Agreement and to be bound by all the terms and
conditions of the Credit Agreement and the other Credit Documents applicable to
a Foreign Borrower.
Agreed to this ___ day of _______, ____.
[___________________]
By: _______________________
Name:
Title:
EXHIBIT J
FORM OF
LOCAL LENDER JOINDER AGREEMENT
LOCAL LENDER JOINDER AGREEMENT, dated as of the date set forth on
Schedule I hereto, made by the Local Lender designated on Schedule I hereto (the
"LOCAL LENDER") pursuant to the Amended and Restated Credit Agreement, dated as
of March 5, 1998 (as amended, restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT") among the Company, the Foreign Borrowers
from time to time parties thereto, the institutions from time to time parties
thereto as lenders (the "LENDERS"), the Collateral Agent and Credit Suisse First
Boston, in its capacity as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") (terms defined in the Credit Agreement and not otherwise
defined herein are used herein with the meanings ascribed thereto in the Credit
Agreement).
For good and valid consideration, the sufficiency of which hereby is
acknowledged, the undersigned hereby agrees that it shall serve as a "Local
Lender" under the Credit Agreement upon the terms and subject to the conditions
set forth therein.
The undersigned hereby:
(a) represents and warrants that it is legally authorized to enter into this
Local Lender Joinder Agreement;
(b) confirms that it has received a copy of the Credit Agreement and the other
Credit Documents relevant to it; and
(c) agrees that it will (i) be bound by the provisions of the Credit Agreement
and each other Credit Document, in each case, applicable to it as a Local
Lender and (ii) perform all obligations which are required to be performed
by it as a Local Lender pursuant to the Credit Agreement and each other
Credit Document.
From and after the Effective Date set forth on Schedule I hereto, the
undersigned shall (a) be a "Local Lender" with respect to the Optional Currency
set forth on Schedule I hereto for all purposes under the Credit Documents and
(b) have the rights and obligations of a Local Lender thereunder and under the
other Credit Documents and (c) be bound by the provisions of the Credit
Documents.
THIS LOCAL LENDER JOINDER AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Local Lender has caused this Local Lender
Joinder Agreement to be executed on Schedule I hereto by its duly authorized
officer as of the date set forth on Schedule I hereto.
SCHEDULE I
TO
LOCAL LENDER JOINDER AGREEMENT
RELATING TO
THE AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF MARCH [__], 1998 (AS
AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME) AMONG
THE COMPANY, THE FOREIGN BORROWERS FROM TIME TO TIME PARTIES THERETO, THE
INSTITUTIONS FROM TIME TO TIME PARTIES THERETO AS LENDERS, THE COLLATERAL AGENT
AND CREDIT SUISSE FIRST BOSTON, IN ITS CAPACITY AS ADMINISTRATIVE AGENT
===============================================================================
DATE OF LOCAL LENDER JOINDER AGREEMENT:
NAME OF DESIGNATED LOCAL LENDER:
JURISDICTION:
OPTIONAL CURRENCY:
FOREIGN BORROWER SUBLIMIT: US$
NAME OF DESIGNATED ADDITIONAL BORROWER:
EFFECTIVE DATE OF LOCAL LENDER JOINDER AGREEMENT:
[NAME OF LOCAL LENDER]
By:____________________________
Title:
ACKNOWLEDGED AND AGREED:
CREDIT SUISSE FIRST BOSTON, as Administrative Agent
By:___________________________
Title: