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EXHIBIT A
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CREDIT AGREEMENT
by and among
GENCORP INC.
as Borrower,
BANK OF AMERICA, N.A.,
as Agent and as Lender
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
September 30, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
THE BANK OF NEW YORK
and
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents
and
ABN AMRO BANK, N.V.,
BANK ONE, N.A.
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
and
UNION BANK OF CALIFORNIA
as Co-Agents
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1. Definitions.......................................................................2
1.2. Rules of Interpretation..........................................................28
ARTICLE II
The Credit Facilities
2.1. Revolving Loans..................................................................30
2.2. Use of Proceeds..................................................................32
2.3. Notes............................................................................32
2.4. Swing Line.......................................................................32
ARTICLE III
Letters of Credit
3.1. Letters of Credit................................................................34
3.2. Reimbursement and Participations.................................................34
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1 Interest Rate Options............................................................38
4.2 Conversions and Elections of Subsequent Interest Periods.........................38
4.3 Payment of Interest..............................................................39
4.4 Prepayments of Eurodollar Rate Loans.............................................39
4.5 Manner of Payment................................................................39
4.6 Fees.............................................................................40
4.7 Pro Rata Payments................................................................40
4.8 Computation of Rates and Fees....................................................41
4.9 Deficiency Advances; Failure to Purchase Participations..........................41
4.10 Intraday Funding.................................................................41
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ARTICLE V
Security
5.1. Security.........................................................................43
5.2. Further Assurances...............................................................43
5.3. Information Regarding Collateral.................................................44
ARTICLE VI
Change in Circumstances
6.1. Increased Cost and Reduced Return................................................45
6.2. Limitation on Types of Loans.....................................................46
6.3. Illegality.......................................................................46
6.4. Treatment of Affected Loans......................................................47
6.5. Compensation.....................................................................47
6.6. Taxes............................................................................48
ARTICLE VII
Conditions to Making Loans and Issuing Letters of Credit
7.1. Conditions of Initial Advance....................................................50
7.2. Conditions of Revolving Loans and Letter of Credit...............................53
ARTICLE VIII
Representations and Warranties
8.1. Organization and Authority.......................................................55
8.2. Transaction Documents. .........................................................55
8.3. Solvency.........................................................................56
8.4. Subsidiaries and Stockholders....................................................56
8.5. Ownership Interests..............................................................56
8.6. Financial Condition..............................................................56
8.7. Title to Properties..............................................................57
8.8. Taxes............................................................................57
8.9. Other Agreements.................................................................57
8.10. Litigation.......................................................................57
8.11. Margin Stock.....................................................................58
8.12. Investment Company...............................................................58
8.13. Patents, Etc.....................................................................58
8.14. No Untrue Statement..............................................................58
8.15. No Consents, Etc.................................................................58
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8.16. Employee Benefit Plans...........................................................59
8.17. No Default.......................................................................60
8.18. Environmental Matters............................................................60
8.19. Employment Matters...............................................................61
8.20. RICO.............................................................................61
8.21. Fine Chemicals Patent............................................................61
8.22. Aerojet Settlement Agreement.....................................................61
8.23. Tax Treatment of Spinoff.........................................................61
8.24. Year 2000 Compliance. ..........................................................61
ARTICLE IX
Affirmative Covenants
9.1. Financial Reports, Etc...........................................................62
9.2. Maintain Properties..............................................................64
9.3. Existence, Qualification, Etc....................................................64
9.4. Regulations and Taxes............................................................64
9.5. Insurance........................................................................64
9.6. True Books.......................................................................64
9.7. Year 2000 Compliance.............................................................65
9.8. Right of Inspection..............................................................65
9.9. Observe all Laws.................................................................65
9.10. Governmental Licenses............................................................65
9.11. Covenants Extending to Other Persons.............................................65
9.12. Officer's Knowledge of Default...................................................65
9.13. Suits or Other Proceedings.......................................................65
9.14. Notice of Environmental Complaint or Condition...................................65
9.15. Environmental Compliance.........................................................66
9.16. Indemnification..................................................................66
9.17. Further Assurances...............................................................66
9.18. Employee Benefit Plans...........................................................67
9.19. Continued Operations.............................................................68
9.20. New Subsidiaries.................................................................68
ARTICLE X
Negative Covenants
10.1. Financial Covenants..............................................................71
(a) Consolidated Net Worth......................................................71
(b) Consolidated Leverage Ratio.................................................71
(c) Consolidated Fixed Charge Coverage Ratio....................................71
10.2. Acquisitions.....................................................................72
10.3. Liens............................................................................72
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10.4. Indebtedness.....................................................................73
10.5. Transfer of Assets...............................................................74
10.6. Investments......................................................................75
10.7. Merger or Consolidation..........................................................75
10.8. Restricted Payments..............................................................75
10.9. Transactions with Affiliates.....................................................76
10.10. Compliance with ERISA, the Code and Foreign Benefit Laws.........................76
10.11. Fiscal Year......................................................................77
10.12. Dissolution, etc.................................................................77
10.13. Limitations on Sales and Leasebacks..............................................77
10.14. Change in Control................................................................77
10.15. Rate Hedging Obligations.........................................................77
10.16. Negative Pledge Clauses..........................................................77
10.17. Prepayments, Etc. of Indebtedness................................................77
10.18. Aerojet Government Contracting Authority.........................................78
10.19. Amendments to Line of Business Transfer Documents and Spinoff
Documents........................................................................78
ARTICLE XI
Events of Default and Acceleration
11.1. Events of Default................................................................79
11.2. Agent to Act.....................................................................82
11.3. Cumulative Rights................................................................82
11.4. No Waiver........................................................................82
11.5. Allocation of Proceeds...........................................................83
ARTICLE XII
The Agent
12.1. Appointment, Powers, and Immunities..............................................84
12.2. Reliance by Agent................................................................84
12.3. Defaults.........................................................................85
12.4. Rights as Lender.................................................................85
12.5. Indemnification..................................................................85
12.6. Non-Reliance on Agent and Other Lenders..........................................86
12.7. Resignation of Agent.............................................................86
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ARTICLE XIII
Miscellaneous
13.1. Assignments and Participations...................................................87
13.2. Notices..........................................................................88
13.3. Right of Set-off; Adjustments....................................................90
13.4. Survival.........................................................................90
13.5. Expenses.........................................................................91
13.6. Amendments and Waivers...........................................................91
13.7. Counterparts.....................................................................91
13.8. Termination......................................................................91
13.9. Indemnification; Limitation of Liability.........................................92
13.10. Severability.....................................................................93
13.11. Entire Agreement.................................................................93
13.12. Agreement Controls...............................................................93
13.13. Usury Savings Clause.............................................................93
13.14. Payments.........................................................................94
13.15. Confidentiality..................................................................94
13.16. Special Funding Option...........................................................94
13.17. Governing Law; Waiver of Jury Trial..............................................96
EXHIBIT A Applicable Commitment Percentages.................................A-1
EXHIBIT B Form of Assignment and Acceptance.................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative....................................................C-1
EXHIBIT D-1 Form of Borrowing Notice..........................................D-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans......................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice............................E-1
EXHIBIT F-1 Form of Revolving Note..........................................F-1-1
EXHIBIT F-2 Form of Swing Line Note.........................................F-2-1
EXHIBIT G Form of Opinion of Borrower's Counsel.............................G-1
EXHIBIT H Compliance Certificate............................................H-1
EXHIBIT I Form of Facility Guaranty.........................................I-1
EXHIBIT J Form of Pledge Agreement..........................................J-1
EXHIBIT K Form of LC Account Agreement......................................K-1
Schedule 1.1 Existing Letters of Credit........................................S-1
Schedule 5.3 Information Regarding Collateral..................................S-2
Schedule 8.4 Subsidiaries and Investments in Other Persons.....................S-3
Schedule 8.6 Indebtedness......................................................S-4
Schedule 8.7 Liens.............................................................S-5
Schedule 8.8 Tax Matters.......................................................S-6
Schedule 8.10 Litigation........................................................S-7
Schedule 8.18 Environmental Matters.............................................S-8
Schedule 8.19 Employment Matters................................................S-9
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 30, 1999 (the
"Agreement"), is made by and among GENCORP INC., an Ohio corporation having its
principal place of business in Rancho Cordova, California ("GenCorp" or the
"Borrower"), BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, in its capacity as a Lender ("Bank
of America"), and each other financial institution executing and delivering a
signature page hereto and each other financial institution which may hereafter
execute and deliver an instrument of assignment with respect to this Agreement
pursuant to SECTION 13.1 (hereinafter such financial institutions may be
referred to individually as a "Lender" or collectively as the "Lenders"), and
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, in its capacity as agent for the Lenders
(in such capacity, and together with any successor agent appointed in accordance
with the terms of SECTION 12.7, the "Agent");
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a revolving credit facility of up to $250,000,000, the proceeds of
which are to be used to pay off certain existing Indebtedness and for working
capital, capital expenditures, permitted acquisitions and other lawful corporate
purposes and which shall include a letter of credit facility of up to
$25,000,000 for the issuance of standby and commercial letters of credit and a
swing line facility of up to $10,000,000; and
WHEREAS, the Lenders are willing to make such revolving credit and
letter of credit facilities available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
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ARTICLE I
DEFINITIONS AND TERMS
1.1. DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or any material part of the assets of such Person or of a line or lines
of business conducted by such Person.
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Aerojet" means Aerojet-General Corporation, an Ohio
corporation.
"Aerojet Settlement Agreement" means that certain settlement
agreement by and between Aerojet and the federal government of the
United States, titled Modification No. 1 to the 29 November 1992
Settlement Agreement Between the United States and Aerojet- General
Corporation and effective as of November 30, 1998, pursuant to which
the federal government of the United States has agreed to recognize, as
allowable government contract costs, up to 88% of the environmental
site restoration costs (as defined therein) incurred by Aerojet.
"Affected Loans" and "Affected Type" have the meanings
therefor provided in SECTION 6.4.
"Affiliate" means any Person (other than a Subsidiary or
Employee Benefit Plan) (i) which directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common
control with the Borrower, (ii) which beneficially owns or holds 10% or
more of any class of the outstanding voting stock (calculated after
giving pro forma effect to the conversion of all issued and outstanding
capital stock convertible into voting stock of the Borrower) of the
Borrower, or (iii) 10% or more of any class of the outstanding voting
stock (or in the case of a Person which is not a corporation, 10% or
more of the equity interest) of which is beneficially owned or held by
the Borrower. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of
voting stock, by contract or otherwise.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction, with respect to the Revolving Credit Facility and
the Letter of Credit Facility the numerator
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of which shall be such Lender's Revolving Credit Commitment and the
denominator of which shall be the Total Revolving Credit Commitment,
which Applicable Commitment Percentage for each Lender as of the
Closing Date is as set forth in EXHIBIT A; PROVIDED that the Applicable
Commitment Percentage of each Lender shall be increased or decreased to
reflect any assignments to or by such Lender effected in accordance
with SECTION 13.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most recently ended as specified below:
APPLICABLE MARGIN
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TIER CONSOLIDATED LEVERAGE RATIO BASE RATE EURODOLLAR RATE
---- --------------------------- --------- ---------------
I Greater than 1.75 to 1.00 0.125% 1.625%
II Less than or equal to 1.75 to 1.00, 0% 1.375%
but greater than 1.00 to 1.00
III Less than or equal to 1.00 to 1.00, 0% 1.125%
but greater than 0.50 to 1.00
IV Less than or equal to 0.50 to 1.00 0% 0.875%
The Applicable Margin shall be established as of the last day of each
fiscal quarter of the Borrower (each, a "Determination Date"). Any
change in the Applicable Margin following each Determination Date shall
be determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to SECTION 9.1(a)(ii) and SECTION
9.1(b)(ii), subject to review and approval of such computations by the
Agent, and shall be effective commencing on the fifth Business Day
following the date such certificate is received until the fifth
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur; PROVIDED
HOWEVER, if the Borrower shall fail to deliver any such certificate
within the time period required by SECTION 9.1, then the Applicable
Margin shall be Tier I for Base Rate Loans and Tier I for Eurodollar
Rate Loans from the date such certificate was due until the appropriate
certificate is so delivered. Subject to the proviso in the preceding
sentence, from the Closing Date to the Determination Date as to which
the Borrower has delivered the certificate described above
demonstrating the Borrower's Consolidated Leverage Ratio for two
Complete Fiscal Quarters after the Spinoff (the "Fixed Margin Period"),
the Applicable Margin shall be either Tier I or Tier II for Base Rate
Loans and either Tier I or Tier II for Eurodollar Rate Loans, in each
case
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determined in accordance with the compliance certificate most recently
delivered to the Agent pursuant to SECTION 7.1(a)(x), SECTION
9.1(a)(ii) or SECTION 9.1(b)(ii).
"Applicable Unused Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most recently ended as specified below:
Applicable
Tier Consolidated Leverage Ratio Unused Fee
---- --------------------------- ----------
I Greater than 1.75 to 1.00 0.40%
II Less than or equal to 1.75 to 1.00, 0.35%
but greater than 1.00 to 1.00
III Less than or equal to 1.00 to 1.00, 0.30%
but greater than 0.50 to 1.00
IV Less than or equal to 0.50 to 1.00 0.25%
The Applicable Unused Fee shall be established at each Determination
Date. Any change in the Applicable Unused Fee following each
Determination Date shall be determined based upon the computations set
forth in the certificate furnished to the Agent pursuant to SECTION
9.1(a)(ii) and SECTION 9.1(b)(ii), subject to review and approval of
such computations by the Agent and shall be effective commencing on the
fifth Business Day following the date such certificate is received
until the fifth Business Day following the date on which a new
certificate is delivered or is required to be delivered, whichever
shall first occur; PROVIDED HOWEVER, if the Borrower shall fail to
deliver any such certificate within the time period required by SECTION
9.1, then the Applicable Unused Fee shall be Tier I from the date such
certificate was due until the appropriate certificate is so delivered.
Subject to the proviso in the preceding sentence, during the Fixed
Margin Period the Applicable Unused Fee shall be either Tier I or Tier
II, in each case determined in accordance with the compliance
certificate most recently delivered to the Agent pursuant to SECTION
7.1(a)(x), SECTION 9.1(a)(ii) or SECTION 9.1(b)(ii).
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank in connection with the issuance of
Letters of Credit.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of EXHIBIT B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to SECTION 13.1.
"Authorized Representative" means the Chief Financial Officer
of the Borrower, any Responsible Officer, or any other Person expressly
designated by a Responsible Officer or
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the Board of Directors of the Borrower (or the appropriate committee
thereof) as an Authorized Representative of the Borrower, as set forth
from time to time in a certificate in the form of EXHIBIT C.
"Bank of America" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or Federal Funds
Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay Bank of America in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
3750330690 or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of EXHIBITS D-1 AND D-2,
respectively.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York, North Carolina or California are
authorized or obligated by law, executive order or governmental decree
to be closed and, (ii) with respect to the selection, funding, interest
rate, payment, and Interest Period of any Eurodollar Rate Loan, any day
which is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York, Charlotte, North Carolina and Los Angeles, California.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the SUM of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the
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consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to SECTION 9.1(a) or (b), (ii) all Environmental
Liabilities, and all additions to reserves for Environmental
Liabilities, for such period that are required to be capitalized on the
consolidated financial statements of the Borrower, and (iii) with
respect to any Capital Lease entered into by the Borrower or its
Subsidiaries during such period, the present value of the lease
payments due under such Capital Lease over the term of such Capital
Lease applying a discount rate equal to the interest rate provided in
such lease (or in the absence of a stated interest rate, that rate used
in the preparation of the financial statements described in SECTION
9.1(a)), all the foregoing in accordance with GAAP applied on a
Consistent Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) either (A) becomes
the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act ), directly or indirectly, of Voting Securities
of the Borrower (or securities convertible into or
exchangeable for such Voting Securities) representing thirty
percent (30%) or more of the combined voting power of all
Voting Securities of the Borrower (on a fully diluted basis)
or (B) otherwise has the ability, directly or indirectly, to
elect a majority of the board of directors of the Borrower; or
(ii) during any period of up to 24 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority
of the board of directors of the Borrower, unless the
nomination for election by the Borrower's stockholders of each
new director of the Borrower was approved by a vote of at
least two-thirds of the directors of the Borrower still in
office who were directors of the Borrower at the beginning of
any such period.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in SECTION 7.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
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"Collateral" means, collectively, all property of the
Borrower, any Subsidiary or any other Person in which the Agent or any
Lender is granted a Lien as security for all or any portion of the
Obligations under any Security Instrument.
"Common Stock" means the common stock, par value $0.10 per
share, of the Borrower.
"Complete Fiscal Quarter" means a full fiscal quarter of the
Borrower including the first and last days of such fiscal quarter.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower (as of the Closing
Date) referred to in SECTION 8.6(a).
"Consolidated Cash Interest Expense" means, with respect to
any period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries paid in cash, including without
limitation (i) all fees paid during such period and (ii) the portion of
any payments made in connection with Capital Leases allocable to
interest expense, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis.
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the SUM of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) taxes on income,
(iv) amortization, and (v) depreciation, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to the Borrower and its Subsidiaries for any Four-Quarter Period ending
on the date of computation thereof, the ratio of (i) Consolidated
EBITDA for such period less (without duplication) Capital Expenditures
for such period, to (ii) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to the
Borrower and its Subsidiaries for any Four-Quarter Period ending on the
date of computation thereof, the SUM of, without duplication, (i)
Consolidated Cash Interest Expense and (ii) all dividends and other
distributions (other than distributions in the form of capital stock of
the Borrower) paid during such period (regardless of when declared) on
any shares of capital stock of the Borrower then outstanding, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap Agreement) payable in
connection with the incurrence of Indebtedness
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to the extent included in gross interest expense and (iii) the portion
of any payments made in connection with Capital Leases allocable to
interest expense, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis.
"Consolidated Leverage Ratio"means, as of the date of
computation thereof, the ratio of (i) Consolidated Total Funded Debt
(determined as at such date) to (ii) Consolidated EBITDA (for the
Four-Quarter Period ending on (or most recently ended prior to) such
date).
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income and all Environmental Liabilities and all additions to
reserves for Environmental Liabilities for such period that are
required to be expensed, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis; but excluding (for
all purposes other than compliance with SECTION 10.1(a) hereof) as
income: (i) net gains on the sale, conversion or other disposition of
capital assets, (ii) net gains on the acquisition, retirement, sale or
other disposition of capital stock and other securities of the Borrower
or its Subsidiaries, (iii) net gains on the collection of proceeds of
life insurance policies, (iv) any write-up of any asset, and (v) any
other net gain or credit of an extraordinary nature as determined in
accordance with GAAP applied on a Consistent Basis; provided, however,
that Consolidated Net Income shall be determined without giving effect
to FASB 133 Adjustments as may be required by GAAP.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, Consolidated Shareholders' Equity
minus (without duplication of deductions in respect of items already
deducted in arriving at surplus and retained earnings) all reserves
(other than contingency reserves not allocated to any particular
purpose), including without limitation reserves for depreciation,
depletion, amortization, obsolescence, environmental liabilities,
deferred income taxes, insurance and inventory valuation all as
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Shareholders' Equity"means, as of any date on
which the amount thereof is to be determined, the sum of the following
in respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding any upward adjustment after the
Closing Date due to revaluation of assets): (i) the amount of issued
and outstanding share capital, plus (ii) the amount of additional
paid-in capital and retained earnings (or, in the case of a deficit,
minus the amount of such deficit), plus (iii) the amount of any foreign
currency translation adjustment (if positive, or, if negative, minus
the amount of such translation adjustment), minus (iv) the amount of
any treasury stock, all as determined in accordance with GAAP applied
on a Consistent Basis.
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"Consolidated Total Assets" means, as of any date on which the
amount thereof is to be determined, the net book value of all assets of
the Borrower and its Subsidiaries as determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Funded Debt" means all Indebtedness for
Money Borrowed of the Borrower and its Subsidiaries, all determined on
a consolidated basis.
"Contingent Obligation" of any Person means all contingent
liabilities required to be included in the financial statements, or
disclosed in the footnotes thereto, of such Person in accordance with
GAAP applied on a Consistent Basis, including Statement No. 5 of the
Financial Accounting Standards Board, all Rate Hedging Obligations and
any obligation of such Person guaranteeing or in effect guaranteeing
any Indebtedness, dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any Lien on any property or
assets of such Person to secure payment of such Indebtedness
or other obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of such
Indebtedness or such obligation of the primary obligor against
loss in respect thereof.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to SECTION 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to SECTION 4.2 of one Type of Loan into another
Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the SUM of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair
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market value of other property (excluding property described in clause
(i) and the unpaid principal amount of any debt instrument) given as
consideration, (iii) the amount (determined by using the face amount or
the amount payable at maturity, whichever is greater) of any
Indebtedness incurred, assumed or acquired by the Borrower or any
Subsidiary in connection with such Acquisition, (iv) all additional
purchase price amounts in the form of earnouts and other contingent
obligations that should be recorded on the financial statements of the
Borrower and its Subsidiaries in accordance with GAAP, (v) all amounts
paid in respect of covenants not to compete, consulting agreements that
should be recorded on financial statements of the Borrower and its
Subsidiaries in accordance with GAAP, and other affiliated contracts in
connection with such Acquisition, (vi) the aggregate fair market value
of all other consideration given by the Borrower or any Subsidiary in
connection with such Acquisition, and (vii) out of pocket transaction
costs for the services and expenses of attorneys, accountants and other
consultants incurred in effecting such transaction, and other similar
transaction costs so incurred. For purposes of determining the Cost of
Acquisition for any transaction, (A) the capital stock of the Borrower
shall be valued (I) in the case of capital stock that is then
designated as a national market system security by the National
Association of Securities Dealers, Inc. ("NASDAQ") or is listed on a
national securities exchange, the average of the last reported bid and
ask quotations or the last prices reported thereon, and (II) with
respect to any other shares of capital stock, as determined by the
Board of Directors of the Borrower and, if requested by the Agent,
determined to be a reasonable valuation by the independent public
accountants referred to in SECTION 9.1(a), (B) the capital stock of any
Subsidiary shall be valued as determined by the Board of Directors of
such Subsidiary and, if requested by the Agent, determined to be a
reasonable valuation by the independent public accountants referred to
in SECTION 9.1(a), and (C) with respect to any Acquisition accomplished
pursuant to the exercise of options or warrants or the conversion of
securities, the Cost of Acquisition shall include both the cost of
acquiring such option, warrant or convertible security as well as the
cost of exercise or conversion.
"Credit Parties" means, collectively, the Borrower, each
Guarantor and each other Person providing Collateral pursuant to any
Security Instrument.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
Swing Line Loans, Reimbursement Obligations, fees, and other amounts
payable in respect of Obligations or (except as otherwise expressly
provided therein) the obligations of any other Credit Party under any
of the other Loan Documents, a rate of interest per annum which shall
be two percent (2%) above the Base Rate and (iii) in any case, the
maximum rate permitted by applicable law, if lower.
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"Determination Date" has the meaning therefor provided in the
definition of "Applicable Margin".
"Direct Foreign Subsidiary" means a Subsidiary other than a
Domestic Subsidiary a majority of whose Voting Securities, or a
majority of whose Subsidiary Securities, are owned by the Borrower or a
Domestic Subsidiary.
"Distribution Agreement" means the Distribution Agreement
dated as of September 30, 1999 between the Borrower and OMNOVA
providing for the Line of Business Transfer and other related matters.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with SECTION 13.1, the Borrower,
in each case such approval not to be unreasonably withheld (provided
that the incurrence by the Borrower of additional costs pursuant to
SECTION 6.6 as a result of such assignment shall constitute a
reasonable basis for withholding such consent) or delayed by the
Borrower and such approval to be deemed given by the Borrower (in the
absence of notice to the contrary, effective upon receipt) within two
Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower; PROVIDED, HOWEVER,
that neither the Borrower nor an affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in Dollars in the United
States of America, expressed to mature not later than 92 days
following the date of issuance thereof and rated in an
investment grade rating category by S&P and ▇▇▇▇▇'▇;
(c) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
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of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated "A-"
or better by S&P or "A" or better by ▇▇▇▇▇'▇;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P;
(h) tax-exempt or taxable adjustable rate preferred
stock issued by a Person having a rating of its long term
unsecured debt of "A" or better by S&P or "A- 2" or better by
▇▇▇▇▇'▇; and
(i) asset-backed remarketable certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by ▇▇▇▇▇'▇.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (A) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is assumed by the Borrower or
any of its ERISA Affiliates, or any Subsidiary in connection with any
Acquisition or (B) has at any time within the previous six (6) years
been maintained by the Borrower for the employees of the Borrower, any
current or former ERISA Affiliate, or any Subsidiary and (ii) any plan,
arrangement, understanding or scheme maintained by the Borrower or any
Subsidiary that provides retirement, deferred compensation, employee or
retiree medical or life insurance, severance benefits or any other
benefit covering any employee or former employee and which is
administered under any Foreign Benefit Law or regulated by any
Governmental Authority other than the United States of America.
"Employee Matters Agreement" means the Agreement on Employee
Matters dated as of September 30, 1999 between the Borrower and OMNOVA
providing for the treatment of employee benefit matters and other
compensation arrangements for former and current employees of the
Borrower and its Subsidiaries.
"Environmental Laws" means, collectively, any (i) federal,
state, local or foreign laws, regulations, rules or ordinances, or (ii)
orders or decrees that have been issued against the Borrower or any
Subsidiary, in either case, regulating or concerning the handling,
generation, transportation, release, disposal and discharge of
materials into the environment and the protection or cleanup of the
environment, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended; the Superfund Amendments and Reauthorization Act of 1986, as
amended; the
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Resource Conservation and Recovery Act, as amended; the Toxic
Substances Control Act, as amended; the Clean Air Act, as amended; and
the Clean Water Act, as amended; together with all regulations
promulgated thereto.
"Environmental Liabilities" means those expenses and
capitalized costs incurred by the Borrower and its Subsidiaries in
connection with environmental remediation or comparable obligations,
including without limitation all expenses and capitalized costs
incurred by the Borrower or any Subsidiary as a "potentially
responsible party" with respect to any environmental liabilities, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Environmental Reserves" means, at any time of computation
thereof, the reserves for Environmental Liabilities which have been, or
(if greater) are required to be, recorded on the consolidated balance
sheet of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
-----------------------------
Rate 1- Reserve Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in SECTION 11.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Letters of Credit" means those letters of credit set
forth on SCHEDULE 1.1 hereto, each of which letters of credit shall
have, as of the Closing Date, Bank of America or another Lender as the
Issuing Bank and shall become Letters of Credit hereunder.
"Existing Syndicated Credit Agreement" means that certain
Credit Agreement dated as of May 17, 1996, as amended, modified,
restated or amended and restated to the Closing
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Date, by and among the Borrower, NationsBank, N.A. (predecessor in
interest to Bank of America), as agent and a lender, and the other
lenders from time to time party thereto.
"Existing Syndicated Indebtedness" means the Indebtedness for
Money Borrowed of the Borrower in the aggregate principal amount of
approximately $188,000,000 and in no event to exceed $225,000,000
outstanding as of the Closing Date under the Existing Syndicated Credit
Agreement.
"Facility Guaranty" means each Guaranty Agreement
substantially in the form of EXHIBIT I between one or more Guarantors
and the Agent for the benefit of the Agent and the Lenders, delivered
as of the Closing Date and otherwise pursuant to SECTION 9.20, as the
same may be amended, modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and the Swing Line by payment
in full of all Revolving Credit Outstandings and Letter of Credit
Outstandings and Swing Line Outstandings, together with all accrued and
unpaid interest thereon, except for the undrawn portion of Letters of
Credit as have been fully cash collateralized in a manner consistent
with the terms of SECTION 11.1(B), (b) all Swap Agreements shall have
been terminated, expired or cash collateralized, (c) all Revolving
Credit Commitments and Letter of Credit Commitments shall have
terminated or expired, and (d) the Borrower shall have fully, finally
and irrevocably paid and satisfied in full all Obligations (other than
Obligations consisting of continuing indemnities and other Contingent
Obligations of the Borrower or any Guarantor that may be owing to the
Lenders pursuant to the Loan Documents and expressly survive
termination of this Agreement).
"FASB 133 Adjustments" means entries on or adjustments to any
balance sheet or statement of income in respect of derivatives or
hedging instruments as required or permitted by Statement of Financial
Accounting Standards No. 133.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; PROVIDED
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fine Chemicals" means Aerojet Fine Chemicals, L.L.C.
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"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on December 1 of each calendar
year and ending on November 30 of the subsequent calendar year.
"Fixed Margin Period" shall have the meaning given to such
term in the definition of "Applicable Margin".
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries on a consolidated
basis, taken together as one accounting period; PROVIDED, HOWEVER, (i)
for each of the first three fiscal quarters ending after the Closing
Date, the Four-Quarter Period ending on such date shall include so many
of the most recent fiscal quarterly periods of the Borrower reflected
in the Historical Unaudited Quarterly Statements as shall be necessary
to result in a period of four full consecutive fiscal quarters, (ii) to
the extent the first fiscal quarter ending after the Closing Date is
included in any Four- Quarter Period for the purposes of determining
financial or accounting matters hereunder, all calculations with
respect to such fiscal quarter shall be made on a pro forma basis
giving effect to the Line of Business Transfer, the Spinoff and the
Penn Racquet Sports Asset Disposition as of the first day of such
fiscal quarter, (iii) the assets, liabilities and results of operations
reflected in such Historical Unaudited Quarterly Statements shall be
deemed to be the sole assets, liabilities and results of operations of
the Borrower and its Subsidiaries for the purpose of making any
determination or computation as to financial or accounting matters
hereunder that includes any period of operations covered by the
Historical Unaudited Quarterly Statements, and (iv) for purposes of
computing the calculations required in the certificate to be delivered
in accordance with SECTION 7.1(a)(x) only, "Four-Quarter Period" shall
mean the three quarters of the Borrower reflected in the Historical
Unaudited Quarterly Statements, annualized to constitute four quarters
of the Borrower.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles at such time applicable in the
United States of America, being those principles of accounting set
forth in pronouncements of the Accounting Principles Board, the
Financial Accounting Standards Board, the American Institute of
Certified Public Accountants, or which have other substantial
authoritative support; PROVIDED, HOWEVER, with respect to the financial
statements of any Borrower or any Subsidiary organized under the laws
of Canada or a province thereof, GAAP shall mean the accounting
principles generally accepted in Canada as recommended in the Canadian
Institute of Chartered Accountants Handbook and applied on a consistent
basis.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
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"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guarantors" means, at any date, the Domestic Subsidiaries in
existence at the Closing Date together with each additional Domestic
Subsidiary required to execute and deliver a Facility Guaranty by such
date pursuant to SECTION 9.20.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Historical Unaudited Quarterly Statements" means the
historical unaudited pro forma condensed consolidated balance sheet of
the Borrower and its Subsidiaries as at February 28, 1999 and the
related unaudited pro forma condensed consolidated statements of income
for the three months ended February 28, 1999, the unaudited pro forma
condensed statements of income for the years ended November 30, 1998,
November 30, 1997 and November 30, 1996 (all as found on pages 41
through 50 of the Borrower's proxy statement dated July 2, 1999), and
the historical unaudited pro forma condensed consolidated balance
sheets for the fiscal quarter August 31, 1999 and statements of income
for the fiscal quarters ended May 31, 1999 and August 31, 1999, in each
case prepared by the Borrower and previously furnished to the Agent
reflecting the assets, liabilities and results of operations of the
Retained Business.
"Indebtedness" means as to any Person, without duplication,
(a) all Indebtedness for Money Borrowed of such Person, (b) all Rate
Hedging Obligations of such Person, (c) all indebtedness secured by any
Lien on any property or asset owned or held by such Person regardless
or whether the indebtedness secured thereby shall have been assumed by
such Person or is non-recourse to the credit of such Person, and (d)
all Contingent Obligations of such Person.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, the deferred purchase price of any property or services, and
payment and reimbursement obligations in respect of surety bonds,
letters of credit, and bankers' acceptances, whether or not matured,
evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money (including reimbursement agreements
and conditional sales or similar title retention agreements), other
than trade payables and accrued expenses incurred in the ordinary
course of business.
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"Initial Pledged Interests" means, collectively as of the
Closing Date, (i) 65% of the Voting Securities of each Material Foreign
Subsidiary, (ii) 100% of the other Subsidiary Securities of each
Material Foreign Subsidiary, and (iii) all of the Subsidiary Securities
of all Material Domestic Subsidiaries.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period, PROVIDED, HOWEVER; if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one, two, three or six months thereafter as notified to the Agent
by the Authorized Representative in accordance with the terms hereof;
PROVIDED that,
(i) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day); and
(ii) any Interest Period which 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.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of EXHIBIT E.
"IRS Ruling Letter" has the meaning therefor provided in
SECTION 7.1(a)(xxi).
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"Issuing Bank" means initially Bank of America and each other
Lender issuing any of the Existing Letters of Credit, and thereafter
any Lender which is successor as issuer of Letters of Credit under
ARTICLE III.
"LC Account Agreement" means the LC Account Agreement dated as
of the Closing Date between the Borrower and the Agent, as amended,
modified or supplemented from time to time, in the form of EXHIBIT K.
"Lending Party" means, collectively, the Agent and each
Lender.
"Letter of Credit" means the Existing Letters of Credit and
each standby or commercial letter of credit issued by the Issuing Bank
pursuant to ARTICLE III hereof for the account of the Borrower in favor
of a Person advancing credit or securing an obligation on behalf of the
Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
ARTICLE III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment minus outstanding Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Line of Business Transfer" means the transfer of the
Transferred Business to OMNOVA by the Borrower on the Closing Date
immediately prior to the closing of the Revolving Credit Facility.
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"Line of Business Transfer Documents" means all documentation
(including all schedules and exhibits thereto) relating to the Line of
Business Transfer, including without limitation the Distribution
Agreement.
"Loans" means, collectively, the Swing Line Loan and the
Revolving Loans.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties, the LC Account Agreement, the
Applications and Agreements for Letter of Credit, and all other
instruments and documents heretofore or hereafter executed or delivered
to or in favor of any Lender or the Agent in connection with the Loans
made and transactions contemplated under this Agreement, as the same
may be amended, supplemented or replaced from the time to time.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, or condition, financial or
otherwise, of Borrower and its Subsidiaries, taken as a whole, (ii) the
ability of any Credit Party to pay or perform its respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the Agent or any
Lender under any Loan Document or the validity, legality or
enforceability thereof.
"Material Domestic Subsidiary" means any Domestic Subsidiary
that is a Material Subsidiary.
"Material Foreign Subsidiary" means any Direct Foreign
Subsidiary that is a Material Subsidiary.
"Material Subsidiary" means any direct or indirect Subsidiary
of the Borrower which (i) has total assets equal to or greater than
7.5% of Consolidated Total Assets (calculated as of the most recent
fiscal period with respect to which the Agent shall have received
financial statements required to be delivered pursuant to SECTIONS
9.1(a) or (b) (or if prior to delivery of any financial statements
pursuant to such Sections, then calculated with respect to the Fiscal
Year end financial statements referenced in SECTION 8.6) (the "Required
Financial Information")) or (ii) has income equal to or greater than
7.5% of Consolidated Net Income (calculated for the most recent period
for which the Agent has received the Required Financial Information);
PROVIDED, HOWEVER, that notwithstanding the foregoing, the term
"Material Subsidiary" shall mean each of those Subsidiaries that
together with the Borrower and each other Material Subsidiary have
assets equal to not less than 90% of Consolidated Total Assets
(calculated as described above) and net income of not less than 90% of
Consolidated Net Income (calculated as described above); PROVIDED
FURTHER that if more than one combination of Subsidiaries satisfies
such threshold, then those Subsidiaries so determined to be "Material
Subsidiaries" shall be specified by the Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
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"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"New Subsidiary"shall have the meaning given to such term in
SECTION 9.20 hereof.
"Notes" means, collectively, the Swing Line Note and the
Revolving Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the payment of
principal and interest on the Loans as evidenced by the Notes, (ii) the
payment of Reimbursement Obligations and otherwise in respect of the
Letters of Credit, (iii) the payment and performance of all liabilities
of Borrower to any Lender (or any affiliate of any Lender) which arise
under a Swap Agreement, and (iv) the payment and performance of all
other obligations, liabilities and Indebtedness of the Borrower to the
Lenders, the Agent or BAS hereunder, under any one or more of the other
Loan Documents or with respect to the Loans.
"OMNOVA" means OMNOVA Solutions, Inc.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings and Revolving Credit
Outstandings on such date.
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"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof, and (ii) with
respect to any Lender (other than Bank of America) and a Swing Line
Loan, the extension of credit represented by the participation of such
Lender hereunder in the liability of Bank of America in respect of a
Swing Line Loan made by Bank of America in accordance with the terms
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Penn Racquet Sports Asset Disposition" means the disposition
by the Borrower on April 30, 1999 of the assets constituting the Penn
Racquet Sports division of the Borrower.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time within the previous six (6) years been maintained by the
Borrower for the employees of the Borrower or any current or former
ERISA Affiliate.
"Permitted Liens" shall have the meaning given to such term in
SECTION 10.3 hereof.
"Permitted Acquisition" means an Acquisition with respect to
which (i) the Person to be (or whose assets are to be) acquired does
not oppose such Acquisition and the line or lines of business of the
Person to be acquired are substantially the same as one or more line or
lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing
either immediately prior to or immediately after giving effect to such
Acquisition, (iii) the Borrower shall have furnished to the Agent (A)
pro forma historical financial statements as of the end of the most
recently completed Fiscal Year of the Borrower and most recent interim
fiscal quarter, if applicable, giving effect to such Acquisition and
(B) a certificate in the form of EXHIBIT H prepared on a historical pro
forma basis as of the most recent date for which financial statements
have been furnished pursuant to SECTION 8.6(a) or SECTION 9.1(a) OR (b)
giving effect to such Acquisition, which certificate shall demonstrate
that no Default or Event of Default would exist immediately after
giving effect thereto, (iv) the Person acquired shall be a wholly-owned
Subsidiary, or be merged into the Borrower or a wholly-owned
Subsidiary, immediately upon consummation of the Acquisition (or if
assets are being acquired, the acquiror shall be the Borrower or a
wholly-owned Subsidiary), and (v) if the Consolidated Leverage Ratio of
the Borrower and its Subsidiaries after giving pro forma effect to such
Acquisition shall be greater than 1.00 to 1.00, then the Cost of
Acquisition with respect to such Acquisition shall not exceed
$50,000,000.
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"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Securities Pledge Agreement
dated as of the date hereof between the Borrower and the Agent for the
benefit of the Agent and the Lenders, (ii) that certain Securities
Pledge Agreement dated as of the date hereof among certain Subsidiaries
and the Agent for the benefit of the Agent and the Lenders, (iii) any
additional Securities Pledge Agreement delivered to the Agent pursuant
to SECTIONS 5.1 or 9.20, and (iv) with respect to any Subsidiary
Securities issued by a Direct Foreign Subsidiary, any additional or
substitute charge, agreement, document, instrument or conveyance, in
form and substance acceptable to the Agent, conferring under applicable
foreign law upon the Agent for the benefit of the Agent and the Lenders
a Lien upon such Subsidiary Securities as are owned by the borrower or
any Domestic Subsidiary, in each case as hereafter amended,
supplemented (including by Pledge Agreement Supplement) or amended and
restated from time to time.
"Pledge Agreement Supplement" means, with respect to each
Pledge Agreement, the Pledge Agreement Supplement in the form affixed
as an Exhibit to such Pledge Agreement.
"Pledged Interests" means, collectively, the Initial Pledged
Interests and all other Subsidiary Securities of a Material Subsidiary
that are from time to time required to be pledged as Collateral
pursuant to ARTICLE V, SECTION 9.20 or the terms of any Pledge
Agreement (which shall include (i) 65% of the Voting Securities of each
Material Foreign Subsidiary, (ii) 100% of the other Subsidiary
Securities of each Material Foreign Subsidiary, and (iii) all of the
Subsidiary Securities of all Material Domestic Subsidiaries).
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due, and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
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Attention: Agency Services, or such other office and address as the
Agent may from time to time designate.
"Proxy Statement" means the definitive proxy statement first
mailed by the Borrower to its shareholders on or about July 7, 1999
describing the Spinoff and soliciting such shareholder vote to proceed
therewith.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing.
"Registrar" means, with respect to any Subsidiary Securities,
any Person authorized or obligated to maintain records of the
registration of ownership or transfer of ownership of interests in such
Subsidiary Securities, and in the event no such Person shall have been
expressly designated by the related Subsidiary, shall mean (i) as to
any corporation or limited liability company, its Secretary (or
comparable official), and (ii) as to any partnership, its general
partner (or managing general partner if one shall have been appointed).
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to SECTION 2.1(c)(iii)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
"Related LC Documents" has the meaning therefor provided in
SECTION 3.2(i)(i).
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose unsecured and unsubordinated
debt obligations or commercial paper are rated "A" by either of S&P or
▇▇▇▇▇'▇ or "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇.
"Required Financial Information" shall have the meaning given
to such term in the definition of "Material Subsidiary".
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"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating more than 50% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "CREDIT EXPOSURE"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to its
Revolving Credit Commitment, and (b) following the occurrence and
during the continuance of an Event of Default, to the sum of (i) the
aggregate principal amount of such Lender's Applicable Commitment
Percentage of Revolving Credit Outstandings plus (ii) the amount of
such Lender's Applicable Commitment Percentage of Letter of Credit
Outstandings and Swing Line Outstandings; PROVIDED that, for the
purpose of this definition only, (A) if any Lender shall have failed to
fund its Applicable Commitment Percentage of any Advance, then the
Revolving Credit Commitment of such Lender shall be deemed reduced by
the amount it so failed to fund for so long as such failure shall
continue and such Lender's Credit Exposure attributable to such failure
shall be deemed held by any Lender making more than its Applicable
Commitment Percentage of such Advance to the extent it covers such
failure, (B) if any Lender shall have failed to pay to the Issuing Bank
upon demand its Applicable Commitment Percentage of any drawing under
any Letter of Credit resulting in an outstanding Reimbursement
Obligation (whether by funding its Participation therein or otherwise),
such Lender's Credit Exposure attributable to all Letter of Credit
Outstandings shall be deemed to be held by the Issuing Bank until such
Lender shall pay such deficiency amount to the Issuing Bank together
with interest thereon as provided in SECTION 4.9, and (C) if any Lender
shall have failed to pay to Bank of America on demand its Applicable
Commitment Percentage of any Swing Line Loan (whether by funding its
Participation therein or otherwise), such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held
by Bank of America until such Lender shall pay such deficiency amount
to Bank of America together with interest thereon as provided in
SECTION 4.9.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Responsible Officer" means the Chief Executive Officer, the
Chief Financial Officer, any Senior Vice President, or the Treasurer of
the Borrower.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any Subsidiary Securities of
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its Subsidiaries (other than those payable or distributable solely to
the Borrower) now or hereafter outstanding, except a dividend payable
solely in shares of a class of stock to the holders of that class; (b)
any redemption, conversion, exchange, retirement or similar payment,
purchase or other acquisition for value, direct or indirect, of any
shares of any class of stock of Borrower or any of its Subsidiaries
(other than those payable or distributable solely to the Borrower) now
or hereafter outstanding; (c) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of Borrower or any Subsidiary
Securities of its Subsidiaries now or hereafter outstanding; (d) any
issuance and sale of Subsidiary Securities of any Subsidiary of the
Borrower (or any option, warrant or right to acquire such stock) other
than to the Borrower; and (e) any prepayment of principal, premium,
interest or fees on any Subordinated Debt.
"Retained Business" means the line or lines of business of the
Borrower and its Subsidiaries retained by the Borrower and its
remaining Subsidiaries following the Line of Business Transfer,
including all business of the Borrower other than the Transferred
Business.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
SECTION 2.1 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to SECTION 11.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with SECTION 2.1.
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in SECTION 2.3 substantially in the form of EXHIBIT
F-1, with appropriate insertions as to amounts, dates and names of
Lenders.
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"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇.
"Security Instruments" means, collectively, the Pledge
Agreement and all other agreements (including control agreements),
instruments and other documents, whether now existing or hereafter in
effect, pursuant to which the Borrower or any Subsidiary shall grant or
convey to the Agent or the Lenders a Lien in, or any other Person shall
acknowledge any such Lien in, property as security for all or any
portion of the Obligations, as any of them may be amended, modified or
supplemented from time to time.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature (other than debts owed directly to
the Borrower or another Subsidiary); and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Special Distribution" means the dividend of approximately
$188,000,000 and in no event to exceed $225,000,000 paid on the Closing
Date, immediately following the Line of Business Transfer and the
effectiveness of this Agreement and immediately preceding the Spinoff,
by OMNOVA to the Borrower, the proceeds of which are to be used by the
Borrower to repay the Existing Syndicated Indebtedness substantially
simultaneously with the receipt thereof by the Borrower.
"Spinoff" means the special dividend of all outstanding shares
of capital stock of OMNOVA to the holders of the outstanding shares of
the Common Stock on a pro rata basis and on the basis of one share of
common stock of OMNOVA for each share of Common Stock, all as described
in the Proxy Statement.
"Spinoff Documents" means (i) the Proxy Statement, (ii) the
Registration Statement of OMNOVA on Form 10, including all amendments
thereto, initially filed on July 9, 1999 with the Securities and
Exchange Commission, and (iii) all other documentation (including all
schedules and exhibits thereto) relating to the Spinoff, including
without limitation the Employee Matters Agreement, the Transition
Services Agreement and the Tax Matters Agreement.
"Stated Termination Date" means September 30, 2004.
"Subordinated Debt" has the meaning therefor provided in
SECTION 10.4(f).
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"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
"Subsidiary Securities" means the shares of capital stock or
the other equity interests issued by or equity participations in any
Subsidiary, whether or not constituting a "security" under Article 8 of
the Uniform Commercial Code as in effect in any jurisdiction.
"Swap Agreement" means one or more agreements between the
Borrower and any Lender or any affiliate of any Lender with respect to
Indebtedness evidenced by any or all of the Notes, on terms mutually
acceptable to Borrower and such Person, which agreements create Rate
Hedging Obligations.
"Swing Line" means the revolving line of credit established by
Bank of America in favor of the Borrower pursuant to SECTION 2.4.
"Swing Line Loans" means loans made by Bank of America to the
Borrower pursuant to SECTION 2.4.
"Swing Line Note" means the promissory note of the Borrower
evidencing the Swing Line Loans executed and delivered to Bank of
America as provided in SECTION 2.3 substantially in the form of EXHIBIT
F-2.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Tax Matters Agreement" means the Tax Sharing Agreement dated
as of September 30, 1999 between the Borrower and OMNOVA providing for
matters regarding Federal, state, local and foreign tax liabilities for
periods prior to and including the effective date of the Spinoff.
"Taxes" has the meaning therefor provided in SECTION 6.6(a).
"Termination Event" means, other than the reorganization of
any Employee Benefit Plan in connection with the Spinoff or Line of
Business Transfer, (i) a "Reportable Event" described in Section 4043
of ERISA and the regulations issued thereunder (unless the notice
requirement has been waived by applicable regulation); or (ii) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA or was deemed such under Section 4062(e)
of ERISA; or (iii) the termination of a Pension Plan, the filing of a
notice of intent to terminate a Pension Plan or the treatment of a
Pension Plan amendment as a termination under Section 4041 of ERISA; or
(iv) the institution of proceedings to terminate a Pension Plan by the
PBGC; or (v) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (vi) the
partial or complete withdrawal of the
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Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA; or (x) any
event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in the termination of
such Employee Benefit Plan or the revocation of such Employee Benefit
Plan's authority to operate under the applicable Foreign Benefit Law.
"Total Letter of Credit Commitment" means an amount not to
exceed $25,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $250,000,000 from the Closing Date to the third anniversary
thereof, $225,000,000 from and including the third anniversary of the
Closing Date to the fourth anniversary thereof, and $200,000,000 from
and including the fourth anniversary of the Closing Date and
thereafter, in each case as reduced from time to time in accordance
with SECTION 2.1(e).
"Transaction Documents" means, collectively or individually as
the context may indicate, the Loan Documents, the Spinoff Documents and
the Line of Business Transfer Documents.
"Transferred Business" means the assets, liabilities and
operations of the Performance Chemicals and Decorative & Building
Products businesses of the Borrower and includes the GenCorp Technology
Center, corporate flight operations of the Borrower, the Borrower's
corporate headquarters building in Fairlawn, Ohio and the tangible and
intangible assets owned and leased for such businesses.
"Transition Services Agreement" means the Services and Support
Agreement dated as of September 30, 1999 between the Borrower and
OMNOVA providing for certain transitional administrative services and
for reimbursement of all direct and indirect costs of providing such
services.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Vehicle Sealing Sale" means the sale by the Borrower of all
or substantially all of the assets or the capital stock of Vehicle
Sealing, Inc. on terms and conditions satisfactory to the Agent.
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
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functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Year 2000 Compliant" means all computer applications of the
Borrower and all of its Subsidiaries that are material to the
Borrower's or any of its Subsidiaries' business and operations will on
a timely basis be able to perform properly date-sensitive functions
involving all dates on and after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications
used by the Borrower or any of its Subsidiaries, suppliers, vendors or
customers may be unable to recognize and perform properly
date-sensitive functions involving certain dates on and after January
1, 2000.
1.2. RULES OF INTERPRETATION.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the New York
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein
to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
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(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Los Angeles, California.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%",
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(k) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
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ARTICLE II
THE CREDIT FACILITIES
2.1. REVOLVING LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the Borrower under
the Revolving Credit Facility from time to time from the Closing Date until the
Revolving Credit Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower on any day determined by such Lender's Applicable
Commitment Percentage up to but not exceeding the Revolving Credit Commitment of
such Lender, PROVIDED, however, that the Lenders will not be required and shall
have no obligation to make any such Advance (i) so long as a Default or an Event
of Default has occurred and is continuing or (ii) if the Agent has accelerated
the maturity of any of the Notes as a result of an Event of Default; PROVIDED
further, however, that immediately after giving effect to each such Advance, the
amount of Revolving Credit Outstandings plus Letter of Credit Outstandings plus
Swing Line Outstandings shall not exceed the Total Revolving Credit Commitment.
Within such limits and subject to the other terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow under the Revolving
Credit Facility on a Business Day from the Closing Date until, but (as to
borrowings and reborrowings) not including, the Revolving Credit Termination
Date.
(b) AMOUNTS. Except as otherwise permitted by the Lenders from
time to time, the amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings shall not exceed at any time the Total
Revolving Credit Commitment, and, in the event there shall be outstanding any
such excess, the Borrower shall immediately make such payments and prepayments
as shall be necessary to comply with this restriction. Each Advance under the
Revolving Credit Facility, other than Base Rate Refunding Loans, shall be in an
amount of at least $5,000,000, and, if greater than $5,000,000, an integral
multiple of $1,000,000.
(c) ADVANCES. (i) An Authorized Representative shall give the
Agent (1) at least three (3) Business Days' irrevocable telephonic notice of
each Eurodollar Rate Loan (whether representing an additional borrowing or the
Continuation of a borrowing hereunder or the Conversion of a borrowing hereunder
from a Base Rate Loan to a Eurodollar Rate Loan) prior to 10:00 A.M. and (2)
irrevocable telephonic notice of each Base Rate Loan (other than Base Rate
Refunding Loans to the extent the same are effected without notice pursuant to
SECTION 2.1(c)(iii) and whether representing an additional borrowing hereunder
or the Conversion of borrowing hereunder from Eurodollar Rate Loans to Base Rate
Loans) prior to 10:30 A.M. on the day of such proposed Revolving Loan. Each such
notice shall be effective upon receipt by the Agent, shall specify the amount of
the borrowing, the type of Revolving Loan (Base Rate or Eurodollar Rate), the
date of borrowing and, if a Eurodollar Rate Loan, the Interest Period to be used
in the computation of interest. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice in the form of a
Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions but failure to provide such confirmation shall not affect
the validity of such telephonic notice. Notice of receipt of such Borrowing
Notice or Interest Rate Selection Notice, as the case may be, together with the
amount of each Lender's portion of an
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Advance requested thereunder, shall be provided by the Agent to each Lender by
telefacsimile transmission with reasonable promptness, but (provided the Agent
shall have received such notice by 10:00 A.M.) not later than 11:00 A.M. on the
same day as the Agent's receipt of such notice.
(ii) Not later than 12:00 noon on the date specified for each borrowing
under this SECTION 2.1, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make the amount of the Advance or Advances to
be made by it on such day available by wire transfer to the Agent in the amount
of its pro rata share, determined according to such Lender's Applicable
Commitment Percentage of the Revolving Loan or Revolving Loans to be made on
such day. Such wire transfer shall be directed to the Agent at the Principal
Office and shall be in the form of Dollars constituting immediately available
funds. The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower by delivery of
the proceeds thereof to the Borrower's Account or otherwise as shall be directed
in the applicable Borrowing Notice by the Authorized Representative and
reasonably acceptable to the Agent.
(iii) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Issuing Bank, and the Borrower
shall not immediately fully reimburse the Issuing Bank in respect of such
drawing from other funds available to the Borrower, (A) provided that the
conditions to making a Revolving Loan as herein provided shall then be
satisfied, the Reimbursement Obligation arising from such drawing shall be paid
to the Issuing Bank by the Agent without the requirement of notice to or from
the Borrower from immediately available funds which shall be advanced as a Base
Rate Refunding Loan to the Agent at its Principal Office by each Lender under
the Revolving Credit Facility in an amount equal to such Lender's Applicable
Commitment Percentage of such Reimbursement Obligation, and (B) if the
conditions to making a Revolving Loan as herein provided shall not then be
satisfied, each of the Lenders shall fund by payment to the Agent (for the
benefit of the Issuing Bank) at its Principal Office in immediately available
funds the purchase from the Issuing Bank of their respective Participations in
the related Reimbursement Obligation based on their respective Applicable
Commitment Percentages of the Total Letter of Credit Commitment. If a drawing is
presented under any Letter of Credit in accordance with the terms thereof and
the Borrower shall not immediately reimburse the Issuing Bank in respect
thereof, then notice of such drawing or payment shall be provided promptly by
the Issuing Bank to the Agent and the Agent shall provide notice to each Lender
by telephone or telefacsimile transmission. If notice to the Lenders of a
drawing under any Letter of Credit is given by the Agent at or before 10:00 A.M.
on any Business Day, each Lender shall either make a Base Rate Refunding Loan or
fund the purchase of its Participation as specified above in the amount of such
Lender's Applicable Commitment Percentage of such drawing or payment and shall
pay such amount to the Agent for the account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds before 12:00 noon
on the same Business Day. If such notice to the Lenders is given by the Agent
after 10:00 A.M. on any Business Day, each Lender shall either make such Base
Rate Refunding Loan or fund such purchase before 12:00 noon on the next
following Business Day.
(d) REPAYMENT OF REVOLVING LOANS The principal amount of each
Revolving Loan shall be due and payable to the Agent for the benefit of each
Lender in full on the Revolving Credit Termination Date, or earlier as
specifically provided herein. The principal amount of any Revolving Loan may be
prepaid in whole or in part on any Business Day, upon (A) at least three (3)
Business
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Days' irrevocable telephonic notice in the case of each Revolving Loan
that is a Eurodollar Rate Loan from an Authorized Representative (effective upon
receipt) to the Agent prior to 12:00 noon and (B) irrevocable telephonic notice
in the case of each Revolving Loan that is a Base Rate Loan from an Authorized
Representative (effective upon receipt) to the Agent prior to 12:00 noon on the
day of such proposed repayment. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice but failure to provide
such confirmation shall not effect the validity of such telephonic notice. All
prepayments of Revolving Loans made by the Borrower shall be in the amount of
$10,000,000 or such greater amount which is an integral multiple of $5,000,000,
or the amount equal to all Revolving Credit Outstandings, or such other amount
as necessary to comply with SECTION 2.1(b).
(e) REDUCTIONS. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Agent, effective upon receipt, to reduce the Total Revolving
Credit Commitment. The Agent shall give each Lender, within one (1) Business Day
of receipt of such notice, telefacsimile notice, or telephonic notice (confirmed
in writing), of such reduction. Each such reduction shall be in the aggregate
amount of $10,000,000 or such greater amount which is in an integral multiple of
$5,000,000, or the entire remaining Total Revolving Credit Commitment, and shall
permanently reduce the Total Revolving Credit Commitment. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by payment of the
Revolving Loans to the extent that the principal amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line Outstandings
exceeds the Total Revolving Credit Commitment after giving effect to such
reduction, together with accrued and unpaid interest on the amounts prepaid.
2.2. USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower to repay the
Existing Syndicated Indebtedness and to terminate the Existing Syndicated Credit
Agreement, for general working capital needs and other lawful corporate
purposes, including the making of Acquisitions and Capital Expenditures
permitted hereunder.
2.3. NOTES.
(a) REVOLVING NOTES. Revolving Loans made by each Lender shall be
evidenced by the Revolving Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Total Revolving
Credit Commitment, which Revolving Note shall be dated the Closing Date or a
later date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
(b) SWING LINE NOTE. The Swing Line Outstandings shall be evidenced by
a separate Swing Line Note payable to the order of the Bank of America in the
amount of the Swing Line, which Note shall be dated the Closing Date and shall
be duly completed, executed and delivered by the Borrower.
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2.4. SWING LINE. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, Bank of America shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. Bank of
America shall not be obligated to make any Swing Line Loan pursuant hereto (i)
if to the actual knowledge of Bank of America the Borrower is not in compliance
with all the conditions to the making of Revolving Loans set forth in this
Agreement, (ii) if after giving effect to such Swing Line Loan, the Swing Line
Outstandings exceed $10,000,000, or (iii) if after giving effect to such Swing
Line Loan, the sum of the Swing Line Outstandings, Revolving Credit Outstandings
and Letter of Credit Outstandings exceeds the Total Revolving Credit Commitment.
The Borrower may, subject to the conditions set forth in the preceding sentence,
borrow, repay and reborrow under this SECTION 2.4. Unless notified to the
contrary by Bank of America, borrowings under the Swing Line shall be made in
the minimum amount of $1,000,000 or, if greater, in amounts which are integral
multiples of $100,000, or in the amount necessary to effect a Base Rate
Refunding Loan, upon written request by telefacsimile transmission, effective
upon receipt, by an Authorized Representative of the Borrower made to Bank of
America not later than 12:00 noon on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the borrowing
and the date of borrowing, and shall be in the form of EXHIBIT D-2, with
appropriate insertions. Unless notified to the contrary by Bank of America, each
repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $100,000 or the aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the account
of Bank of America. Swing Line Loans shall bear interest solely at the Base Rate
or, if applicable, the Default Rate. All accrued and unpaid interest on Swing
Line Loans shall be payable, on the dates and in the manner provided in SECTION
4.3 with respect to interest on Base Rate Loans.
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from Bank of America a Participation therein in an amount
equal to that Lender's Applicable Commitment Percentage of such Swing Line Loan.
Upon demand made by Bank of America, each Lender shall, according to its
Applicable Commitment Percentage of such Swing Line Loan, promptly provide to
Bank of America its purchase price therefor in an amount equal to its
Participation therein. Any Advance made by a Lender pursuant to demand of Bank
of America of the purchase price of its Participation shall when made be deemed
to be (i) provided that the conditions to making Revolving Loans shall be
satisfied, a Base Rate Refunding Loan under SECTION 2.1, and (ii) in all other
cases, the funding by each Lender of the purchase price of its Participation in
such Swing Line Loan. The obligation of each Lender to so provide its purchase
price to Bank of America shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other occurrence or
event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to SECTION 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to Bank of America the amount necessary to repay such
Swing Line Outstandings (which Bank of America shall then apply to such
repayment) and credit any balance of the Advance in immediately available funds
in the manner directed by the Borrower pursuant to SECTION 2.1(c)(ii). The
proceeds of such Advances shall be paid to Bank of
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America for application to the Swing Line Outstandings and the Lenders shall
then be deemed to have made Loans in the amount of such Advances. The Swing Line
shall continue in effect until the Revolving Credit Termination Date, at which
time all Swing Line Outstandings and accrued interest thereon shall be due and
payable in full.
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ARTICLE III
LETTERS OF CREDIT
3.1. LETTERS OF CREDIT. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower Letters of Credit upon delivery to
the Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to the Issuing Bank; PROVIDED, that (i)
the Issuing Bank shall not be obligated to issue any Letter of Credit if it has
been notified by the Agent or has actual knowledge that a Default or Event of
Default has occurred and is continuing, (ii) the Letter of Credit Outstandings
shall not exceed the Total Letter of Credit Commitment and (iii) no Letter of
Credit shall be issued if, after giving effect thereto, Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing Line Outstandings
shall exceed the Total Revolving Credit Commitment. No Letter of Credit shall
have an expiry date (including all rights of the Borrower or any beneficiary
named in such Letter of Credit to require renewal) or payment date occurring
later than the seventh Business Day prior to the Stated Termination Date.
3.2. REIMBURSEMENT AND PARTICIPATIONS.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts required
to pay all drafts drawn or purporting to be drawn under the Letters of Credit
and all reasonable expenses incurred by the Issuing Bank in connection with the
Letters of Credit, and in any event and without demand to place in possession of
the Issuing Bank (which shall include Advances under the Revolving Credit
Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by
SECTION 2.4) sufficient funds to pay all debts and liabilities arising under any
Letter of Credit. The Issuing Bank agrees to give the Borrower prompt notice of
any request for a draw under a Letter of Credit. The Issuing Bank may charge any
account the Borrower may have with it for any and all amounts the Issuing Bank
pays under a Letter of Credit, plus charges and reasonable expenses as from time
to time agreed to by the Issuing Bank and the Borrower; provided that to the
extent permitted by SECTION 2.1(c)(iii) and SECTION 2.4, amounts shall be paid
pursuant to Advances under the Revolving Credit Facility or, if the Borrower
shall elect, by Swing Line Loans. The Borrower agrees to pay the Issuing Bank
interest on any Reimbursement Obligations not paid when due hereunder at the
Default Rate.
(b) In accordance with the provisions of SECTION 2.1(c), the
Issuing Bank shall notify the Agent of any drawing under any Letter of Credit
promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, or on the Closing Date in
the case of the Existing Letters of Credit, a Participation in the liability of
the Issuing Bank in respect of each Letter of Credit in an amount equal to such
Lender's Applicable Commitment Percentage of such liability, and to the extent
that the Borrower is obligated to pay the Issuing Bank under SECTION 3.2(a),
each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to the Issuing Bank, its Applicable Commitment Percentage of the
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liability of the Issuing Bank under such Letter of Credit in the manner and with
the effect provided in SECTION 2.1(c)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to SECTION 2.1(c)(iii)(B), such Lender shall,
automatically and without any further action on the part of the Issuing Bank or
such Lender, acquire a Participation in an amount equal to such payment
(excluding the portion thereof constituting interest accrued prior to the date
the Lender made its payment) in the related Reimbursement Obligation of the
Borrower. Each Lender's obligation to make payment to the Agent for the account
of the Issuing Bank pursuant to SECTION 2.1(c)(iii) and SECTION 3.2(c), and the
right of the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and shall be
made without any offset, abatement, withholding or reduction
whatsoever. In the event the Lenders have purchased Participations in any
Reimbursement Obligation as set forth above, then at any time payment (in fully
collected, immediately available funds) of such Reimbursement Obligation, in
whole or in part, is received by the Issuing Bank from the Borrower, the Issuing
Bank shall promptly pay to each Lender an amount equal to its Applicable
Commitment Percentage of such payment from the Borrower.
(e) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Agent a notice describing the aggregate
undrawn amount of all Letters of Credit at the end of such quarter. Upon the
request of any Lender from time to time, the Issuing Bank shall deliver to the
Agent, and the Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each Letter of Credit
outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in ARTICLE VII, be
subject to the conditions that such Letter of Credit be in such form and contain
such terms as shall be reasonably satisfactory to the Issuing Bank consistent
with the then current practices and procedures of the Issuing Bank with respect
to similar letters of credit, and the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letters of Credit as the
Issuing Bank shall have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and subject to the
Uniform Customs and Practice for Documentary Credits, 1993 revision,
International Chamber of Commerce Publication No. 500 or, if the Issuing Bank
shall elect by express reference in an affected Letter of Credit, the
International Chamber of Commerce International Standby Practices commonly
referred to as "ISP98", or any subsequent amendment or revision of either
thereof.
(g) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of Credit,
any drafts or other documents otherwise in order which may be signed or issued
by an administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney in fact or
other legal representative of a party who is authorized under such Letter of
Credit to draw or issue any drafts or other documents.
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(h) Without limiting the generality of the provisions of
SECTION 13.9, the Borrower hereby agrees to indemnify and hold harmless the
Issuing Bank, each other Lender and the Agent from and against any and all
claims and damages, losses, liabilities, reasonable costs and expenses which the
Issuing Bank, such other Lender or the Agent may incur (or which may be claimed
against the Issuing Bank, such other Lender or the Agent) by any Person by
reason of or in connection with the issuance or transfer of or payment or
failure to pay under any Letter of Credit; provided that the Borrower shall not
be required to indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, (i) caused by the willful misconduct or gross negligence of the
party to be indemnified or (ii) caused by the failure of the Issuing Bank to pay
under any Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree.
The indemnification and hold harmless provisions of this SECTION 3.2(h) shall
survive repayment of the Obligations, occurrence of the Revolving Credit
Termination Date, the Facility Termination Date and expiration or termination of
this Agreement.
(i) Without limiting Borrower's rights as set forth in SECTION
3.2(h), the obligation of the Borrower to immediately reimburse the Issuing Bank
for drawings made under Letters of Credit and the Issuing Bank's right to
receive such payment shall be absolute, unconditional and irrevocable, and such
obligations of the Borrower shall be performed strictly in accordance with the
terms of this Agreement and such Letters of Credit and the related Application
and Agreement for any Letter of Credit, under all circumstances whatsoever,
including the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
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(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations
under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
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ARTICLE IV
EURODOLLAR FUNDING, FEES, AND PAYMENT CONVENTIONS
4.1 INTEREST RATE OPTIONS. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans in accordance with
SECTIONS 2.1(c)(i) AND 4.2, as applicable; PROVIDED, HOWEVER, (a) there shall
not be outstanding at any one time Eurodollar Rate Loans having more than eight
(8) different Interest Periods, (b) each Eurodollar Rate Loan (including each
Conversion into and each Continuation as a Eurodollar Rate Loan) shall be in an
amount of $5,000,000 or, if greater than $5,000,000, an integral multiple of
$1,000,000, and (c) no Eurodollar Rate Loan shall have an Interest Period that
extends beyond the Stated Termination Date. If the Agent does not receive a
Borrowing Notice or an Interest Rate Selection Notice giving notice of election
of the duration of an Interest Period or of Conversion of any Loan to or
Continuation of a Loan as a Eurodollar Rate Loan by the time prescribed by
SECTIONS 2.1(c)(i) AND 4.2, as applicable, the Borrower shall be deemed to have
elected to obtain or Convert such Loan to (or Continue such Loan as) a Base Rate
Loan until the Borrower notifies the Agent in accordance with SECTION 4.2. The
Borrower shall not be entitled to elect to Continue any Loan as or Convert any
Loan into a Eurodollar Rate Loan if a Default or Event of Default shall have
occurred and be continuing.
4.2 CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth in the definition of "Interest Period" and in
SECTION 4.1 and ARTICLE VI, the Borrower may:
(a) upon delivery of telephonic notice to the Agent (which shall be
irrevocable) on or before 10:00 A.M. on any Business Day, Convert any Eurodollar
Rate Loan to a Base Rate Loan on the last day of the Interest Period for such
Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing, upon delivery of telephonic notice to the Agent (which shall
be irrevocable) on or before 10:00 A.M. three (3) Business Days' prior to the
date of such Conversion or Continuation:
(i) elect a subsequent Interest Period for any Eurodollar Rate
Loan to begin on the last day of the then current Interest Period for
such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate Loan on
any Business Day.
Each such notice shall be effective upon receipt by the Agent, shall specify the
amount of the Eurodollar Rate Loan affected, and, if a Continuation as or
Conversion into a Eurodollar Rate Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice in the form of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions but failure to provide such confirmation shall not affect the
validity of such telephonic notice. Notice of receipt of such Borrowing Notice
or Interest Rate Selection Notice, as the case may be, shall be provided
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by the Agent to each Lender by telefacsimile transmission with reasonable
promptness, but (provided the Agent shall have received such notice by 10:00
A.M.) not later than 12:00 noon on the same day as the Agent's receipt of such
notice. All such Continuations or Conversions of Loans shall be effected pro
rata based on the Applicable Commitment Percentages of the Lenders.
4.3 PAYMENT OF INTEREST. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Revolving Loan, commencing on
the first date of such Revolving Loan until such Revolving Loan shall be repaid,
at the applicable Base Rate or Eurodollar Rate as designated by the Borrower in
the related Borrowing Notice or Interest Rate Selection Notice or as otherwise
provided hereunder. Interest on each Revolving Loan shall be paid on the earlier
of (a) in the case of any Base Rate Loan, quarterly in arrears of the last
Business Day of each February, May, August and November, commencing on November
30, 1999, until the Revolving Credit Termination Date, at which date the entire
principal amount of and all accrued interest on the Revolving Loans shall be
paid in full, (b) in the case of any Eurodollar Rate Loan, on last day of the
applicable Interest Period for such Eurodollar Rate Loan and if such Interest
Period extends for more than three (3) months, at intervals of three (3) months
after the first day of such Interest Period, and (c) upon payment in full of the
related Revolving Loan; PROVIDED, HOWEVER, that if any Event of Default shall
occur and be continuing, all amounts outstanding hereunder shall bear interest
thereafter until paid in full at the Default Rate.
4.4 PREPAYMENTS OF EURODOLLAR RATE LOANS. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by SECTION 6.5.
4.5 MANNER OF PAYMENT. (a) Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid by or on behalf of the Borrower to the Lenders, the Issuing Bank, the
Agent, or Bank of America with respect to any Loan, Letter of Credit,
Reimbursement Obligation, or Swing Line Loan, shall be made to the Agent at the
Principal Office in Dollars in immediately available funds without condition or
deduction or for any setoff, recoupment, deduction or counterclaim on or before
12:00 noon on the date such payment is due. The Agent may, but shall not be
obligated to, debit the amount of such payment from any one or more ordinary
deposit accounts of the Borrower with the Agent.
(b) Any payment made by or on behalf of the Borrower that is not made
both in Dollars in immediately available funds and prior to 12:00 noon on the
date such payment is to be made shall constitute a non-conforming payment. Any
such non-conforming payment shall not be deemed to be received until the later
of (i) the time such funds become available funds or (ii) the next Business Day.
Any non-conforming payment may constitute or become a Default or Event of
Default as otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal or fees as to which no payment or a non-conforming
payment is made from the date such amount was due and payable until the later of
(i) the date such funds become available funds or (ii) the next Business Day.
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(c) In the event that any payment hereunder or under any of the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day unless provided otherwise
under the definition of "Interest Period"; PROVIDED, however, that interest
shall continue to accrue during the period of any such extension; and PROVIDED
further, however, that in no event shall any such due date be extended beyond
the Revolving Credit Termination Date.
4.6 FEES. (a) UNUSED FEE. For the period beginning on the Closing Date
and ending on the Revolving Credit Termination Date, the Borrower agrees to pay
to the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a commitment fee equal to the Applicable Unused Fee
multiplied by the average daily amount by which the Total Revolving Credit
Commitment exceeds the sum of (i) Revolving Credit Outstandings without giving
effect to Swing Line Outstandings plus (ii) Letter of Credit Outstandings. Such
fees shall be due in arrears on the last Business Day of each February, May,
August and November commencing November 30, 1999 to and on the Revolving Credit
Termination Date. Notwithstanding the foregoing, so long as any Lender fails to
make available any portion of its Revolving Credit Commitment when requested,
such Lender shall not be entitled to receive payment of its pro rata share of
such fee until such Lender shall make available such portion.
(b) LETTER OF CREDIT FACILITY FEES. The Borrower shall pay to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the aggregate amount available to be drawn on
each outstanding Letter of Credit at a rate equal to the Applicable Margin for
Eurodollar Rate Loans. Such fees shall be due with respect to each Letter
of Credit quarterly in arrears on the last day of each February, May, August and
November, the first such payment to be made on the first such date occurring
after the date of issuance of a Letter of Credit.
(c) LETTER OF CREDIT FRONTING AND ADMINISTRATIVE FEES. From and after
the date on which there is more than one Lender, the Borrower shall pay to the
Issuing Bank a fronting fee of one-eighth of one percent per annum (0.125%) on
the aggregate amount available to be drawn on each outstanding Letter of Credit,
such fee to be payable quarterly in arrears with respect to each Letter of
Credit on the dates established in SECTION 4.6(b) for the payment of Letter of
Credit facility fees with respect to such Letter of Credit. The Borrower shall
also pay to the Issuing Bank such administrative fee and other fees, if any, in
connection with the Letters of Credit in such amounts and at such times as the
Issuing Bank and the Borrower shall agree from time to time.
(d) ADMINISTRATIVE FEES. The Borrower agrees to pay to the Agent, for
the Agent's individual account, an annual administrative fee, such fee to be
payable in such amounts and at such dates as from time to time agreed to by the
Borrower and Agent in writing.
4.7 PRO RATA PAYMENTS. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on Loans, the fees described
in SECTION 4.6(a) AND (b), and Swing Line Loans and Reimbursement Obligations as
to which the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Agent for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, and (b) the Agent will
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promptly distribute to the Lenders in immediately available funds payments
received in fully collected, immediately available funds from the Borrower.
4.8 COMPUTATION OF RATES AND FEES. Except as may be otherwise expressly
provided, (i) the Base Rate shall be computed on the basis of a 365/366 day year
and calculated for actual days elapsed, and (ii) all other interest rates
(including each Eurodollar Rate and the Default Rate) and fees shall be computed
on the basis of a year of 360 days and calculated for actual days elapsed.
4.9 DEFICIENCY ADVANCES; FAILURE TO PURCHASE PARTICIPATIONS. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment or Letter of Credit Commitment of any Lender hereunder be increased
as a result of such default of any other Lender. Without limiting the generality
of the foregoing or the provisions of SECTION 4.10, in the event any Lender
shall fail to advance funds to the Borrower as herein provided, the Agent may in
its discretion, but shall not be obligated to, advance under the applicable Note
in its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such Advance under its Note; provided that, (i) such defaulting Lender
shall not be entitled to receive payments of principal, interest or fees with
respect to such deficiency advance until such deficiency advance (together with
interest thereon as provided in clause (ii)) shall be paid by such Lender and
(ii) upon payment to the Agent from such other Lender of the entire outstanding
amount of each such deficiency advance, together with accrued and unpaid
interest thereon, from the most recent date or dates interest was paid to the
Agent by a Borrower on each Loan comprising the deficiency advance at the
Federal Funds Rate, then such payment shall be credited against the applicable
Note of the Agent in full payment of such deficiency advance and such Borrower
shall be deemed to have borrowed the amount of such deficiency advance from such
other Lender as of the most recent date or dates, as the case may be, upon which
any payments of interest were made by such Borrower thereon. In the event any
Lender shall fail to fund its purchase of a Participation after notice from the
Issuing Bank or Bank of America as the Swing Line lender, as applicable, such
Lender shall pay to the Issuing Bank or Bank of America as the Swing Line
lender, as applicable, such amount on demand, together with interest on the
amount so due from the date of such notice at the Federal Funds Rate to the date
such purchase price is received by the Issuing Bank or Bank of America as the
Swing Line lender, as applicable.
4.10 INTRADAY FUNDING. Without limiting the provisions of SECTION 4.9,
unless the Borrower or any Lender has notified the Agent not later than 12:00
Noon of the Business Day before the date any payment (including in the case of
Lenders any Advance) to be made by it is due, that it does not intend to remit
such payment, the Agent may, in its discretion, assume that Borrower or each
Lender, as the case may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance thereon, make
available such payment (or portion thereof) to the Person entitled thereto as
otherwise provided herein. If such payment was not in fact remitted to the Agent
in the manner required hereunder, then:
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(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Agent the amount of such assumed
payment made available to such Lender, together with interest thereon
in respect of each day from and including the date such
amount was made available by the Agent to such Lender to the date such
amount is repaid to the Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Agent
shall be entitled to recover such corresponding amount forthwith upon
the Agent's demand therefor, the Agent promptly shall notify the
Borrower, and the Borrower shall promptly pay such corresponding amount
to the Agent in immediately available funds upon receipt of such
demand. The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent, (A) from
such Lender at a rate per annum equal to the daily Federal Funds Rate
or (B) from the Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of SECTION 4.9. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the Agent or
the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
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ARTICLE V
SECURITY
5.1. SECURITY. As security for the full and timely payment and
performance of all Obligations, the Borrower shall, and shall cause all other
Credit Parties to, on or before the Closing Date, do or cause to be done all
things necessary in the opinion of the Agent and its counsel to grant to the
Agent for the benefit of the Lenders a duly perfected first priority security
interest in all Collateral subject to no prior Lien or other encumbrance or
restriction on transfer (other than restrictions on transfer imposed by
applicable securities laws. In accordance with the foregoing, the Borrower and
each Domestic Subsidiary having rights in any Subsidiary Securities of a
Material Subsidiary shall on the Closing Date deliver to the Agent, in form and
substance reasonably acceptable to the Agent, (A) a Pledge Agreement which shall
pledge to the Agent for the benefit of the Agent and the Lenders the Initial
Pledged Interests owned by the Borrower or such Domestic Subsidiary, (B) if such
Initial Pledged Interests are in the form of certificated securities, such
certificated securities, together with undated stock powers or other appropriate
transfer documents endorsed in blank pertaining thereto, (C) if such Initial
Pledged Interests do not constitute securities and the issuer thereof has not
elected to have such interests treated as securities under Article 8 of the
Uniform Commercial Code, a control agreement (containing the provisions
described in SECTION 9.20(f)) from the Registrar of such Initial Pledged
Interests, and (D) Uniform Commercial Code financing statements reflecting the
Lien in favor of the Agent on such Initial Pledged Interests, each in form and
substance acceptable to the Agent, and shall take such further action and
deliver or cause to be delivered such further documents as required by the
Security Instruments or otherwise as the Agent may request to effect the
transactions contemplated by this ARTICLE V. The Borrower shall, and shall cause
each Domestic Subsidiary, to pledge to the Agent for the benefit of the Agent
and the Lenders (and as appropriate to reaffirm its prior pledge of) all of the
Pledged Interests of (x) each Material Domestic Subsidiary and each Material
Foreign Subsidiary acquired or created after the Closing Date, and (y) each
Subsidiary that becomes a Material Domestic Subsidiary or a Material Foreign
Subsidiary after the Closing Date, and to deliver to the Agent all of the
documents and instruments in connection therewith as are required pursuant to
the terms of SECTION 9.20 and of the Security Instruments.
5.2. FURTHER ASSURANCES. At the request of the Agent, the Borrower will
or will cause all other Credit Parties, as the case may be, to execute, by its
duly authorized officers, alone or with the Agent, any certificate, instrument,
financing statement, control agreement, statement or document, or to procure any
such certificate, instrument, statement or document, or to take such other
action (and pay all connected costs) which the Agent reasonably deems necessary
from time to time to create, continue or preserve the liens and security
interests in Collateral (and the perfection and priority thereof) of the Agent
contemplated hereby and by the other Loan Documents and specifically including
all Collateral acquired by the Borrower or any other Credit Party after the
Closing Date. The Agent is hereby irrevocably authorized to execute and file or
cause to be filed, with or if permitted by applicable law without the signature
of the Borrower or any Credit Party appearing thereon, all Uniform Commercial
Code financing statements reflecting the Borrower or any other Credit Party as
"debtor" and the Agent as "secured party", and continuations thereof and
amendments
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thereto, as the Agent reasonably deems necessary or advisable to give effect to
the transactions contemplated hereby and by the other Loan Documents.
5.3. INFORMATION REGARDING COLLATERAL. The Borrower represents,
warrants and covenants that (i) the chief executive office of the Borrower and
each other Person providing Collateral pursuant to a Security Instrument (each,
a "Grantor") at the Closing Date is located at the address or addresses
specified on SCHEDULE 5.3, and (ii) SCHEDULE 5.3 contains a true and complete
list of (a) the exact legal name, jurisdiction of formation, and address of each
Grantor and of each other Person that has effected any merger or consolidation
with a Grantor or contributed or transferred to a Grantor any property
constituting Collateral at any time since January 1, 1995 (excluding Persons
making sales in the ordinary course of their businesses to a Grantor of property
constituting inventory in the hands of such seller), and (b) the exact legal
name, jurisdiction of formation, and each location of the chief executive office
of each Grantor at any time since January 1, 1995. The Borrower shall not
change, and shall not permit any other Grantor to change, its name, jurisdiction
of formation (whether by reincorporation, merger or otherwise) or the location
of its chief executive office, except upon giving not less than thirty
(30) days' prior written notice to the Agent and taking or causing to be taken
all such action at the Borrower's or such other Grantor's expense as may be
reasonably requested by the Agent to perfect or maintain the perfection of the
Lien of the Agent in Collateral.
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ARTICLE VI
CHANGE IN CIRCUMSTANCES
6.1. INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank, or
comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect to any
Eurodollar Rate Loans, its Note, or its obligation to make Eurodollar
Rate Loans, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Agreement or
its Note in respect of any Eurodollar Rate Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement (other
than the Reserve Requirement utilized in the determination of the
Eurodollar Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the Revolving
Credit Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other condition
affecting this Agreement or its Note or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower under
this SECTION 6.1(a), the Borrower may, by notice to such Lender (with a copy to
the Agent), suspend the obligation of such Lender to make or Continue Loans of
the Type with respect to which such compensation is requested, or to Convert
Loans of any other Type into Loans of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the provisions
of SECTION 6.4 shall be applicable); PROVIDED that such suspension shall not
affect the right of such Lender to receive the compensation so requested.
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(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this SECTION 6.1 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this SECTION 6.1 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
6.2. LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
6.3. ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert other Types of
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Loans into Eurodollar Rate Loans shall be suspended until such time as such
Lender may again make, maintain, and fund Eurodollar Rate Loans (in which case
the provisions of SECTION 6.4 shall be applicable).
6.4. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to SECTION 6.1
OR 6.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by SECTION 6.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
SECTION 6.1 OR 6.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in SECTION 6.1 OR 6.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this SECTION 6.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by
other Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Revolving Credit Commitments.
6.5. COMPENSATION. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to SECTION 11.1) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
ARTICLE VII to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Rate Loan on the date for such borrowing,
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Conversion, Continuation, or prepayment specified in the relevant
notice of borrowing, prepayment, Continuation, or Conversion under this
Agreement.
6.6. TAXES. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, EXCLUDING, in the case of each Lender and
the Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 6.6) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in SECTION 13.2, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this SECTION 6.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority
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(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from or a reduced rate of tax on payments pursuant to this Agreement or any of
the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to SECTION 6.6(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under SECTION 6.6(a) OR
6.6(b) with respect to Taxes imposed by the United States; PROVIDED, HOWEVER,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this SECTION 6.6, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 6.6 shall survive the termination of the Revolving Credit
Commitments, the payment in full of the Notes and the Facility Termination Date.
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ARTICLE VII
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
7.1. CONDITIONS OF INITIAL ADVANCE. The obligation of the Lenders to
make the initial Advance under the Revolving Credit Facility, and of the Issuing
Bank to issue any Letter of Credit, and of Bank of America to make any Swing
Line Loan, is subject to the conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form
and substance satisfactory to the Agent and Lenders, the following:
(i) executed originals of each of this Agreement,
the Notes, the initial Facility Guaranties, the Security
Instruments, the LC Account Agreement and the other Loan
Documents, together with all schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of counsel to the Credit Parties dated
the Closing Date, addressed to the Agent and the Lenders and
reasonably satisfactory to special counsel to the Agent,
substantially in the form of EXHIBIT G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, (x) approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof, (y)
authorizing the Line of Business Transfer and the Spinoff, and
(z) approving and adopting the Line of Business Transfer
Documents and the Spinoff Documents, and authorizing the
execution and delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
each of the Credit Parties as of a recent date by the
Secretary of State or
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comparable official of each of Ohio and California,
constituting all of the jurisdictions in which the failure to
be qualified to do business or authorized so to conduct
business could have a Material Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) certificate of an Authorized Representative
dated the Closing Date demonstrating compliance with the
financial covenants contained in SECTIONS 10.1(a) through
10.1(c) as of the end of the fiscal quarter most recently
ended prior to the Closing Date and based on the Historical
Unaudited Quarterly Statements, substantially in the form of
EXHIBIT H;
(xi) the Historical Unaudited Quarterly Statements
and all other financial statements and projections referred to
in SECTION 8.6(a);
(xii) evidence that all notices required to be given
to effect on the Closing Date the repayment of the Existing
Syndicated Indebtedness and termination of the Existing
Syndicated Credit Agreement substantially simultaneously with
the receipt of the Special Distribution shall have been given;
(xiii) a certificate of an officer of the Borrower
reasonably satisfactory to the Agent and the Lenders as to the
matters set forth in SECTION 7.1(b) and, with respect to the
operations, assets and affairs of the Borrower and its
Subsidiaries only, SECTION 7.1(c);
(xiv) a certificate of an officer of OMNOVA
reasonably satisfactory to the Agent and the Lender as to the
matters set forth in SECTION 7.1(c), with respect to the
operations, assets and affairs of OMNOVA and its subsidiaries
only;
(xv) evidence that the proceeds of the Special
Distribution have been received and are used substantially
simultaneously with the delivery thereof to repay the
obligations of the Borrower and its Subsidiaries arising under
the Existing Syndicated Indebtedness and to terminate the
Existing Syndicated Credit Agreement;
(xvi) evidence of all insurance required by the Loan
Documents;
(xvii) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xviii) evidence of the filing of Uniform Commercial
Code financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the Agent
under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such
other documents and/or evidence of other actions as may be
necessary under applicable law to perfect the Liens of the
Agent under the Security
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Instruments as a first priority Lien in and to such other
Collateral as the Agent may require, including without
limitation:
(i) the delivery by the Borrower of all
certificates evidencing Pledged Interests,
accompanied in each case by duly executed stock
powers (or other appropriate transfer documents) in
blank affixed thereto; and
(ii) the delivery by the Borrower of
certificates of the Registrar of each partnership
Subsidiary evidencing the due registration on the
registration books of such partnership of the Lien in
favor of the Agent conferred under the Security
Instruments;
(xix) copies of the executed Line of Business
Transfer Documents and the Spinoff Documents certified by the
secretary or an assistant secretary of the Borrower, which
shall be in form and substance satisfactory to the Agent;
(xx) copies certified by an Authorized Representative
of executed employment contracts by the Borrower with key
executives of the Retained Business, including Messrs. ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇;
(xxi) a copy, certified by an Authorized
Representative of the Borrower, of the ruling letter dated as
of June 30, 1999 from the Internal Revenue Service ("IRS") to
the effect that Section 355 of the Code would apply to the
Spinoff such that the Spinoff will constitute a tax-free
distribution for U.S. Federal income tax purposes (the "IRS
Ruling Letter");
(xxii) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, BAS and the Lenders have
been paid in full; and
(xxiii) such other documents, instruments,
certificates and opinions as the Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the Spinoff, the Line of
Business Transfer or the transactions contemplated hereby; and
(b) Each of the following shall have occurred or be true:
(i) substantially simultaneously with the making of
the initial Advance hereunder (x) the Borrower shall have
received the Special Distribution, (y) the Borrower shall have
paid in full all amounts owing under each of the Existing
Syndicated Indebtedness and terminated the Existing Syndicated
Credit Agreement and all documents and obligations relating
thereto, and (z) the Spinoff and the Line of Business Transfer
shall have been approved by the shareholders of the Borrower,
as necessary, and shall have been effected in accordance with,
and upon satisfaction of each of the conditions to
effectiveness thereof without any waiver thereof, as set forth
in the Spinoff Documents and the Line of Business Transfer
Documents, respectively; and
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(ii) there shall not have been any material
amendment, revision, alteration or supplement to any of the
Spinoff Documents or any of the Line of Business Transfer
Documents from the forms thereof from time to time delivered
to and reviewed by the Lenders without the written consent of
the Agent; and
(c) In the good faith judgment of the Agent and the
Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the
financial and business projections, budgets, pro forma data
and forecasts concerning the Borrower and its Subsidiaries
delivered to the Agent prior to the Closing Date that has had
or could reasonably be expected to result in a Material
Adverse Effect or adversely affect the consummation of the
Spinoff or the Line of Business Transfer in accordance with
the terms of the Spinoff Documents or the Line of Business
Transfer Documents, respectively;
(ii) no order, decree, judgment, ruling, injunction,
litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or
threatened, and there shall exist no order, decree, judgment,
injunction or arbitral award or ruling, which could reasonably
be likely to result in a Material Adverse Effect, or restrain
or otherwise adversely affect the consummation of the Spinoff
or the Line of Business Transfer in accordance with the terms
of the Spinoff Documents or the Line of Business Transfer
Documents, respectively; and
(iii) in connection with the Line of Business
Transfer, the Spinoff and the transactions contemplated
thereby, (A) each of OMNOVA (or its applicable subsidiaries)
and each of the Credit Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby (including the
Spinoff and the Line of Business Transfer) without the
occurrence of any default under, conflict with or violation of
(I) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (II) any
agreement, document or instrument to which OMNOVA, any of its
subsidiaries, or any of the Credit Parties is a party or by
which any of them or their properties is bound, (B) such
approvals, consents and waivers shall be in force and effect,
(C) all waiting periods shall have expired without any action
being taken to restrain or prevent or impose any adverse
material conditions on the Line of Business Transfer, the
Spinoff and the transactions contemplated thereby, and (D) no
law or regulation shall be applicable which, in the sole
judgment of the Agent, could restrain or prevent or impose any
adverse material conditions on the Line of Business Transfer,
the Spinoff and the transactions contemplated thereby or be
violated by the consummation of any thereof.
7.2. CONDITIONS OF REVOLVING LOANS AND LETTER OF CREDIT. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue Letters of Credit and Bank of America
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to make Swing Line Loans, hereunder on or subsequent to the Closing Date are
subject to the satisfaction of the following conditions:
(a) the Agent or, in the case of Swing Line Loans, Bank of
America shall have received a Borrowing Notice if required by ARTICLE
II;
(b) the representations and warranties of the Credit Parties
set forth in ARTICLE VIII and in each of the other Loan Documents shall
be true and correct in all material respects on and as of the date of
such Advance, Swing Line Loan or Letter of Credit issuance or renewal,
with the same effect as though such representations and warranties had
been made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in SECTION 8.6(a)
shall be deemed (solely for the purpose of the representation and
warranty contained in such SECTION 8.6(a) but not for the purpose of
any cross-reference to such SECTION 8.6(a) or to the financial
statements described therein contained in any other provision of
SECTION 8.6 or elsewhere in ARTICLE 8) to be those financial statements
most recently delivered to the Agent and the Lenders pursuant to
SECTION 9.1 from the date financial statements are delivered to the
Agent and the Lenders in accordance with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in ARTICLE XI shall have occurred and be
continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $10,000,000; and
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(iv) a Revolving Loan, Swing Line Loan or a Letter of
Credit or renewal thereof, the sum of Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing
Line Outstandings shall not exceed the Total Revolving Credit
Commitment.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
8.1. ORGANIZATION AND AUTHORITY.
(a) The Borrower and each Subsidiary is a corporation,
partnership or other legal entity duly organized and validly existing
under the laws of the jurisdiction of its formation;
(b) The Borrower and each Subsidiary (i) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the
Transaction Documents, and (ii) is qualified to do business in every
jurisdiction in which failure so to qualify would have a Material
Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other
Transaction Documents to which it is a party;
(d) Each Guarantor has the power and authority to execute,
deliver and perform the Facility Guaranty and each of the other
Transaction Documents to which it is a party; and
(e) When executed and delivered, each of the Transaction
Documents to which any Credit Party is a party will be the legal, valid
and binding obligation or agreement, as the case may be, of such Credit
Party, enforceable against such Credit Party in accordance with its
respective terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law affecting
the enforceability of creditors' rights generally and to the effect of
general principles of equity which may limit the availability of
remedies (whether considered in a proceeding at law or in equity).
8.2. TRANSACTION DOCUMENTS. The execution, delivery and performance by
each Credit Party of each of the Transaction Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate any provisions of (i) any applicable law,
rule or regulation, (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental
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Authority or arbitral authority binding on such Credit Party or its
properties, or (iii) the Organizational Documents or Operating
Documents of such Credit Party;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party or OMNOVA or any of its
subsidiaries is a party, or by which the properties or assets of such
Credit Party or OMNOVA or any of its subsidiaries are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
except any Liens in favor of the Agent and the Lenders created by the
Security Instruments.
8.3. SOLVENCY. Each Credit Party is Solvent after giving effect to the
transactions contemplated by the Transaction Documents.
8.4. SUBSIDIARIES AND STOCKHOLDERS. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in SCHEDULE 8.4 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
SECTION 9.20; SCHEDULE 8.4 states as of the date hereof the organizational form
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in SCHEDULE
8.4, free and clear of any Lien.
8.5. OWNERSHIP INTERESTS. Borrower owns no interest in any Person other
than the Persons listed in SCHEDULE 8.4, equity investments in Persons not
constituting Subsidiaries permitted under SECTION 10.6 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
SECTION 9.20.
8.6. FINANCIAL CONDITION.
(a) The Borrower has heretofore furnished to the Agent and
each Lender (i) an unaudited pro forma condensed consolidated balance
sheet of the Borrower and its Subsidiaries as at February 28, 1999 and
the notes thereto and the related unaudited pro forma condensed
consolidated statements of income for the three months ended February
28, 1999, (ii) unaudited pro forma condensed statements of income for
the years ended November 30, 1998, November 30, 1997 and November 30,
1996, and the notes thereto (information listed at (i) and (ii) is
found on pages 41 through 50 of the Borrower's proxy statement dated
July 2, 1999), and (iii) pro forma five-year projections, beginning
with the
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Fiscal Year ending November 30, 1999, including pro forma balance
sheets and statements of income and cash flows. Except as set forth
therein, the financial statements described in (i) and (ii) above
(including the notes thereto) present fairly on a pro forma basis
giving effect to the Line of Business Transfer and the Spinoff, the
financial condition of the Borrower and its Subsidiaries as of such
periods and results of their operations for the periods then ended, all
in conformity with GAAP applied on a Consistent Basis;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to SECTION 8.6(a)(i) hereof or (ii) the
date of the audited financial statements most recently delivered
pursuant to SECTION 9.1(a) hereof, there has been no material adverse
change in the condition, financial or otherwise, or in the businesses,
properties, performance, prospects or operations, of the Borrower, its
Subsidiaries or, in respect of clause (i), the Retained Business, nor
have such businesses or properties been materially adversely affected
as a result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo or act of God; and
(c) except as set forth in the financial statements referred
to in SECTION 8.6(a) or in SCHEDULE 8.6 or permitted by SECTION 10.4,
neither the Borrower nor any Subsidiary has incurred any material
Indebtedness which remains outstanding or unsatisfied.
8.7. TITLE TO PROPERTIES. The Borrower and each of its Subsidiaries has
good and marketable title to all its real and personal properties, subject to no
transfer restrictions or Liens of any kind, except for (i) the transfer
restrictions and Liens described in SCHEDULE 8.7, (ii) Permitted Liens, (iii)
with respect to any personal property that constitutes a security, transfer
restrictions imposed under Federal and state securities laws and regulations,
and (iv) the lack of title or the presence of such transfer restrictions that
could not reasonably be expected to have a Material Adverse Effect.
8.8. TAXES. Except as set forth in SCHEDULE 8.8, the Borrower and each
of its Subsidiaries has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in SECTION 8.6(a) or SECTIONS 9.1(a) or (b) and satisfactory to the
Borrower's independent certified public accountants have been established, have
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due, unless
the failure to pay the same could not reasonably be expected to have a Material
Adverse Effect.
8.9. OTHER AGREEMENTS. Neither the Borrower nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which the
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Borrower or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could reasonably be likely
to have, a Material Adverse Effect.
8.10. LITIGATION. Except as set forth in SCHEDULE 8.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or other Credit Party or affecting the Borrower or any Subsidiary or
other Credit Party or any properties or rights of the Borrower or any Subsidiary
or other Credit Party, which in the opinion of management could reasonably be
expected to have a Material Adverse Effect.
8.11. MARGIN STOCK. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 221) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof.
8.12. INVESTMENT COMPANY. No Credit Party is an "investment company,"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. Section 80a-1, et seq.). The application of the
proceeds of the Loans and repayment thereof by the Borrower and the performance
by the Borrower and the other Credit Parties of the transactions contemplated
by the Loan Documents will not violate any provision of said Act, or any rule,
regulation or order issued by the Securities and Exchange Commission
thereunder, in each case as in effect on the date hereof.
8.13. PATENTS, ETC. The Borrower and each other Credit Party owns or
has the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person.
8.14. NO UNTRUE STATEMENT. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation of the Loan Documents
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it was
made, in order to make any such warranty, representation or statement contained
therein not misleading.
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8.15. NO CONSENTS, ETC. Neither the respective businesses or properties
of the Credit Parties or any Subsidiary, nor any relationship among the Credit
Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Transaction
Documents and the transactions contemplated thereby, is such as to require a
consent, approval or authorization of, or filing, registration or qualification
with, any Governmental Authority or any other Person on the part of any Credit
Party as a condition to the execution, delivery and performance of, or
consummation of the transactions contemplated by the Transaction Documents,
which, if not obtained or effected, would be reasonably likely to have a
Material Adverse Effect, or if so, such consent, approval, authorization,
filing, registration or qualification has been duly obtained or effected, as the
case may be.
8.16. EMPLOYEE BENEFIT PLANS.
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except for any
required amendments for which the remedial amendment period as defined
in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been determined or the Borrower or its Subsidiaries is in
the process of obtaining a determination by the Internal Revenue
Service to be so qualified, each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code, and each
Employee Benefit Plan subject to any Foreign Benefit Law has received
the required approvals by any Governmental Authority regulating such
Employee Benefit Plan. No material liability has been incurred by the
Borrower or any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
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(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, or
the funding of which is regulated by any Foreign Benefit Law did not,
as of the most recent valuation date for each such plan, exceed the
then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the
Borrower or any ERISA Affiliate, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable
Foreign Benefit Law and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan.
8.17. NO DEFAULT. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
8.18. ENVIRONMENTAL MATTERS. Based upon currently available information
and reasonable investigation and inquiry, to the best of management's knowledge,
except as set forth in SCHEDULE 8.18 hereto:
(a) The Borrower and its Subsidiaries are in compliance with
all Environmental Laws, except to the extent that any non-compliance
would not reasonably be expected to have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws that would reasonably be expected to
have a Material Adverse Effect, nor does the Borrower have knowledge or
reason to believe that any such notice will be received or is being
threatened.
(c) No judicial, governmental or administrative proceedings
are pending or are threatened against the Borrower or any of its
Subsidiaries under any Environmental Law, nor are there any consent
decrees or court decrees, consent orders, or administrative orders
outstanding under any Environmental Law with respect to the Borrower or
any of its Subsidiaries that would reasonably be expected to have a
Material Adverse Effect.
(d) There has been no release of Hazardous Materials arising
from, generated by or related to the operations of the Borrower or any
of its Subsidiaries, or for which the
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Borrower or any of its Subsidiaries has retained or assumed liability
in amounts or in a manner that would reasonably be expected to result
in a Material Adverse Effect.
(e) Environmental liabilities with respect to continued and
discontinued operations of the Borrower that are part of the
Transferred Business have not been assumed or retained by the Borrower,
will become obligations of OMNOVA after the Spinoff, and OMNOVA has
agreed to indemnify the Borrower for any such environmental liabilities
pursuant to the terms of the Distribution Agreement.
8.19. EMPLOYMENT MATTERS. Except as disclosed on SCHEDULE 8.19 hereto,
the Borrower and all Subsidiaries are in compliance with all applicable laws,
rules and regulations pertaining to labor or employment matters, including
without limitation those pertaining to wages, hours, occupational safety and
taxation, the noncompliance with which could reasonably be expected to have a
Material Adverse Effect, and there is neither pending nor, to the knowledge of
the Borrower, any threatened litigation, administrative proceeding or
investigation in respect of such matters an adverse ruling or determination in
which could reasonably be expected to have a Material Adverse Effect. Except as
disclosed on SCHEDULE 8.19 hereto, neither the Borrower nor any of its
Subsidiaries is party to any collective bargaining agreement with any labor
union or similar organization.
8.20. RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
8.21. FINE CHEMICALS PATENT. No litigation, action, suit, investigation
or other arbitral, administrative or judicial proceeding is pending or has been
threatened by any Person against the Borrower or any Subsidiary (or any licensor
of any patent or other intellectual property or property right) with respect to
any patent or other intellectual property or property right that could adversely
affect Fine Chemicals' right to utilize any material technology in its
production operations.
8.22. AEROJET SETTLEMENT AGREEMENT. The Aerojet Settlement Agreement is
in full force and effect pursuant to its terms as in effect on the Closing Date,
no Person party thereto has opted out of the Aerojet Settlement Agreement, and
no Governmental Authority party thereto has any defense to its obligations
thereunder or to the terms thereof.
8.23. TAX TREATMENT OF SPINOFF. The Spinoff has been accomplished
substantially simultaneously with the making of the initial advance hereunder
consistent with the factual representations and assumptions presented to the IRS
by the Borrower in its request for the IRS Ruling Letter.
8.24. YEAR 2000 COMPLIANCE. The Borrower and its Subsidiaries have (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan
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substantially in accordance with that timetable. The Borrower reasonably
believes that all computer applications (including those affected by
information received from its suppliers and vendors) that are material to its
or any of its Subsidiaries' business and operations will on a timely basis be
Year 2000 Compliant, except to the extent that a failure to do so could not
reasonably be expected to have Material Adverse Effect.
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ARTICLE IX
AFFIRMATIVE COVENANTS
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
9.1. FINANCIAL REPORTS, ETC. (a) As soon as practical and in any event
within 90 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) consolidated and, if
there are any Material Subsidiaries, consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Year, and the notes
thereto, and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows, and the respective notes thereto, for such
Fiscal Year, setting forth (other than for consolidating statements) comparative
financial statements for the preceding Fiscal Year, all prepared in accordance
with GAAP applied on a Consistent Basis and containing, with respect to the
consolidated financial statements, opinions of Ernst & Young, LLP or other such
independent certified public accountants selected by the Borrower and approved
by the Agent, which are unqualified as to the scope of the audit performed and
as to the "going concern" status of the Borrower and without any exception not
acceptable to the Lenders, and (ii) a certificate of an Authorized
Representative demonstrating compliance with SECTIONS 10.1(a) through 10.1(c)
and 10.3, which certificate shall be in the form of EXHIBIT H;
(b) as soon as practical and in any event within 45 days after the end
of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
deliver to the Agent and each Lender (i) consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows for such fiscal quarter and for the period
from the beginning of the then current Fiscal Year through the end of such
reporting period, and accompanied by a certificate of a Responsible Officer to
the effect that such financial statements present fairly the financial position
of the Borrower and its Subsidiaries as of the end of such fiscal period and the
results of their operations and the changes in their financial position for such
fiscal period, in conformity with the standards set forth in SECTION 8.6(a) with
respect to interim financial statements, and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to that
required pursuant to SECTION 9.1(a)(ii);
(c) together with each delivery of the financial statements required by
SECTION 9.1(a)(i), deliver to the Agent and each Lender a letter from the
Borrower's accountants specified in SECTION 9.1(a)(i) stating that in performing
the audit necessary to render an opinion on the financial statements delivered
under SECTION 9.1(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms and provisions of
SECTION 10.1 hereof (which at the date of such statement remains uncured); or if
the accountants have obtained knowledge of such Default or Event of Default, a
statement specifying the nature and period of existence thereof;
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(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower or any Subsidiary to its shareholders, bondholders
or the financial community in general, and (iii) any management letter or other
report submitted to the Borrower or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or any
Subsidiary;
(e) concurrently with the delivery of the financial statements referred
to in SECTION 9.1(a) and the delivery of the financial statements required to be
delivered under SECTION 9.1(b), deliver or cause to be delivered to the Agent
and each Lender a report of the Borrower with respect to the environmental
matters affecting the Borrower and the Subsidiaries in the same level of detail
and of the same scope as that furnished to the lenders under the Existing
Syndicated Credit Agreement;
(f) concurrently with the delivery of the financial statements required
to be delivered under SECTION 9.1(a) OR (b), deliver or cause to be delivered to
the Agent and each Lender notice of any request for indemnity under the terms of
the Spinoff Documents and the Line of Business Transfer Documents either
delivered to, or received from, OMNOVA which, when aggregated with all other
such requests would exceed $10,000,000 and, with respect to such requests from
OMNOVA, the position of the Borrower in response to such request;
(g) promptly upon receipt thereof by the Borrower or any Subsidiary,
and in no event later than thirty (30) Business Days thereafter, deliver to the
Agent and the Lenders any notice received with respect to any pending or
threatened litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding with respect to any patent or other
intellectual property or property right that could adversely affect Fine
Chemicals' right to utilize any material technology in its production
operations;
(h) promptly upon receipt thereof by the Borrower or any Subsidiary,
and in no event later than thirty (30) Business Days thereafter, deliver to the
Agent and the Lenders any notice received with respect to any pending or
threatened litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding with respect to, or that could result in
the suspension or prohibition of, or could otherwise reasonably be expected to
have a material adverse effect on, the ability of Aerojet to enter into
contracts or otherwise conduct business with any Governmental Authority;
(i) promptly upon receipt thereof by the Borrower or any Subsidiary,
and in no event later than five (5) Business Days thereafter, deliver to the
Agent and the Lenders any notice received with respect to or pursuant to the
Aerojet Settlement Agreement concerning any party's election to opt out thereof
or otherwise not to comply with the terms thereof or to propose any material
modification thereof;
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(j) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and any
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request;
Subject to the provisions of SECTION 13.1(h), the Agent and the Lenders
are hereby authorized to deliver a copy of any such financial or other
information delivered hereunder to the Lenders (or any affiliate of any Lender)
or to the Agent, to any Governmental Authority having jurisdiction over the
Agent or any of the Lenders pursuant to any written request therefor or in the
ordinary course of examination of loan files, or to any other Person who shall
acquire or consider the assignment of, or acquisition of any participation
interest in, any Obligation permitted by this Agreement.
9.2. MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know- how, and
other intellectual property and proprietary information (or adequate licenses
thereto), in each case as are in the opinion of management reasonably necessary
to conduct its business as currently conducted or as contemplated hereby, all in
accordance with customary and prudent business practices.
9.3. EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under SECTION 10.7, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary except where the failure to so qualify would not have
a Material Adverse Effect.
9.4. REGULATIONS AND TAXES. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been established
unless and until any Lien resulting therefrom attaches to any of its property
and becomes enforceable against its creditors.
9.5. INSURANCE. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are currently
maintained and are prudent when considered in light of the Borrower's properties
and businesses, (b) maintain general public liability insurance at all times
with responsible insurance carriers against liability on account of damage to
persons and property having such limits, deductibles, exclusions, co-insurance
and other provisions providing coverages that are currently maintained and are
prudent when considered in light of the Borrower's properties and businesses,
and (c) maintain existing insurance under all applicable workers' compensation
laws (or in the alternative, maintain required reserves if self-insured for
workers' compensation purposes). Each of the policies of insurance described in
clauses (a) and (b) of this SECTION 9.5 shall provide that the
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insurer shall give the Agent not less than thirty (30) days prior written notice
before any such policy shall lapse or be terminated or canceled.
9.6. TRUE BOOKS. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
9.7. YEAR 2000 COMPLIANCE. The Borrower will promptly notify the Agent
and the Lenders in the event the Borrower discovers or determines that any
computer application (including those affected by information received from its
suppliers and vendors) that is material to its or any of its Subsidiaries'
business and operations will not be Year 2000 Compliant on a timely basis,
except to the extent that such failure could not reasonably be expected to have
a Material Adverse Effect.
9.8. RIGHT OF INSPECTION. Permit any Person designated by any Lender or
the Agent to visit and inspect any of the properties, corporate books and
financial reports of the Borrower or any Subsidiary and to discuss its affairs,
finances and accounts with its principal officers and independent certified
public accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice.
9.9. OBSERVE ALL LAWS. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business, except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
9.10. GOVERNMENTAL LICENSES. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents, except where the failure to do so could not
reasonably be expect to have a Material Adverse Effect.
9.11. COVENANTS EXTENDING TO OTHER PERSONS. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in SECTIONS 9.2 through 9.10, and 9.20
inclusive.
9.12. OFFICER'S KNOWLEDGE OF DEFAULT. Upon any senior executive officer
of the Borrower obtaining knowledge of any Default or Event of Default hereunder
or under any other obligation of the Borrower or any Subsidiary to any Lender,
cause such officer or an Authorized Representative to promptly notify the Agent
of the nature thereof, the period of existence thereof, and what action the
Borrower or such Subsidiary proposes to take with respect thereto.
9.13. SUITS OR OTHER PROCEEDINGS. Upon any Responsible Officer of the
Borrower obtaining knowledge of any litigation or other proceedings being
instituted against the Borrower or any Subsidiary, or any attachment, levy,
execution or other process being instituted against any assets
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of the Borrower or any Subsidiary, making a claim or claims in an aggregate
amount greater than $10,000,000 not otherwise covered by insurance, promptly
deliver to the Agent written notice thereof stating the nature and status of
such litigation, dispute, proceeding, levy, execution or other process.
9.14. NOTICE OF ENVIRONMENTAL COMPLAINT OR CONDITION. Without limiting
the provisions of SECTION 9.1(e), and except to the extent such matters could
not reasonably be expected to have a Material Adverse Effect, promptly (i) give
notice to the Agent if the Borrower or any Subsidiary is in violation of or is
not in compliance with or has incurred any liability or potential liability
under any Environmental Law, and (ii) provide to the Agent true, accurate and
complete copies of any and all letters, notices, complaints, orders, directives,
claims or citations received by the Borrower or any Subsidiary relating to any
(a) violation or alleged violation by the Borrower or any Subsidiary of any
applicable Environmental Law; (b) release or threatened release by the Borrower
or any Subsidiary, or by any Person handling, transporting or disposing of any
Hazardous Material on behalf of the Borrower or any Subsidiary, or at any
facility or property owned or leased or operated by the Borrower or any
Subsidiary, of any Hazardous Material, except where occurring legally pursuant
to a permit or license; or (c) liability or alleged liability of the Borrower or
any Subsidiary for the costs of cleaning up, removing, remediating or responding
to a release of Hazardous Materials.
9.15. ENVIRONMENTAL COMPLIANCE. Comply with all Environmental Laws, or
contest in good faith the applicability of any Environmental Law or any
liability thereunder. If the Borrower or any Subsidiary shall receive any
letter, notice, complaint, order, directive, claim or citation alleging that the
Borrower or any Subsidiary has violated any Environmental Law, has released any
Hazardous Material, or is liable for the costs of cleaning up, removing,
remediating or responding to a release of Hazardous Materials, the Borrower and
any Subsidiary shall, within the time period permitted and to the extent
required by the applicable Environmental Law or the Governmental Authority
responsible for enforcing such Environmental Law, remove or remedy, or cause the
applicable Subsidiary to remove or remedy, such violation or release or satisfy
such liability, unless and only during the period that the applicability of the
Environmental Law, the fact of such violation or liability or the action
required to remove, remedy or respond to such violation or liability is being
contested by the Borrower or its Subsidiary by appropriate proceedings
diligently conducted.
9.16. INDEMNIFICATION. Without limiting the generality of SECTION 13.9,
the Borrower hereby agrees to indemnify and hold the Agent and the Lenders and
any affiliate of any Lender party to a Swap Agreement, and their respective
officers, directors, employees and agents, harmless from and against any and all
claims, losses, penalties, liabilities, damages and expenses (including
assessment and cleanup costs and reasonable attorneys', consultants' or other
expert fees, expenses and disbursements) arising directly or indirectly from,
out of or by reason of (a) the violation of, noncompliance with or any liability
under any Environmental Law by the Borrower or any Subsidiary or with respect to
any property owned, operated or leased by the Borrower or any Subsidiary, or any
orders, requirements or demands of any Governmental Authority related thereto,
or (b) the handling, storage, transportation, treatment, emission, release,
discharge or disposal of any Hazardous Materials by or on behalf of the Borrower
or any Subsidiary, or on or with respect to property owned or leased or operated
by the Borrower or any Subsidiary, except to the extent that any of the
foregoing arise out of the gross negligence or willful misconduct of the party
seeking
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indemnification therefor. The provisions of this SECTION 9.16 shall
survive repayment of the Obligations and the Facility Termination Date and
expiration or termination of this Agreement.
9.17. FURTHER ASSURANCES. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement, the Security Instruments and the other Loan Documents.
9.18. EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (a) the establishment of
any new Employee Benefit Plan (which notice shall include a copy of
such plan), (b) the commencement of contributions to any Employee
Benefit Plan to which the Borrower or any of its ERISA Affiliates was
not previously contributing, (c) any material increase in the benefits
of any existing Employee Benefit Plan, (d) each funding waiver request
filed with respect to any Employee Benefit Plan and all communications
received or sent by the Borrower or any ERISA Affiliate with respect to
such request and (e) the failure of the Borrower or any ERISA Affiliate
to make a required installment or payment under Section 302 of ERISA or
Section 412 of the Code (in the case of Employee Benefit Plans
regulated by the Code or ERISA) or under any Foreign Benefit Law (in
the case of Employee Benefit Plans regulated by any Foreign Benefit
Law) by the due date;
(b) Promptly and in any event within thirty (30) days of
becoming aware of the occurrence or forthcoming occurrence of (a) any
Termination Event or (b) except to the extent it could not reasonably
be expected to have a Material Adverse Effect, any nonexempt
"prohibited transaction," as such term is defined in Section 406 of
ERISA or Section 4975 of the Code, in connection with any Employee
Benefit Plan or any trust created thereunder, deliver to the Agent a
notice specifying the nature thereof, what action the Borrower or any
ERISA Affiliate has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect
thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to
have a trustee appointed to administer any Pension Plan, (c) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by the Borrower or any ERISA Affiliate with the Internal
Revenue Service with respect to each Employee Benefit Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal
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liability on a Pension Plan pursuant to Section 4202 of ERISA unless
any such notice relates to an event or condition that could not
reasonably be expected to have a Material Adverse Effect. The Borrower
will notify the Agent in writing within five (5) Business Days of the
Borrower or any ERISA Affiliate obtaining knowledge or reason to know
that the Borrower or any ERISA Affiliate has filed or intends to file a
notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA.
9.19. CONTINUED OPERATIONS. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
9.20. NEW SUBSIDIARIES. Within thirty (30) days after (i) the
acquisition or creation of any Subsidiary, or (ii) an existing Subsidiary
becoming a Material Subsidiary (in either case, such Subsidiary to be known as
the "New Subsidiary"), cause to be delivered to the Agent for the benefit of the
Lenders each of the following as applicable:
(a) if the New Subsidiary is a Domestic Subsidiary and has not
previously delivered a Facility Guaranty, a Facility Guaranty executed
by such New Subsidiary substantially in the form of EXHIBIT I;
(b) if the New Subsidiary is a Material Domestic Subsidiary or
a Material Foreign Subsidiary and the Subsidiary Securities issued by
the New Subsidiary that constitute Pledged Interests shall be owned by
a Subsidiary who has not then executed and delivered to the Agent a
Pledge Agreement granting a Lien to the Agent, for the benefit of the
Agent and the Lenders, in such equity interests, a Pledge Agreement
executed by the Subsidiary that directly owns such Pledged Interests
substantially in the form attached hereto as EXHIBIT J (or, as to
Pledged Interests issued by any Direct Foreign Subsidiary, in a form
acceptable to the Agent);
(c) if the New Subsidiary is a Material Domestic Subsidiary or
a Material Foreign Subsidiary and the Subsidiary Securities issued by
such New Subsidiary that constitute Pledged Interests shall be owned by
the Borrower or a Subsidiary who has previously executed a Pledge
Agreement, a Pledge Agreement Supplement in the form required by such
Pledge Agreement pertaining to such Pledged Interests;
(d) if the New Subsidiary is the owner of Subsidiary
Securities of one or more Material Domestic Subsidiaries or Material
Foreign Subsidiaries that constitute Pledged Interests, a Pledge
Agreement by the New Subsidiary granting a Lien to the Agent, for the
benefit of the Agent and the Lenders, in such Pledged Interests,
substantially in the form attached hereto as EXHIBIT J (or, as to
Pledged Interests issued by any Direct Foreign Subsidiary, in a form
acceptable to the Agent);
(e) if the Pledged Interests issued by the New Subsidiary, or
by a Material Subsidiary owned by the New Subsidiary, constitute
securities under Article 8 of the Uniform Commercial Code (i) the
certificates representing 100% of such Pledged Interests
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and (ii) duly executed, undated stock powers or other appropriate
powers of assignment in blank affixed thereto;
(f) (i) Uniform Commercial Code financing statements on form
UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming
the Agent for the benefit of the Agent and the Lenders as "Secured
Party," in form, substance and number sufficient in the reasonable
opinion of the Agent and its special counsel to be filed in all Uniform
Commercial Code filing offices and in all jurisdictions in which filing
is necessary or advisable to perfect in favor of the Agent for the
benefit of the Agent and the Lenders the Lien on such Subsidiary
Securities, and (ii) if the Pledged Interests issued by the New
Subsidiary, or by a Material Subsidiary owned by the New Subsidiary, do
not constitute securities and the issuer thereof has not elected to
have such interests treated as securities under Article 8 of the
applicable Uniform Commercial Code, a control agreement from the
Registrar of the issuer, in form and substance acceptable to the Agent
and in which the Registrar (1) acknowledges that the pledgor is at the
date of such acknowledgment the sole record, and to its knowledge,
beneficial owner of such Subsidiary Securities, (2) acknowledges the
Lien in favor of the Agent conferred under the Pledge Agreement and
that such Lien will be reflected on the registry for such Subsidiary
Securities, (3) agrees that it will not register any transfer of such
Subsidiary Securities nor acknowledge any Lien in favor of any other
Person on such Subsidiary Securities, without the prior written consent
of the Agent, in each instance, until it receives notice from the Agent
that all Liens on such Collateral in favor of the Agent for the benefit
of the Agent and the Lenders have been released or terminated, and (4)
agrees that upon receipt of notice from the Agent that an Event of
Default has occurred and is continuing and that the Subsidiary
Securities identified in such notice have been transferred to a
transferee identified in such notice, it will duly record such transfer
of Subsidiary Securities on the appropriate registry without requiring
further consent from the pledgor and shall thereafter treat the
transferee as the sole record and beneficial owner of such Subsidiary
Securities pending further transfer, notwithstanding any contrary
instruction received from the pledgor;
(g) an opinion or opinions of counsel to the New Subsidiary
and to any party pledging any Subsidiary Securities of the New
Subsidiary, if any, dated as of the date of delivery of the Facility
Guaranty and other Loan Documents provided for in this SECTION 9.20 (as
applicable) and addressed to the Agent and the Lenders, in form and
substance reasonably acceptable to the Agent (which opinion may include
assumptions and qualifications of similar effect to those contained in
the opinions of counsel delivered pursuant to SECTION 7.1(a)), to the
effect (as applicable) that:
(i) the New Subsidiary and, if applicable, such
pledgor is duly organized, validly existing and in good
standing in the jurisdiction of its formation, has the
requisite power and authority to own its properties and
conduct its business as then owned and then conducted and
proposed to be conducted and to execute, deliver and perform
the Facility Guaranty and the other Loan Documents described
in this SECTION 9.20 to which the New Subsidiary or pledgor is
a signatory, and is duly qualified to transact business and is
in good standing as a foreign corporation or
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partnership in each other jurisdiction in which the character
of the properties owned or leased, or the business carried on
by it, requires such qualification and the failure to be so
qualified would reasonably be likely to result in a Material
Adverse Effect;
(ii) the execution, delivery and performance of the
Facility Guaranty and the other Loan Documents described in
this SECTION 9.20 to which either or both of the New
Subsidiary and the pledgor is a signatory have been duly
authorized by all requisite corporate or partnership action
(including any required shareholder or partner approval), each
of such agreements has been duly executed and delivered and
constitutes the valid and binding agreement of each of the New
Subsidiary and the pledgor, enforceable against the New
Subsidiary and the pledgor, as the case may be, in accordance
with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights
generally and to the effect of general principles of equity
(whether considered in a proceeding at law or in equity);
(iii) the Subsidiary Securities being pledged are
duly authorized, validly issued, fully paid and nonassessable,
and free of any preemptive rights, and the applicable Security
Instrument (including foreign collateral documents) is
effective to create a valid security interest in favor of the
Agent for the benefit of the Agent and the Lenders in such
Subsidiary Securities as constitute Pledged Interests;
(iv) the Uniform Commercial Code financing statements
on Form UCC-1 delivered to the Agent by the New Subsidiary
and/or the pledgor in connection with the delivery of the
Security Instruments of the New Subsidiary and/or the pledgor
have been duly executed by the New Subsidiary and/or the
pledgor and are in form, substance and number sufficient for
filing in all Uniform Commercial Code filing offices in all
jurisdictions in which filing is necessary to perfect in favor
of the Agent for the benefit of the Agent and the Lenders the
Lien on Collateral conferred under such Security Instruments
to the extent such Lien may be perfected by Uniform Commercial
Code filing;
(v) if the Pledged Interests owned by the New
Subsidiary, or the Pledged Interests issued by the New
Subsidiary, constitute securities under Article 8 of the
Uniform Commercial Code, and such Pledged Interests are
represented by certificates, possession of such certificated
Pledged Interests by the Agent is sufficient to perfect in
favor of the Agent and the Lenders a security interest in such
Pledged Interests; and
(vi) in the event the New Subsidiary is a Material
Foreign Subsidiary, that under the laws of the applicable
foreign jurisdiction, all agreements, notices and other
documents that are required to be executed, delivered, filed
or recorded and all other action required to be taken, within
or pursuant to the laws of such jurisdiction to perfect the
Lien conferred in favor of the Agent under the applicable
Security Instrument as against creditors of and purchasers for
value from the holder of the
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Pledged Interests has been duly executed, delivered, filed,
recorded or taken, as the case may be; and
(h) current copies of the Organizational Documents and
Operating Documents of the New Subsidiary and the pledgor, if any,
certified resolutions (or duly effected consent actions) of the Board
of Directors, partners, or appropriate committees thereof (and, if
required by such Organizational Documents, Operating Documents or
applicable law, of the shareholders, members or partners) of the New
Subsidiary and the pledgor, if any, authorizing the actions and the
execution and delivery of documents described in this SECTION 9.20.
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ARTICLE X
NEGATIVE COVENANTS
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
10.1. FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH. Permit Consolidated Net Worth to be less
than (i) from the Closing Date until (but excluding) the last day of the fiscal
quarter of the Borrower in which the Closing Date occurs, $38,450,000(1), and
(ii) as at the last day of each fiscal quarter of the Borrower following the
Closing Date and until (but excluding) the last day of the next following fiscal
quarter of the Borrower, the sum of (A) the amount of Consolidated Net Worth
required to be maintained pursuant to this SECTION 10.1(a) as at the end of the
immediately preceding fiscal quarter, plus (B) 70% of Consolidated Net Income
(with no reduction for net losses during any period) for the fiscal quarter of
the Borrower ending on such day (including within "Consolidated Net Income"
certain items otherwise excluded, as provided for in the definition of
"Consolidated Net Income"), plus (C) 70% of the aggregate amount of all
increases in the stated capital and additional paid-in capital accounts of the
Borrower resulting from the issuance of equity securities or other capital
investments.
(b) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage Ratio
as of the end of any Four-Quarter Period to be greater than 2.50 to 1.00.
(c) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the Consolidated
Fixed Charge Coverage Ratio as of the end of the respective Four-Quarter Periods
set forth below to be less than that set forth opposite each such Four-Quarter
Period:
Four-Quarter Period Ending Fixed Charge Coverage Ratio Must Exceed
-------------------------- ---------------------------------------
1.50 to 1.00
August 31, 1999,
November 30, 1999,
February 29, 2000,
May 31, 2000, and
August 1, 2000
November 30, 2000 and thereafter 1.75 to 1.00
--------
(1) This number will be the GREATER of (A) $35,000,000 and (B) 50%
of the pro forma historical Consolidated Net Worth of the
Borrower and its Subsidiaries, giving effect to the Line of
Business Transfer, the Spinoff and the Penn Racquet Sports
Asset Disposition, as of August 31, 1999, as agreed by the
parties.
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10.2. ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, except a Permitted Acquisition.
10.3. LIENS. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than the
following (all of which shall be collectively referred to as "Permitted Liens");
(a) Liens created under the Security Instruments in favor of
the Agent and the Lenders, and otherwise existing as of the date hereof
and as set forth in SCHEDULE 8.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted, which, except as expressly so specified on SCHEDULE 8.7, are
inferior in respect of the Collateral to the Liens conferred under the
Security Instruments, and with respect to which adequate reserves or
other appropriate provisions are being maintained as required by GAAP
and which Liens are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted, which, except as expressly so specified on
SCHEDULE 8.7, are inferior in respect of the Collateral to the Liens
conferred under the Security Instruments, and with respect to which
adequate reserves or other appropriate provisions are being maintained
as required by GAAP and which Liens are not yet enforceable against
other creditors;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary;
(f) purchase money Liens to secure Indebtedness permitted
under SECTION 10.4(d) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than
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75% of the purchase price of such assets as of the date of purchase
thereof and no property other than the assets so purchased secures such
Indebtedness;
(g) Liens arising in connection with Capital Leases otherwise
permitted hereunder; provided that no such Lien shall extend to any
Collateral or to any other property other than the assets subject to
such Capital Leases;
(h) Liens on assets acquired in an Acquisition permitted under
SECTION 10.2 hereof so long as such Liens (i) are not incurred in
contemplation of such Acquisition and (ii) do not extend to any assets
other than the assets being acquired in such Acquisition; and
(i) other Liens securing Indebtedness in de minimis amounts,
but in no event securing Indebtedness in an aggregate amount in excess
of $5,000,000.
10.4. INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness of the Borrower, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in SCHEDULE 8.6; PROVIDED, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended, modified or
supplemented after the Closing Date to change any terms of
subordination, repayment or rights of enforcement, conversion, put,
exchange or other rights from such terms and rights as in effect on the
Closing Date;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) purchase money Indebtedness described in SECTION 10.3(f)
not to exceed an aggregate outstanding principal amount at any time of
$15,000,000;
(e) Indebtedness arising from Rate Hedging Obligations
permitted under SECTION 10.15;
(f) Indebtedness subordinated to the Obligations on such terms
and conditions as shall be acceptable to the Required Lenders, but in
no event shall the aggregate principal amount of such Indebtedness
exceed 7.5% of Consolidated Total Assets on any date of incurrence
thereof (the "Subordinated Debt"); PROVIDED, none of the instruments
and agreements evidencing or governing any Subordinated Debt shall be
amended, modified or supplemented after the date of their execution and
delivery to change any terms of subordination, repayment or rights of
enforcement, conversion, put, exchange or other rights from such terms
and rights are in effect on such date without the consent of the
Required Lenders;
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(g) unsecured intercompany Indebtedness for loans and advances
made by the Borrower or any Guarantor to the Borrower or any Guarantor,
provided that such intercompany Indebtedness is evidenced by a
promissory note or similar written instrument acceptable to the Agent
which provides that such Indebtedness is subordinated to obligations,
liabilities and undertakings of the holder or owner thereof under the
Loan Documents on terms acceptable to the Agent;
(h) additional unsecured Indebtedness for Money Borrowed not
otherwise covered by clauses (a) through (g) above, provided that the
aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (h) shall in no event exceed $20,000,000 at
any time;
(i) Indebtedness extending the maturity of, or renewing,
refunding or refinancing, in whole or in part, Indebtedness incurred
under clauses (a), (d), (e), (f) and (h) of this SECTION 10.4, provided
that the terms of any such extension, renewal, refunding or refinancing
Indebtedness (and of any agreement or instrument entered into in
connection therewith) are no less favorable to the Agent and the
Lenders than the terms of the Indebtedness as in effect prior to such
action, and provided further that (1) the aggregate principal amount of
or interest rate or rates and fees payable on such extended, renewed,
refunded or refinanced Indebtedness shall not be increased by such
action, (2) the group of direct or contingent obligors on such
Indebtedness shall not be expanded as a result of any such action, and
(3) immediately before and immediately after giving effect to any such
extension, renewal, refunding or refinancing, no Default or Event of
Default shall have occurred and be continuing.
10.5. TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose of
any assets of the Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of assets of the
Borrower or any Subsidiary to the Borrower, any Guarantor or any Material
Subsidiary whose Pledged Interests have been pledged pursuant to ARTICLE V,
SECTION 9.20 or the terms of any Pledge Agreement, (c) dispositions of equipment
which, in the aggregate during any Fiscal Year, have a fair market value or book
value, whichever is less, of $20,000,000 or less and is not replaced by
equipment having at least equivalent value, (d) dispositions of property that is
substantially worn, damaged, obsolete or, in the judgment of the Borrower, no
longer best used or useful in its business or that of any Subsidiary, (e)
transfers of assets necessary to give effect to merger or consolidation
transactions permitted by SECTION 10.7, (f) the disposition of Eligible
Securities in the ordinary course of management of the investment portfolio of
the Borrower and its Subsidiaries, (g) transfer of assets or capital stock in
connection with the Vehicle Sealing Sale, (h) the Line of Business Transfer and
the Spinoff, and (i) the sale, lease or transfer of real property of the
Borrower or any Subsidiary so long as (i) with respect to such real property,
the representation and warranty set forth in SECTION 8.15 hereof is true and
correct at the time of such sale, lease or transfer, and (ii) such real property
is not, in the reasonable business judgment of the Borrower, necessary for the
conduct of the business of the Borrower or any of its Subsidiaries, and (iii)
the aggregate fair market value of the real property subject to all such sales,
leases and transfers during the existence of this Agreement does not exceed
$100,000,000.
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10.6. INVESTMENTS. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in SCHEDULE 8.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) loans and advances to and investments in Subsidiaries
which are Guarantors;
(f) loans between the Borrower and the Guarantors described in
SECTION 10.4(g);
(g) loans and advances to employees of the Borrower for
travel, entertainment and relocation expenses in the ordinary course of
business;
(h) required investments in or contributions to (i) Employee
Benefit Plans, (ii) executive compensation plans, and (iii) stock or
option purchase or bonus plans or as required under ERISA or the Code
or the fiduciary standards thereunder; and
(i) other loans, advances and investments in an aggregate
principal amount at any time outstanding not to exceed $15,000,000.
10.7. MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of all or a substantial part of its
assets (other than the Line of Business Transfer, the Spinoff and sales
permitted under SECTION 10.5; PROVIDED, HOWEVER, (i) any Subsidiary of the
Borrower may merge or transfer all or substantially all of its assets into or
consolidate with the Borrower or any wholly- owned Subsidiary of the Borrower,
and (ii) any other Person may merge into or consolidate with the Borrower
(provided that the Borrower is the surviving corporation) or any wholly-owned
Subsidiary and any Subsidiary may merge into or consolidate with any other
Person in order to consummate an Acquisition permitted by SECTION 10.2, PROVIDED
FURTHER, that any resulting or surviving entity shall execute and deliver such
agreements and other documents, including a Facility Guaranty, and take such
other action as the Agent may require to evidence or confirm its express
assumption of the obligations and liabilities of its predecessor entities under
the Loan Documents.
10.8. RESTRICTED PAYMENTS. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing;
PROVIDED, HOWEVER, the Borrower may make the
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following Restricted Payments in any Fiscal Year (on a non-cumulative basis,
with the effect that amounts not paid in any Fiscal Year may not be carried over
for payment in a subsequent period) if immediately prior to and after giving
effect thereto no Default or Event of Default shall exist or occur and be
continuing: (a) cash dividends as determined by the board of directors of the
Borrower in the exercise of its reasonable business judgement, and (b) other
Restricted Payments not to exceed $15,000,000 in the aggregate.
10.9. TRANSACTIONS WITH AFFILIATES. Other than transactions permitted
under SECTIONS 10.7 and 10.8 and the transactions contemplated by the
Transaction Documents, enter into any transaction after the Closing Date,
including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services, (b) that the Borrower or any Subsidiary may render services to such
Persons for compensation at the same rates generally charged by the Borrower or
such Subsidiary and (c) in either case in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's (or any Subsidiary's)
business consistent with past practice of the Borrower and its Subsidiaries and
upon terms no less favorable to the Borrower (or any Subsidiary) than would be
obtained in a comparable arm's-length transaction with a Person not an Affiliate
of the Borrower.
10.10. COMPLIANCE WITH ERISA, THE CODE AND FOREIGN BENEFIT LAWS. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit for a period of thirty (30) or more consecutive
days the aggregate present value of all benefit liabilities under all
Pension Plans to exceed the current value of the assets of such Pension
Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) to exist with respect
to any Pension Plan, whether or not waived, for a period in excess of
ninety (90) consecutive days; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed, unless such occurrence could not reasonably be expected to
have a Material Adverse Effect; or
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(f) permit the establishment of any Employee Benefit Plan
providing post- retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof.
10.11. FISCAL YEAR. Change its Fiscal Year.
10.12. DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with (a) the dissolution or
liquidation of a Subsidiary in which all proceeds thereof are paid to the
Borrower, or (b) a merger or consolidation permitted pursuant to SECTION 10.7.
10.13. LIMITATIONS ON SALES AND LEASEBACKS. Enter into any arrangement
or arrangements with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property, whether now owned or hereafter acquired
in a single transaction or series of transactions, which has been or is to be
sold or transferred by the Borrower or any 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 Borrower or any
Subsidiary, except to the extent the fair market value of all real or personal
property subject to any such arrangement or arrangements (measured at the time
of the transfer giving rise to such arrangement), in the aggregate, does not
exceed $20,000,000 at any time.
10.14. CHANGE IN CONTROL. Cause, suffer or permit to exist or occur any
Change of Control.
10.15. RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except (a) pursuant to Swap Agreements in an aggregate
notional amount not to exceed at any time $125,000,000, and (b) forward currency
exchange agreements; PROVIDED, HOWEVER, that no Rate Hedging Obligations shall
be incurred for speculative purposes.
10.16. NEGATIVE PLEDGE CLAUSES. Enter into or cause, suffer or permit
to exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement or any other Loan Documents which prohibits or limits
the ability of any of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, PROVIDED that the Borrower and any Subsidiary
may enter into such an agreement in connection with, and that applies only to,
property acquired with the proceeds of purchase money Indebtedness permitted
hereunder.
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10.17. PREPAYMENTS, ETC. OF INDEBTEDNESS. (a) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Indebtedness; or
(b) amend, modify or change in any manner any term or condition of any
Indebtedness described in SECTION 10.4(a), (d), (e), (f) OR (h) or any lease so
that the terms and conditions thereof are less favorable to the Agent and the
Lenders than the terms of such Indebtedness or leases as of the Closing Date.
10.18. AEROJET GOVERNMENT CONTRACTING AUTHORITY. Become suspended or
debarred from contracting or otherwise engaging in business with any
Governmental Authority or from exporting products in any material amount for any
material amount of time, which such suspension or debarment has not been stayed
or removed within sixty (60) days of its imposition.
10.19. AMENDMENTS TO LINE OF BUSINESS TRANSFER DOCUMENTS AND SPINOFF
DOCUMENTS. Amend, modify or change in any manner any term or condition of any of
the Line of Business Transfer Documents or any of the Spinoff Documents (i) so
that the terms and conditions thereof are less favorable to the Agent and the
Lenders than the terms and conditions of such documents as of the Closing Date,
or (ii) that would be reasonably likely to result in a Material Adverse Effect.
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ARTICLE XI
EVENTS OF DEFAULT AND ACCELERATION
11.1. EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of ARTICLE II or ARTICLE III or ARTICLE IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made, and shall continue for a period
of three (3) or more days, in the due and punctual payment of any
amount of interest on any Loan, Reimbursement Obligation or other
Obligation or of any fees or other amounts payable to any of the
Lenders or the Agent on the date on which the same shall be due and
payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in SECTION 9.8, 9.12, 9.13, 9.20 or ARTICLE
X;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the Agent
or a senior executive officer of the Borrower becomes aware of such
default, or if a default shall be made in the performance or observance
of, or shall occur under, any covenant, agreement or provision
contained in any of the other Loan Documents (beyond any applicable
grace period, if any, contained therein) or in any instrument or
document evidencing or creating any obligation, guaranty, or Lien in
favor of the Agent or any of the Lenders or delivered to the Agent or
any of the Lenders in connection with or pursuant to this Agreement or
any of the Obligations, or if any Loan Document ceases to be in full
force and effect (other than as expressly provided for hereunder or
thereunder or with the express written consent of the Agent), or if
without the written consent of the Lenders, this Agreement or any other
Loan Document shall be disaffirmed or shall ter minate, be terminable
or be terminated or become void or unenforceable for any reason
whatsoever (other than as expressly provided for hereunder or
thereunder or by reason of any action by the Lenders or the Agent); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness or Rate Hedging Obligation (other than the
Loans and other Obligations) of the Borrower or any Subsidiary in an
amount not less than (A) $5,000,000 with respect to any individual
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Indebtedness, or (B) $10,000,000 with respect to all Indebtedness in
the aggregate outstanding, or (ii) a default, which is not waived, in
the performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which any
such Indebtedness or Rate Hedging Obligation may have been issued,
created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, or (iii) any other event of default as specified in any
agreement or instrument under or pursuant to which any such
Indebtedness or Rate Hedging Obligation may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Subsidiary, and
such default or event of default shall continue for more than the
period of grace, if any, therein specified, or such default or event of
default shall permit the holder of any such Indebtedness (or any agent
or trustee acting on behalf of one or more holders) to accelerate the
maturity thereof or to require the mandatory redemption, repurchase or
call thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any other Credit Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary or other Credit Party
shall be unable to pay its debts (other than debts owed directly to the
Borrower or another Subsidiary) generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect for
a period of sixty (60) days, or approve a petition filed against the
Borrower or any Subsidiary seeking liquidation, reorganization or
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state, which petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid of debtors,
a court of competent jurisdiction shall assume custody or control of
the Borrower or any Subsidiary or of the whole or any substantial part
of its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against the Borrower or any Subsidiary
any proceeding or petition seeking reorganization, arrangement or
similar relief under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the Borrower or any Subsidiary takes any action to
indicate its consent to or approval of any such proceeding or petition;
or
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(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $10,000,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment, injunction
or execution against any of the Borrower's or Subsidiaries' properties
for any amount in excess of $10,000,000 (individually or in the
aggregate); and such judgment, attachment, injunction or execution
remains unpaid, unstayed, undischarged, unbonded or undismissed for a
period of sixty (60) days; or
(j) if the Borrower or any Material Subsidiary shall, other
than in the ordinary course of business (as determined by past
practices), suspend all or any part of its operations material to the
conduct of the business of the Borrower or such Material Subsidiary for
a period of more than 60 days; or
(k) if the Borrower or any Subsidiary shall breach any of the
material terms or conditions of any Swap Agreement and such breach
shall continue beyond any grace period, if any, relating thereto
pursuant to the terms of such Swap Agreement, or if the Borrower or any
Subsidiary shall disaffirm or seek to disaffirm any such agreement or
any of its obligations thereunder; or
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents; or
(m) if the Borrower or any of its Subsidiaries receives notice
of any violation, non-compliance, or liability or potential liability
under Environmental Laws, or the Borrower or any of its Subsidiaries is
in violation of or is not in compliance with or has incurred liability
or potential liability under Environmental Laws, which would reasonably
be expected to result in a Material Adverse Effect and which, with
respect to any violation or non-compliance, has not been cured in all
material respects during any applicable cure period, PROVIDED that the
Required Lenders have given the Borrower notice that the same
constitutes an Event of Default;
(n) any determination, whether judicial, consensual or
otherwise, is made with respect to any patent, intellectual property or
other property right that results in the inability of Fine Chemicals to
utilize any material technology in its production operations, except to
the extent such determination will not, in the opinion of the Agent, be
reasonably likely to have a Material Adverse Effect; or
(o) the Aerojet Settlement Agreement shall at any time cease
to be in full force and effect pursuant to its terms as in effect on
the Closing Date, or any party thereto shall opt out of such Aerojet
Settlement Agreement, or any Governmental Authority party thereto shall
raise any defense to its obligations thereunder, except to the extent
such occurrence will not, in the opinion of the Agent, be reasonably
likely to have a Material Adverse Effect;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
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(A) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders and the
Issuing Bank to make further Revolving Loans and Swing Line
Loans or to issue additional Letters of Credit terminated,
whereupon the obligation of each Lender to make further
Revolving Loans, of Bank of America to make further Swing Line
Loans, and of the Issuing Bank to issue additional Letters of
Credit, hereunder shall terminate immediately, and (ii) the
Agent shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the
Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other
obligations of the Borrower to the Agent and the Lenders,
shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; PROVIDED,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to make Revolving Loans, of Bank of
America to make Swing Line Loans, and of the Issuing Bank to
issue Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of any
action by the Agent or the Required Lenders or notice to the
Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
(C) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
11.2. AGENT TO ACT. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
11.3. CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
11.4. NO WAIVER. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies
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under any Loan Document or otherwise available to it shall operate as a waiver
of any rights or remedies and no single or partial exercise of any rights or
remedies shall operate as a waiver or preclude the exercise of any other rights
or remedies hereunder or of the same right or remedy on a future occasion.
11.5. ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
ARTICLE XI hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) the reasonable expenses incurred in connection with
retaking, holding, preserving, processing, maintaining or preparing for
sale or other disposition of, any Collateral, including reasonable
attorney's fees and legal expenses pertaining thereto;
(b) amounts due to the Lenders and the Issuing Bank pursuant
to SECTIONS 4.6(a), 4.6(b), 4.6(c), AND 13.5;
(c) amounts due to the Agent pursuant to SECTION 4.6(d);
(d) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(e) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(f) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to SECTION 11.1(B);
(g) amounts due to the Issuing Bank, the Agent and the Lenders
pursuant to SECTIONS 3.2(h), 9.16 and 13.9;
(h) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(i) amounts due to any of the Lenders or their affiliates in
respect of Obligations consisting of liabilities under any Swap
Agreement with any of the Lenders or their affiliates on a pro rata
basis according to the amounts owed; and
(j) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XII
THE AGENT
12.1. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in SECTION 12.5 and
the first sentence of SECTION 12.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
12.2. RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Credit Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in
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accordance with SECTION 13.1 hereof. As to any matters not expressly provided
for by this Agreement, the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding on all of the Lenders; PROVIDED, HOWEVER, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to any Loan Document or applicable law or unless 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 any such action.
12.3. DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to SECTION 12.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, PROVIDED THAT, unless and until the Agent shall have received such
directions, the Agent 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 interest of the Lenders.
12.4. RIGHTS AS LENDER. With respect to its Revolving Credit Commitment
and the Loans made by it and Letters of Credit issued by it, Bank of America
(and any successor acting as Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. Bank of America (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with any
Credit Party or any of its Subsidiaries or affiliates as if it were not acting
as Agent, and Bank of America (and any successor acting as Agent) and its
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or affiliates for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders.
12.5. INDEMNIFICATION. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under SECTION 13.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document; PROVIDED that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs or expenses payable by the Borrower under SECTION
13.5, to the extent that the Agent is not promptly reimbursed for such costs and
expenses by
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the Borrower. The agreements contained in this SECTION 12.5 shall survive
payment in full of the Loans and all other amounts payable under this Agreement.
12.6. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Credit Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the 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 analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
12.7. RESIGNATION OF AGENT. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this ARTICLE XII shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
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ARTICLE XIII
MISCELLANEOUS
13.1. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Revolving Note, and its Revolving Credit Commitment); PROVIDED, HOWEVER,
that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this Agreement,
any such partial assignment shall be in an amount at least equal to $5,000,000
or an integral multiple of $5,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under this
Agreement and its Revolving Note (except that any assignment by Bank of America
shall not include its rights, benefits or duties as the Issuing Bank or as the
provider of Swing Line Loans); and
(iv) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance in the form of
EXHIBIT B hereto, together with any Revolving Note subject to such assignment
and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Revolving Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with SECTION 6.6.
(b) The Agent shall maintain at its address referred to in SECTION 13.2
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Revolving Loans
owing to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent
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shall, if such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all
or a portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment or its
Loans); PROVIDED, HOWEVER, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the benefit of the yield protection
provisions contained in ARTICLE VI and the right of set-off contained in SECTION
13.3, and (iv) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Note and to approve
any amendment, modification, or waiver of any provision of this Agreement (other
than amendments, modifications, or waivers decreasing the amount of principal of
or the rate at which interest is payable on such Loans or Note, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Note, or extending its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants).
(g) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and permitted
assigns of such party and all covenants, provisions and agreements by or on
behalf of the Borrower which are contained in the Loan Documents shall inure to
the benefit of the successors and permitted assigns of the Agent, the Lenders,
or any of them. The Borrower may not assign or otherwise transfer to any other
Person any right, power, benefit, or privilege (or any interest therein)
conferred hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any other Person any duty, obligation, or liability
arising hereunder or under any of the other Loan Documents, and any such
purported assignment, delegation or other transfer shall be void.
13.2. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or
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registered mail, return receipt requested, in each case delivered, transmitted
or mailed, as the case may be, to the address or telefacsimile number, as
appropriate, set forth below or such other address or number as such party shall
specify by notice hereunder:
(a) if to the Borrower:
GenCorp Inc.
▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President
and Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
GenCorp Inc.
▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent:
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, 11th Floor
CA9-706-11-03
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Credit Party, at the address set
forth on the signature page of the Facility Guaranty
or Security Instrument executed by such Credit Party,
as the case may be.
13.3. RIGHT OF SET-OFF; ADJUSTMENTS. (a) Upon the occurrence and during
the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; PROVIDED, HOWEVER, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this SECTION 13.3 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, 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 or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders 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; 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. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this SECTION 13.3 may, to
the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
13.4. SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Revolving Credit Commitment hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein.
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13.5. EXPENSES. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this
Agreement, the other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Agent (including the cost of internal counsel) with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses and the cost of
internal counsel), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered hereunder.
13.6. AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than this Agreement) the Agent on behalf of the Required Lenders
(and, if ARTICLE XII or the rights or duties of the Agent are affected thereby,
by the Agent); PROVIDED that no such amendment or waiver shall, unless signed by
all the Lenders, (i) increase the Revolving Credit Commitments of the Lenders or
the Total Revolving Credit Commitment, (ii) reduce the principal of or rate of
interest on any Revolving Loan or any fees or other amounts payable hereunder,
(iii) postpone any date fixed for the payment of any scheduled installment of
principal of or interest on any Loan or any fees or other amounts payable
hereunder or for termination of any Revolving Credit Commitment, (iv) change the
percentage of the Revolving Credit Commitment or of the unpaid principal amount
of the Notes, or the number of Lenders, which shall be required for the Lenders
or any of them to take any action under this SECTION 13.6 or any other provision
of this Agreement or (v) release any Guarantor or all or substantially all of
the Collateral except as expressly contemplated in the Loan Documents; and
PROVIDED, FURTHER, that no such amendment or waiver that affects the rights,
privileges or obligations of Bank of America as provider of Swing Line Loans,
shall be effective unless signed in writing by Bank of America or that affects
the rights, privileges or obligations of the Issuing Bank as issuer of Letters
of Credit, shall be effective unless signed in writing by the Issuing Bank. At
any time, with respect to real property on which there has been any known or
suspected release or existence of Hazardous Materials and on which a Lien has
been granted pursuant to a Security Instrument to secure the Obligations
hereunder, the commencement of foreclosure proceedings or other remedial action
by the Agent or the Lenders under the applicable Security Instrument that would
result in the transfer of any fee interest in such real property from the
Borrower or any of its Subsidiaries to the Agent or any Lender shall require the
consent of all of the Lenders.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
13.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary
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in making proof of this Agreement to produce or account for more than one such
fully-executed counterpart.
13.8. TERMINATION. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof (other than Obligations in
the nature of continuing indemnities or expense reimbursement obligations not
yet due and payable, which shall continue) or the Borrower has furnished the
Lenders and the Agent with an indemnification satisfactory to the Agent and each
Lender with respect thereto. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrower shall be liable to, and shall indemnify and hold
the Agent or such Lender harmless for, the amount of such payment surrendered
until the Agent or such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent or
the Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent or the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
13.9. INDEMNIFICATION; LIMITATION OF LIABILITY. (a) The Borrower agrees
to indemnify and hold harmless the Agent, BAS and each Lender and each of their
affiliates and their respective officers, directors, employees and counsel
(each, an "Indemnified Party") from and against any and all claims, damages,
losses, liabilities, costs, and expenses (including, without limitation,
reasonable attorneys' fees) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of (including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of defense in connection
therewith) the Spinoff, the Line of Business Transfer, the Revolving Credit
Facility, the Transaction Documents, any of the transactions contemplated
therein or herein or the actual or proposed use of the proceeds of the Loans,
except to the extent such claim, damage, loss, liability, cost, or expense is
found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this SECTION 13.9 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Borrower agrees that no Indemnified Party shall have
any liability (whether direct or indirect, in contract or tort or otherwise) to
it, any of its Subsidiaries, any Guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the transactions
contemplated herein or in any of the
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Transaction Documents, except to the extent that such liability is found in a
final non-appealable judgment by a court of competent jurisdiction to have
directly resulted from such Indemnified Party's gross negligence or willful
misconduct. The Borrower agrees not to assert any claim against the Agent, any
Lender, any of their affiliates, or any of their respective directors, officers,
employees, attorneys, agents, and advisers, on any theory of liability, for
special, indirect, consequential, or punitive damages arising out of or
otherwise relating to the Transaction Documents, any of the transactions
contemplated therein or herein or the actual or proposed use of the proceeds of
the Loans.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 13.9 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
13.10. SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
13.11. ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter dated as
of July 1, 1999, executed by Bank of America and BAS and accepted by the
Borrower, survive the closing of the Revolving Credit Facility and Letter of
Credit Facility, shall survive and continue in effect).
13.12. AGREEMENT CONTROLS. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
13.13. USURY SAVINGS CLAUSE. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
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foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
13.14. PAYMENTS. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Agent at the Principal Office in Dollars and in immediately available
funds, without setoff, deduction or counterclaim. Subject to the definition of
"Interest Period" herein, whenever any payment under this Agreement or any other
Loan Document shall be stated to be due on a day that is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time in such case shall be included in the computation of interest and fees,
as applicable, and as the case may be.
13.15. CONFIDENTIALITY. Each Lending Party agrees to keep confidential
any information furnished or made available to it by the Borrower pursuant to
this Agreement that is marked confidential; PROVIDED that nothing herein shall
prevent any Lending Party from disclosing such information (a) to any other
Lending Party or any affiliate of any Lending Party, or any officer, director,
employee, agent, or advisor of any Lending Party or affiliate of any Lending
Party, (b) to any other Person if reasonably incidental to the administration of
the credit facility provided herein, (c) as required by any law, rule, or
regulation, (d) upon the order of any court or administrative agency, (e) upon
the request or demand of any regulatory agency or authority, (f) that is or
becomes available to the public or that is or becomes available to any Lending
Party other than as a result of a disclosure by any Lending Party prohibited by
this Agreement, (g) in connection with any litigation to which such Lending
Party or any of its affiliates may be a party, (h) to the extent necessary in
connection with the exercise of any remedy under this Agreement or any other
Loan Document, and (i) subject to provisions substantially similar to those
contained in this Section, to any actual or proposed participant or assignee.
13.16. SPECIAL FUNDING OPTION.
(a) Notwithstanding anything to the contrary contained herein,
but subject to subparagraph (b) below, any Lender (a "Granting Lender")
may grant to a special purpose funding vehicle (a "SPC"), identified as
such in writing from time to time by the Granting Lender to the Agent
and the Borrower, the option to provide to the Borrower all or part of
any advance of a Loan that such Granting Lender would otherwise be
obligated to make to the Borrower (a "Funding Obligation") pursuant to
this Agreement; PROVIDED THAT (A) nothing herein shall constitute a
commitment by any SPC to make any advance of a Loan; (B) if an SPC
elects not to exercise such option or otherwise fails to provide all or
any part of such advance of a Loan, the Granting Lender shall be
obligated to make such advance
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pursuant to the terms hereof; and (C) the SPC shall have debt
obligations which have been assigned a rating by one or more rating
agencies which rating is at least equal to the rating assigned to
similar debt obligations of the Granting Lender. The making of an
advance of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such advance were
made by such Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the
Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceedings
under the laws of the United States or any State thereof, with respect
to any claims arising or related to this Agreement. In addition,
notwithstanding anything to the contrary contained in this Section
13.16, any SPC may (I) with notice to, but without the prior written
consent of, the Borrower and the Agent and without paying any
processing fee therefor, assign all or a portion of its interests in
any advances of Loans to the Granting Lender and (II) disclose on a
confidential basis in compliance with the terms of Section 13.15 hereof
any non-public information relating to its advances of Loans to any
rating agency, commercial paper dealer or provider of any surety,
guaranty or credit or liquidity enhancement to such SPC. This Section
13.16 may not be amended without the written consent of the SPC.
(b) The granting to, and exercise by any SPC of, the option to satisfy
a Funding Obligation of a Granting Bank as set forth in subparagraph
(a) above is subject to the following:
(i) such Granting Lender's obligations under this
Agreement and the Loan Documents shall remain unchanged,
including without limitation the indemnification obligations
of the Granting Lender pursuant to SECTION 12.5 hereof;
(ii) such Granting Lender shall remain solely
responsible to the other parties hereto for the performance of
all Funding Obligations;
(iii) the Borrower, the Guarantors and the Lenders
(other than the Granting Lender) shall continue to deal solely
and directly with such Granting Lender in connection with such
Granting Lender's rights and obligations under this Agreement,
and the Agent shall continue to deal directly with the
Granting Lender as agent for the SPC with respect to
distribution of payment of principal, interest and fees,
notices of Conversion and Continuation and all other matters;
(iv) such Granting Lender shall retain the sole right
(x) to enforce the obligations of the Borrower relating to its
Loans, its Notes and its Participations, and (y) to approve
any amendment, modification or waiver of any provision of this
Agreement, each of which may, if so agreed in writing between
the Granting Lender and the SPC, require the prior consent of
any such SPC which has exercised the
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option to undertake the Funding Obligation in connection with
such Granting Lender's Commitments and Participations and
Obligations owing thereto before the Granting Lender approves
any such amendment, modification or waiver;
(v) the granting of such option shall not constitute
an assignment to or participation of such SPC of or in the
Granting Lender's Commitments and Participations and
Obligations owing thereto;
(vi) such SPC shall not become a Lender nor acquire
any rights hereunder as a result of the granting of such
option;
(vii) such SPC shall not become obligated or
committed to make Advances as a result of the granting of such
option; and
(viii) if such SPC elects not to exercise such option
or otherwise fails to make all or any part of an Advance, the
Granting Lender shall retain its Funding Obligation and be
obligated to make the entire Advance or any portion of such
Advance not made by such SPC.
(b) Advances made by an SPC hereunder shall be deemed to
satisfy the Funding Obligation and utilize the Revolving Credit
Commitment and Letter of Credit Commitment, as applicable, of the
Granting Lender as if, and to the same extent, such Advances were made
by such Granting Lender.
(c) Each party hereto agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Granting
Lender would otherwise be liable so long as, and to the extent that,
the Granting Lender provides such indemnity or makes such payment.
(d) Notwithstanding anything to the contrary contained in this
Agreement, an SPC may disclose on a confidential basis any nonpublic
information relating to Advances made by such SPC hereunder to any
rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC.
(e) This SECTION 13.16 may not be amended without the prior
written consent of the Granting Lender on behalf of which such SPC has
made all or any part of its Advances which remain outstanding at the
time of such amendment.
13.17. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
100
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APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT
SITTING IN THE ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER
IT AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND THE BORROWER HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 13.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE
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LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH
ACTION, SUIT OR PROCEEDING.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signatures on following pages]
102
109
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
GENCORP INC.
By: /s/ M. E. ▇▇▇▇▇
-----------------------------------------------
Name: M. E. ▇▇▇▇▇
--------------------------------------------
Title: Sr. Vice President, Chief Executive Officer
-------------------------------------------
BANK OF AMERICA, N.A.,
AS AGENT FOR THE LENDERS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Title: Managing Director
---------------------------------------------
CREDIT AGREEMENT
SIGNATURE PAGE 1 OF 12
110
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Managing Director
----------------------------
Lending Office for Base Rate and Eurodollar
Rate Loans:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Credit Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of America, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 1366212250600
Reference: GenCorp Inc.
Attention:Corporate Credit Services
CREDIT AGREEMENT
SIGNATURE PAGE 2 OF 12
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Relationship Manager
----------------------------
Lending Office for Base Rate Loans:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇ ▇▇▇▇▇,
Loan Operations Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇
Reference: BNS San Francisco Loan
Services
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Eurodollar Rate Loans:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇ ▇▇▇▇▇,
Loan Operations Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇
Reference: BNS San Francisco Loan
Services
Attention: ▇▇▇▇▇ ▇▇▇▇▇
CREDIT AGREEMENT
SIGNATURE PAGE 3 OF 12
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
Lending Office for Base Rate Loans:
The Bank of New York
Corporate Banking Administration
One Wall Street
22d Floor, BN OWS ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇/6399
Wire Transfer Instructions:
The Bank of New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: GenCorp Inc.
Reference: IOC 556
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Lending Office for Eurodollar Rate Loans:
The Bank of New York
Corporate Banking Administration
One Wall Street
22d Floor, BN OWS ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇/6399
Wire Transfer Instructions:
The Bank of New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: GenCorp Inc.
Reference: IOC 556
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
CREDIT AGREEMENT
SIGNATURE PAGE 4 OF 12
113
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
-----------------------------
Title: President
----------------------------
Lending Office for Base Rate Loans:
▇▇▇▇▇ Fargo Bank
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇,
Loan Accounting
Specialist
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: 2712-507201
Reference: GenCorp Inc.
Lending Office for Eurodollar Rate Loans:
▇▇▇▇▇ Fargo Bank
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇,
Loan Accounting
Specialist
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
▇▇▇▇▇ Fargo Bank, N.A.
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: 2712-507201
Reference: GenCorp Inc.
CREDIT AGREEMENT
SIGNATURE PAGE 5 OF 12
114
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Account Officer
-------------------------------
Lending Office for Base Rate Loans:
National City Bank
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
National City Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 151804
Account Name: Commercial Loan Operations
Reference: GenCorp
Lending Office for Eurodollar Rate Loans:
National City Bank
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
National City Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 151804
Account Name: Commercial Loan Operations
Reference: GenCorp
CREDIT AGREEMENT
SIGNATURE PAGE 6 OF 12
115
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
Lending Office for Base Rate Loans:
The Northern Trust Company
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇ Honda
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Northern Trust Company
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 5186401000
Reference: GenCorp
Credit to: Commercial Loan Department
Lending Office for Eurodollar Rate Loans:
The Northern Trust Company
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇ Honda
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Northern Trust Company
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 5186401000
Reference: GenCorp
Credit to: Commercial Loan Department
CREDIT AGREEMENT
SIGNATURE PAGE 7 OF 12
116
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title: General Manager
----------------------------
Lending Office for Base Rate Loans:
The Industrial Bank of Japan, Limited
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: GenCorp Inc.
Attention: Credit Administration
Dept.
Lending Office for Eurodollar Rate Loans:
The Industrial Bank of Japan, Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: GenCorp Inc.
Attention: Credit Administration
Dept.
CREDIT AGREEMENT
SIGNATURE PAGE 8 OF 12
117
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. French
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. French
-----------------------------
Title: Group Vice President
----------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Group Vice President
----------------------------
Lending Office for Base Rate Loans:
ABN AMRO Bank N.V.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Team Captain for West
Coast
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
ABN AMRO Bank N.V.--New York
ABA# 026 009580
Account No.: 650-001-1789-41
Account Name: ABN AMRO Bank N.V.--CPU
Reference: GenCorp Inc.
Lending Office for Eurodollar Rate Loans:
ABN AMRO Bank N.V.
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▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Team Captain for West
Coast
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
ABN AMRO Bank N.V.--New York
ABA# 026 009580
Account No.: 650-001-1789-41
Account Name: ABN AMRO Bank N.V.--CPU
Reference: GenCorp Inc.
CREDIT AGREEMENT
SIGNATURE PAGE 9 OF 12
118
BANK ONE, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: First Vice President
----------------------------
Lending Office for Base Rate and Eurodollar Rate
Loans:
Bank One, N.A.
Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Client Services Associate
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank One, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 4811 5286 0000
Account Name: Money Transfer Incoming Account
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
CREDIT AGREEMENT
SIGNATURE PAGE 10 OF 12
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
Lending Office for Base Rate Loans:
Union Bank of California
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Union Bank of California, N.A.
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: Wire Transfer Clearing--
Credit GL 070-196431
Reference: GenCorp Inc.
Attention: Commercial Loan
Operations
Lending Office for Eurodollar Rate Loans:
Union Bank of California
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Union Bank of California, N.A.
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: Wire Transfer Clearing--
Credit GL 070-196431
Reference: GenCorp Inc.
Attention: Commercial Loan
Operations
CREDIT AGREEMENT
SIGNATURE PAGE 11 OF 12
120
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Associate
----------------------------
Lending Office for Base Rate Loans:
Credit Suisse First Boston
5 World Trade Center, 8th Floor
New York, New York 10048
Attention: Mr. ▇▇▇ ▇▇▇▇▇--Loan
Administrator
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇/0576
Wire Transfer Instructions:
Bank of New York
ABA #: ▇▇▇▇▇▇▇▇▇
Account No.: 8900329262
Account Name: CSFB Loan Clearing
Reference: GenCorp Inc.
Lending Office for Eurodollar Rate Loans:
Credit Suisse First Boston
5 World Trade Center, 8th Floor
New York, New York 10048
Attention: Mr. ▇▇▇ ▇▇▇▇▇--Loan
Administrator
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇/0576
Wire Transfer Instructions:
CITIGB2L Citibank, N.A.
London
Swift BIC: CRESU33 CREDIT SUISSE FIRST
BOSTON NEW YORK BRANCH
Account No.: ▇▇▇▇▇▇▇
Account Name: CSFB NY Loan Clearing
Reference: GenCorp Inc.
Currency: EUR
CREDIT AGREEMENT
SIGNATURE PAGE 12 OF 12