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EXHIBIT 10.1
EXECUTION COPY
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$90,000,000
AMENDED AND RESTATED
SENIOR SECURED CREDIT AGREEMENT
among
DAY INTERNATIONAL GROUP, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION,
as Arranger
and
SOCIETE GENERALE,
as Administrative Agent
Dated as of October 19, 1999
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TABLE OF CONTENTS
Page
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Section 1. Definitions ..................................................2
1.1 Defined Terms ................................................2
1.2 Other Definitional Provisions ...............................33
Section 2. Amount and Terms of Commitments .............................33
2.1 Term Loan Commitments .......................................34
2.2 Procedure for Term Loan Borrowing ...........................34
2.3 Repayment of Term Loans .....................................34
2.4 Revolving Credit Commitments ................................34
2.5 Procedure for Revolving Credit Borrowing ....................35
2.6 Swing Line Commitment .......................................36
2.7 Procedure for Swing Line Borrowing; Refunding of
Swing Line Loans ............................................36
2.8 Repayment of Loans; Evidence of Debt ........................38
2.9 Commitment Fees, etc. .......................................39
2.10 Termination or Reduction of Revolving Credit Commitments ....39
2.11 Optional Prepayments ........................................40
2.12 Mandatory Prepayments and Commitment Reductions .............40
2.13 Conversion and Continuation Options .........................42
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches ...43
2.15 Interest Rates and Payment Dates ............................43
2.16 Computation of Interest and Fees ............................44
2.17 Inability to Determine Interest Rate ........................44
2.18 Pro Rata Treatment and Payments .............................45
2.19 Requirements of Law .........................................47
2.20 Taxes .......................................................48
2.21 Indemnity ...................................................50
2.22 Illegality ..................................................51
2.23 Certain Rules Relating to the Payment of Additional
Amounts .....................................................51
Section 3. Letters of Credit ...........................................53
3.1 L/C Commitment ..............................................53
3.2 Procedure for Issuance of Letter of Credit ..................54
3.3 Commissions, Fees and Other Charges .........................54
3.4 L/C Participations ..........................................55
3.5 Reimbursement Obligation of the Borrower ....................56
3.6 Obligations Absolute ........................................56
3.7 Letter of Credit Payments ...................................57
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3.8 Applications ................................................57
Section 4. Representations and Warranties ..............................57
4.1 Financial Condition .........................................57
4.2 No Change ...................................................59
4.3 Corporate Existence; Compliance with Law ....................59
4.4 Corporate Power; Authorization; Enforceable Obligations .....59
4.5 No Legal Bar ................................................59
4.6 No Material Litigation ......................................60
4.7 No Default ..................................................60
4.8 Ownership of Property; Liens ................................60
4.9 Intellectual Property .......................................60
4.10 Taxes .......................................................61
4.11 Federal Regulations .........................................61
4.12 Labor Matters ...............................................61
4.13 ERISA .......................................................61
4.14 Investment Company Act; Other Regulations ...................62
4.15 Subsidiaries ................................................62
4.16 Use of Proceeds .............................................62
4.17 Environmental Matters .......................................62
4.18 Accuracy of Information, etc. ...............................64
4.19 Collateral ..................................................64
4.20 Solvency ....................................................65
4.21 Regulation H ................................................66
4.22 Ownership of Stock ..........................................66
4.23 Senior Indebtedness .........................................66
4.24 Year 2000 Matters ...........................................66
4.25 Mortgaged Property ..........................................66
4.26 Certain Agreements ..........................................66
Section 5. Conditions Precedent ........................................67
5.1 Conditions to Initial Extension of Credit ...................67
5.2 Conditions to Each Extension of Credit ......................71
Section 6. Affirmative Covenants .......................................72
6.1 Financial Statements ........................................72
6.2 Certificates; Other Information .............................73
6.3 Payment of Obligations ......................................74
6.4 Conduct of Business and Maintenance of Existence, etc. ......75
6.5 Maintenance of Property; Insurance ..........................75
6.6 Inspection of Property; Books and Records; Discussions ......75
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6.7 Notices .....................................................75
6.8 Environmental Laws ..........................................76
6.9 Additional Collateral, etc. .................................77
6.10 Surveys for New Mortgaged Properties ........................79
Section 7. Negative Covenants ..........................................79
7.1 Financial Condition Covenants ...............................79
7.2 Limitation on Indebtedness ..................................80
7.3 Limitation on Liens .........................................84
7.4 Limitation on Fundamental Changes ...........................87
7.5 Limitation on Sales of Assets ...............................87
7.6 Limitation on Dividends .....................................88
7.7 Limitation on Capital Expenditures ..........................89
7.8 Limitation on Investments, Loans and Advances ...............89
7.9 Limitation on Optional Payments and Modifications of
Debt Instruments, etc. ....................................91
7.10 Limitation on Transactions with Affiliates ..................92
7.11 Limitation on Sales and Leasebacks ..........................93
7.12 Limitation on Changes in Fiscal Periods .....................94
7.13 Limitation on Negative Pledge Clauses .......................94
7.14 Limitations on Currency and Commodity Hedging Transactions ..94
7.15 Limitation on Lines of Business .............................94
7.16 Limitation on Amendments to Acquisition Documents ...........94
Section 8. Events of Default ...........................................95
Section 9. The Administrative Agent ....................................99
9.1 Appointment .................................................99
9.2 Delegation of Duties ........................................99
9.3 Exculpatory Provisions ......................................99
9.4 Reliance by Administrative Agent ...........................100
9.5 Notice of Default ..........................................100
9.6 Non-Reliance on the Administrative Agent and Other
Lenders .................................................100
9.7 Indemnification ............................................101
9.8 Agent in Its Individual Capacity ...........................102
9.9 Successor Administrative Agent .............................102
9.10 Authorization to Release Liens .............................103
9.11 The Arranger ...............................................103
9.12 Release of Liens on Excluded Foreign Accounts ..............103
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Section 10. Miscellaneous .............................................103
10.1 Amendments and Waivers ....................................103
10.2 Notices ...................................................104
10.3 No Waiver; Cumulative Remedies ............................105
10.4 Survival of Representations and Warranties ................105
10.5 Payment of Expenses .......................................105
10.6 Successors and Assigns; Participations and Assignments ....106
10.7 Adjustments; Set-off ......................................109
10.8 Counterparts ..............................................110
10.9 Severability ..............................................110
10.10 Integration ...............................................110
10.11 GOVERNING LAW .............................................110
10.12 Submission To Jurisdiction; Waivers .......................111
10.13 Acknowledgements ..........................................111
10.14 WAIVERS OF JURY TRIAL .....................................112
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ANNEXES:
A Pricing Grid
SCHEDULES:
1.IA Commitments
1.IB Mortgaged Property
4.4 Consents, Authorizations, Filings and Notices
4.9 Material Claims Regarding Intellectual Property
4.10 Tax Matters
4.15 Subsidiaries
4.17 Environmental Matters
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
7.8(h) Loans and Advances to Officers, Directors, or Employees of Borrower
7.8(1) Investments
7.10 Permitted Transactions with Affiliates
A copy of the Schedules will be furnished supplementally to the SEC upon
request.
EXHIBITS:
A Form of Amended and Restated Borrower Patent and Trademark Security
Agreement
B Form of Borrowing Base Certificate
C Form of Compliance Certificate
D Form of Amended and Restated Guarantee and Collateral Agreement
E Form of Landlord Lien Waiver
F Form of Mortgage
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Exemption Certificate
I Form of Closing Certificate
J Form of Legal Opinion of Debevoise & ▇▇▇▇▇▇▇▇
K Form of Assignment and Acceptance
A copy of the Exhibits will be furnished supplementally to the SEC upon request.
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AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT, dated as of
October 19, 1999, among DAY INTERNATIONAL GROUP, INC., a Delaware corporation
(the "BORROWER"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "LENDERS"), ▇▇ ▇▇▇▇▇ SECURITIES
CORPORATION, as advisor and arranger (in such capacity, the "ARRANGER"), SOCIETE
GENERALE, as administrative agent (in such capacity, the "ADMINISTRATIVE
AGENT").
W I T N E S S E T H:
WHEREAS, the Borrower, certain of the Lenders (the "EXISTING LENDERS"),
the Arranger and the Administrative Agent are parties to the Credit Agreement,
dated as of January 15, 1998 (as amended, the "EXISTING CREDIT AGREEMENT");
WHEREAS, the Borrower expects to acquire through several direct and
indirect wholly-owned Subsidiaries (the "ACQUISITION") all of the issued and
outstanding stock of Varnco Holdings Inc., a New Jersey corporation ("VARNCO"),
▇▇▇▇ Holdings PLC, a company incorporated under the laws of England ("▇▇▇▇
HOLDINGS"), ▇▇▇▇ Aegis Co. GmbH Hautschutzsysteme, a company incorporated under
the laws of Germany ("▇▇▇▇ AEGIS"), ▇▇▇▇ Products Co., Inc. a Texas corporation
("▇▇▇▇ PRODUCTS CO."), JV Tex Realty Corp., a Texas corporation ("JVTEX"), Graph
Tech, Inc. an Ohio corporation ("GRAPH TECH", and collectively with Varnco, ▇▇▇▇
Holding GmbH, ▇▇▇▇ Aegis, ▇▇▇▇ Products Co. and JVTEX, the "▇▇▇▇ COMPANIES") for
aggregate consideration of approximately $60,000,000 (the "ACQUISITION
CONSIDERATION"), pursuant to a Stock Purchase Agreement among the Borrower and
the stockholders of the ▇▇▇▇ Companies, dated as of August 13, 1999 (the
"ACQUISITION AGREEMENT");
WHEREAS, to provide funds to (i) finance a portion of the Acquisition
Consideration, (ii) pay certain fees, transaction costs and expenses related to
the Acquisition and the financing thereof, (iii) refinance and continue the
existing Loans outstanding under the Existing Credit Agreement (the "EXISTING
LOANS") and (iv) finance working capital and other general corporate needs of
the Borrower and its Subsidiaries, the Borrower has requested that the Lenders
agree to amend and restate the Existing Credit Agreement;
WHEREAS, the Lenders are willing to amend and restate the Existing
Credit Agreement upon and subject to the terms and conditions hereinafter set
forth;
WHEREAS, all indebtedness and commitments under the Existing Credit
Agreement, as amended and restated in connection with this Agreement, will be
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continued under this Agreement and all obligations of the Loan Parties under the
Loan Documents (as such terms are defined herein) and all Liens created under
the Loan Documents will be continued, amended and restated as provided herein
and therein and will not be cancelled or discharged;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS.
1.1 DEFINED TERMS. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"ACCOUNT": as defined in the Uniform Commercial Code as in effect in
the State of New York.
"ACQUISITION": as defined in the recitals hereto.
"ACQUISITION AGREEMENT": as defined in the recitals hereto.
"ADJUSTMENT DATE": as defined in the Pricing Grid.
"AFFECTED EURODOLLAR LOANS": as defined in Section 2.22.
"AFFILIATE": as to any Person, any other Person (other than a Wholly
Owned Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting power
for the election of directors (or persons performing similar functions) of such
Person or (b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"AGGREGATE EXPOSURE": with respect to any Lender, an amount equal to
(a) until the Closing Date, the aggregate amount of such Lender's Commitments
and (b) thereafter, the sum of (i) the aggregate unpaid principal amount of such
Lender's Term Loans and (ii) the amount of such Lender's Revolving Credit
Commitment or, if the Revolving Credit Commitments have been terminated, the
amount of such Lender's Revolving Extensions of Credit.
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"AGGREGATE EXPOSURE PERCENTAGE" with respect to any Lender, the ratio
(expressed as a percentage) of such Lender's Aggregate Exposure to the Aggregate
Exposure of all Lenders.
"AGREEMENT": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"AIP AGREEMENT": the Stock Purchase Agreement, dated as of December 18,
1997, by and among Greenwich IV LLC, GSD Acquisition Corp., and the Stockholders
of Day International Group, Inc. parties thereto.
"ALTERNATIVE CURRENCY": any freely available currency that is freely
transferrable and freely convertible into Dollars and requested by the Borrower
and acceptable to the Issuing Lender and the Administrative Agent.
"ALTERNATIVE CURRENCY L/C EXPOSURE": at any time, the Assigned Dollar
Value of the aggregate undrawn amount of all outstanding Letters of Credit
denominated in an Alternative Currency at such time.
"APPLICABLE MARGIN": (a) 2.75% per annum, in the case of Eurodollar
Loans and (b) 1.75% per annum, in the case of Base Rate Loans; PROVIDED, that on
and after the first Adjustment Date occurring after March 31, 2000, the
Applicable Margin with respect to Revolving Credit Loans, Swing Line Loans and
Term Loans will be determined pursuant to the Pricing Grid.
"APPLICATION": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a Letter of
Credit.
"▇▇▇▇▇▇▇▇▇ PURCHASE AGREEMENT": the Purchase Agreement, dated as of
July 29, 1999, among Day International, Inc., ▇▇▇▇▇▇▇▇▇ World Industries, Inc.
and ▇▇▇▇▇▇▇▇▇ World Industries GmbH.
"▇▇▇▇▇▇▇▇▇ TPO": ▇▇▇▇▇▇▇▇▇ Textile Products GmbH and the assets
acquired from ▇▇▇▇▇▇▇▇▇ World Industries, Inc., pursuant to the ▇▇▇▇▇▇▇▇▇ TPO
Acquisition.
"▇▇▇▇▇▇▇▇▇ TPO ACQUISITION": the acquisition by Day International, Inc.
of certain assets of ▇▇▇▇▇▇▇▇▇ World Industries, Inc., a Pennsylvania
corporation, and the equity securities of ▇▇▇▇▇▇▇▇▇ Textile Products GmbH as set
forth in the ▇▇▇▇▇▇▇▇▇ Purchase Agreement.
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"ASSET SALE": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by clause
(a), (b), (c), (d), (g), (h), (i) or (j) of Section 7.5) which yields gross
proceeds to the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other
non-cash proceeds) in excess of $250,000.
"ASSIGNED DOLLAR VALUE": (a) in respect of the undrawn amount of any
Letter of Credit denominated in an Alternative Currency, the Dollar Equivalent
thereof determined based upon the applicable Spot Exchange Rate as of (i) the
date of issuance of such Letter of Credit, until the first Calculation Date
thereafter and (ii) thereafter, the most recent Calculation Date and (b) in
respect of a Reimbursement Obligation denominated in an Alternative Currency,
the Dollar Equivalent thereof determined based upon the applicable Spot Exchange
Rate as of the date such Reimbursement Obligation was incurred.
"ASSIGNEE": as defined in Section 10.6(c).
"ASSIGNOR": as defined in Section 10.6(c).
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Credit Commitment OVER (b) such Lender's Revolving Extensions of
Credit; PROVIDED, that in calculating any Lender's Revolving Extensions of
Credit for the purpose of determining such Lender's Available Revolving Credit
Commitment pursuant to Section 2.9(a), the aggregate principal amount of Swing
Line Loans then outstanding shall be deemed to be zero.
"BASE RATE": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day, and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "PRIME RAte" shall mean the rate of
interest per annum publicly announced from time to time by the Reference Lender
as its prime or base rate in effect at its principal office in New York City
(the Prime Rate not being intended to be the lowest rate of interest charged by
the Reference Lender in connection with extensions of credit to debtors). Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"BASE RATE LOANS": Loans the rate of interest applicable to which is
based upon the Base Rate.
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"BOARD": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"BORROWING BASE": at any date of determination thereof, an amount equal
to the sum of (i) $5,000,000, (ii) 80% of the Eligible Accounts Receivable at
such date and (iii) 50% of the Eligible Inventory at such date. The Borrowing
Base shall be determined from time to time by the Administrative Agent in its
reasonable judgment by reference to the Borrowing Base Certificate then most
recently delivered to it; PROVIDED that the information contained in such
Borrowing Base Certificate shall not be conclusive in calculating the Borrowing
Base and, after consultation with the Borrower, the Administrative Agent shall
be entitled to adjust the amounts and other information contained therein to the
extent that it believes in its reasonable credit judgment that such adjustment
is appropriate to cause the Borrowing Base (as so adjusted) to reflect the
standards set forth in the definitions of the terms "Eligible Accounts
Receivable" and "Eligible Inventory".
"BORROWING BASE CERTIFICATE": a certificate executed and delivered by
the Borrower, substantially in the form of Exhibit B, delivered pursuant to
Section 6.2(e).
"BORROWING DATE": the Closing Date and any Business Day specified by
the Borrower as a date on which the Borrower requests the relevant Lenders to
make Loans hereunder.
"BUSINESS": as defined in Section 4.17.
"BUSINESS DAY": (i) for all purposes other than as covered by clause
(ii) below, a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) and which is also a day for trading by and between banks
in Dollar deposits in the interbank eurodollar market.
"CALCULATION DATE": the last Business Day of each calendar month.
"CAPITAL EXPENDITURES": for any period, with respect to any Person, the
aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) which should be included as capital
expenditures under GAAP on a consolidated cash flow statement of such Person and
its Subsidiaries; PROVIDED, that the Capital Expenditures of the Borrower for
each of the fiscal quarters ended March 31, 1999, June 30, 1999 and
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September 30, 1999 shall be deemed to include, on a PRO FORMA basis, the Capital
Expenditures made during such fiscal quarters by the ▇▇▇▇ Companies and their
Subsidiaries and the Capital Expenditures attributable during such fiscal
quarters to ▇▇▇▇▇▇▇▇▇ TPO; PROVIDED FURTHER, that the Capital Expenditures of
the ▇▇▇▇ Companies and their Subsidiaries for each of the fiscal quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999 shall be deemed to be
$275,000 per quarter and the Capital Expenditures attributable to ▇▇▇▇▇▇▇▇▇ TPO
for each of the fiscal quarters ended March 31, 1999, June 30, 1999 and
September 30, 1999 shall be deemed to be $450,000 per quarter.
"CAPITAL LEASE OBLIGATIONS": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"CAPITAL STOCK": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
"CASH EQUIVALENTS": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency or instrumentality thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time
deposits or overnight bank deposits having maturities of six months or less from
the date of acquisition issued by any Lender or by any commercial bank organized
under the laws of the United States of America or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial paper
of an issuer rated at least A-2 by Standard & Poor's Ratings Services ("S&P") or
P-2 by ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S"), or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such
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state, commonwealth or territory or by any foreign government, the securities of
which state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A by
Moody's; (f) securities with maturities of six months or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this definition; or
(g) shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
"CHANGE OF CONTROL": the occurrence of any of the following events: (i)
the GSCP Group shall in the aggregate beneficially, directly or indirectly, own
shares of Capital Stock having less than 51% of the total voting power of all of
the outstanding Capital Stock of the Borrower, (ii) one or more members of the
GSCP Group shall not have the power (whether or not exercised), by virtue of
directly or indirectly owning shares of the Capital Stock of the Borrower or by
contract or otherwise, to elect or cause the election of a majority of the board
of directors of the Borrower or (iii) a "Change of Control" as defined in the
Senior Subordinated Note Indenture, the Exchange Debenture Indenture, the Senior
Preferred Stock, the Preference Stock Purchase Agreement or the Existing
Indenture shall have occurred at a time when any principal amount of
Indebtedness is outstanding under such Indenture.
"CLOSING DATE": the date on which the conditions precedent set forth in
Section 5.1 of this Agreement shall have been satisfied, which date is October
19, 1999.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all Property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"COMMITMENT": as to any Lender, the sum of the Term Loan Commitment and
the Revolving Credit Commitment of such Lender.
"COMMITMENT FEE RATE": 1/2 of 1% per annum.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Sections 414(m) and (o) of the Code.
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"COMPLIANCE CERTIFICATE": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit C.
"CONSOLIDATED CURRENT ASSETS": at any date, all amounts (other than
cash and Cash Equivalents) which would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date.
"CONSOLIDATED CURRENT LIABILITIES": at any date, all amounts which
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and (b) without
duplication of clause (a) above, all Indebtedness consisting of Revolving Credit
Loans or Swing Line Loans to the extent otherwise included therein.
"CONSOLIDATED EBITDA": for any period, Consolidated Net Income for such
period PLUS, without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) interest expense, amortization or write-off of debt discount
and debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, losses on sales or write-downs of assets outside of the ordinary course
of business), (f) any other non-cash expenses and charges, (g) all cash expenses
directly related to the Acquisition and the ▇▇▇▇▇▇▇▇▇ TPO Acquisition, (h)
non-cash provisions and reserves for discontinued operations, (i) any loss
accounted for by the equity method of accounting and (j) cash payments made to
GSCP or SG Capital Partners, L.L.C. permitted by Section 7.10 for the rendering
of management, consulting or financial advisory services and MINUS, to the
extent included in the statement of such Consolidated Net Income for such
period, the sum of (a) interest income, (b) any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise includable as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business)
and (c) any other non-cash income, all as determined on a consolidated basis and
minus, to the extent not reflected as a charge in the statement of such
Consolidated Net Income for such period, the aggregate amount of dividends paid
by the Borrower to Holdings during such period as permitted by Section 7.6(d) to
enable Holdings to pay expenses; PROVIDED, that the Consolidated EBITDA of the
Borrower for each of the fiscal quarters ended March 31, 1999, June 30, 1999 and
September 30, 1999 shall be deemed to include, on a PRO FORMA basis, the
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consolidated EBITDA of the ▇▇▇▇ Companies and their Subsidiairies for such
fiscal quarters and the consolidated EBITDA attributable during such fiscal
quarters to ▇▇▇▇▇▇▇▇▇ TPO; PROVIDED FURTHER, that the consolidated EBITDA of the
▇▇▇▇ Companies and their Subsidiaries for each of the fiscal quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999 shall be deemed to be
$2,235,000 per quarter and the consolidated EBITDA attributable to ▇▇▇▇▇▇▇▇▇ TPO
for each of the fiscal quarters ended March 31, 1999, June 30, 1999 and
September 30, 1999 shall be deemed to be $875,000 per quarter.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO": for any period, the ratio
of (a) Consolidated EBITDA for such period less the aggregate amount actually
paid by the Borrower and its Subsidiaries in cash during such period on account
of Capital Expenditures (other than Capital Expenditures not to exceed
$4,500,000 in the aggregate subsequent to the Closing Date relating to the
reorganization of the Borrower's global textile production facilities) to (b)
Consolidated Fixed Charges for such period.
"CONSOLIDATED FIXED CHARGES": for any period, the sum (without
duplication) of (i) Consolidated Interest Expense for such period, (ii) the
aggregate amount paid, or required to be paid, by the Borrower or any of its
Subsidiaries in respect of income taxes during such period (net of tax credits
and benefits, including tax benefits from net operating losses) on a
consolidated basis in respect of such period and (iii) scheduled payments made
during such period on account of principal of Indebtedness of the Borrower or
any of its Subsidiaries (including scheduled principal payments in respect of
the Term Loans); PROVIDED, that for any period of four consecutive fiscal
quarters of the Borrower commencing prior to the Closing Date, income taxes and
scheduled payments made on account of principal of Indebtedness shall be
calculated on a PRO FORMA basis as if the Pro Forma Events had occurred on the
first day of such period.
"CONSOLIDATED INTEREST COVERAGE RATIO": for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"CONSOLIDATED INTEREST EXPENSE": for any period, the excess of (a)
total cash interest expense (including that attributable to Capital Lease
Obligations) of the Borrower and its Subsidiaries for such period with respect
to all outstanding Indebtedness of the Borrower and its Subsidiaries (including,
without limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing and net
costs under Interest Rate Protection Agreements to the extent such commissions,
discounts, fees, charges and net costs are allocable to such period in
accordance with GAAP, but excluding all amortization and write-off of financing
costs)
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over (b) interest income of the Borrower and its consolidated Subsidiaries for
such period; PROVIDED, that Consolidated Interest Expense for any period of four
consecutive fiscal quarters of the Borrower commencing prior to the Closing Date
shall be calculated, on a PRO FORMA basis, as if the Loans incurred pursuant to
the Pro Forma Events had been incurred on the first day of such period and had
been outstanding throughout such period and the interest rate applicable to such
Loans during fiscal quarters ending prior to the Closing Date had been equal to
the blended average interest rate applicable to such Loans under the Credit
Agreement during such period.
"CONSOLIDATED LEVERAGE RATIO": as at the last day of any period of four
consecutive fiscal quarters, the ratio of (a) Consolidated Total Debt on such
day to (b) Consolidated EBITDA for such period; PROVIDED that for purposes of
calculating Consolidated EBITDA of the Borrower and its Subsidiaries for any
period, the Consolidated EBITDA of any Person acquired by the Borrower or its
Subsidiaries during such period shall be included on a PRO FORMA basis for such
period (assuming the consummation of such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the first day
of such period) if the consolidated balance sheet of such acquired Person and
its consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and the related consolidated statements of income and
stockholders' equity and of cash flows for the period in respect of which
Consolidated EBITDA is to be calculated (i) have been previously provided to the
Administrative Agent and the Lenders and (ii) either (A) have been reported on
without a qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or (B) have been
found reasonably acceptable by the Administrative Agent.
"CONSOLIDATED NET INCOME": for any period, the consolidated net income
(or loss) of the Borrower and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP; PROVIDED that there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower
or any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
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"CONSOLIDATED TOTAL DEBT": at any date, the aggregate principal amount
of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL": at any date, the excess of Consolidated
Current Assets on such date over Consolidated Current Liabilities on such date.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"DAY INTERNATIONAL, INC.": Day International, Inc., a Delaware
corporation.
"DEFAULT": any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"DEFAULTED ACCOUNT": any Account of the Borrower or its Subsidiaries
which has been or should have been charged-off as not collectable in conformity
with the accounting policies of the Borrower and its Subsidiaries as in effect
from time to time.
"DEPARTING LENDER": as defined in Section 5.1(b)(iii).
"DISPOSITION": with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof; and
the terms "DISPOSE" and "DISPOSED OF" shall have correlative meanings.
"DOLLAR EQUIVALENT": with respect to an amount of any Alternative
Currency on any date, the amount of Dollars that may are required to purchase
such amount of such Alternative Currency at the Spot Exchange Rate with respect
to such Alternative Currency on such date.
"DOLLARS" and "$": dollars in lawful currency of the United States of
America.
"DOMESTIC SUBSIDIARY": any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States of America.
"ECF PERCENTAGE": 75%; PROVIDED, that the ECF Percentage shall be
reduced to 50% if the Consolidated Leverage Ratio as of the last day of such
fiscal year is not greater than 3.0 to 1.0.
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"ELIGIBLE ACCOUNTS RECEIVABLE": at any time, an amount equal to the
aggregate outstanding balance of all Accounts of the Borrower and its Domestic
Subsidiaries payable in the United States of America, as set forth in the aging
reports of billed Accounts for the Borrower and its Domestic Subsidiaries as of
such time, PROVIDED that, unless otherwise approved in writing by the
Administrative Agent, no amount owing in respect of any Account of the Borrower
or any of its Domestic Subsidiaries shall be deemed to be included in any
calculation of Eligible Accounts Receivable if:
(a) (i) such Account is not a bona fide, valid and legally
enforceable obligation of the Obligor thereon arising from the actual
sale and delivery of goods to or rendition to and acceptance of
services by such Obligor, (ii) the goods giving rise to such Account
have not been shipped and delivered to the Obligor thereon or the
services giving rise to such Account have not been performed, (iii)
such Account arises from a progress billing or percentage of completion
invoice, but only to the extent the amount billed exceeds the value of
the goods sold and delivered or the services performed with respect
thereto, or (iv) such Account otherwise does not represent a final sale
or transfer of title to such Obligor;
(b) such Account has been adjusted to reflect the return or
rejection of, or any loss of or damage to, any of the Inventory giving
rise to such Account; PROVIDED that amounts owing in respect of such
Account shall only be excluded to the extent of such adjustment;
(c) such Account includes any material financing charges or
late or other fees; PROVIDED that amounts owing in respect of such
Account shall only be excluded to the extent of such charges or fees;
(d) such Account remains unpaid for more than 90 days after
the date set forth for payment in the invoice originally issued
therefor;
(e) greater than 50% of the aggregate amount owing in respect
of all Accounts by the Obligor thereon to the Borrower and its
Subsidiaries remain unpaid more than 90 days after the date set forth
for payment in the respective invoices originally issued therefor;
(f) such Account is a Defaulted Account, unless the
obligations of the Obligor under such Account are supported by a letter
of credit issued by a bank or other credit insurance reasonably
acceptable to the Administrative Agent;
(g) a proceeding under bankruptcy or similar laws has occurred
and is continuing with respect to the Obligor thereon unless the
payment of Accounts from
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such Obligor is secured in a manner reasonably satisfactory to the
Administrative Agent or, if the Account arises subsequent to a decree
or order for relief with respect to such Obligor under the federal
bankruptcy laws, as now or hereinafter in effect, the timely payment
and collection of such Account will not be impaired, as determined by
the Administrative Agent in its reasonable judgment;
(h) it is an Account which pursuant to any agreement between
the Borrower or any of its Domestic Subsidiaries, on the one hand, and
the Obligor thereon, on the other hand, may be set off or charged
against (i) any adverse security deposit or other similar deposit made
by or for the benefit of such Obligor or (ii) any trade payable, rebate
obligation or other similar liability owing to such Obligor; PROVIDED
that amounts owing in respect of such Account shall only be excluded to
the extent of such set-off or charge against such adverse security
deposit, payable, rebate obligation or other similar liability;
(i) such Account is the result of a reinvoice of a disputed
Account or Defaulted Account;
(j) such Account arises from (i) the sale to the Obligor on a
▇▇▇▇-and-hold, guaranteed sale, sale-or-return, sale on approval,
consignment, sample or trial basis, (ii) a sale subject to any
retainages or holdbacks of any type or (iii) any other sale to the
Obligor made pursuant to any other written agreement providing for
repurchase or return; PROVIDED that no amount owing in respect of such
Account shall be excluded pursuant to this clause solely as a result of
customary quality warranties or the general right to return goods
provided by the Borrower or any of its Domestic Subsidiaries;
(k) such Account does not comply in all material respects with
all applicable legal requirements;
(l) such Account is not owned solely by the Borrower or any of
its Domestic Subsidiaries free and clear of all Liens or other rights
or claims of any other Person (except in favor of the Administrative
Agent); or
(m) the Administrative Agent does not have a valid and
perfected first priority security interest for the benefit of the
Lenders in such Account and in any letter of credit, credit insurance
or guarantee, the credit support provided by which would permit such
Account to be an Eligible Account Receivable in accordance with the
foregoing provisions of this definition (except for liens arising by
operation of law, appropriate reserves for which have been reasonably
established for borrowing base purposes by the Borrower or a Domestic
Subsidiary) or such Account does not
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conform in all material respects to the representations and warranties
contained in this Agreement or any of the Security Documents.
"ELIGIBLE INVENTORY": at any time, an amount equal to the aggregate
value of all Inventory of the Borrower and its Domestic Subsidiaries. In
determining the amount to be so included, such Inventory shall be valued at the
standard cost maintained on a basis consistent with the Borrower's or such
Domestic Subsidiary's current and historical accounting practice LESS reserves
taken and adjustments made, if any, (i) on account of physical inventory
adjustments, for standard cost variances and shrinkage accruals, (ii) for
obsolete or slow moving goods as determined by Inventory remaining unsold or not
placed into production for a period of 52 weeks, (iii) for goods returned or
rejected by the Borrower's or such Domestic Subsidiary's customers as damaged or
defective, obsolete or otherwise nonsalable, (iv) for goods in transit to third
parties that are not excluded pursuant to clause (a), (c), (c) or (d) below, (v)
for Liens referred to in clause (c)(i) below and (vi) for Liens referred to in
clause (c)(ii) below as established by the Administrative Agent in its sole
discretion. Unless otherwise approved in writing by the Administrative Agent, no
amount with respect to any Inventory shall be deemed to be included in any
calculation of Eligible Inventory if:
(a) the Inventory is not owned solely by the Borrower or such
Domestic Subsidiary or is leased or on consignment or the Borrower or
such Domestic Subsidiary does not have good and valid title thereto;
(b) the Inventory is not located at property that is owned or
leased by the Borrower or such Domestic Subsidiary in the United States
and that is set forth on Schedule 4 to the Guarantee and Collateral
Agreement;
(c) the Inventory is not subject to a perfected Lien in favor
of the Administrative Agent for the benefit of the Lenders prior to all
other Liens except (i) for Liens in favor of landlords with respect to
which either (x) a Landlord Lien Waiver has been obtained or (y) a Rent
Adjustment has been subtracted from the calculation of Eligible
Inventory, PROVIDED that if the Borrower or the respective Domestic
Subsidiary fails to make all rental payments with respect to the
property at which such Inventory is located for a period of three
consecutive months, such Inventory shall not be included in the
calculation of Eligible Inventory and (ii) with respect to Eligible
Inventory located at or in transit to sites described in clause (b)
above, for Liens for normal and customary warehousing and
transportation charges (appropriate reserves for which have been
reasonably established for Borrowing Base purposes by the Borrower or
such Domestic Subsidiary); or
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(d) the Inventory does not conform in all material respects to
the representations and warranties contained in this Agreement or any
of the Security Documents.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, legally binding requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of the environment, as
now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"EURODOLLAR BASE RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate service as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on Page 3750 of the Telerate service (or otherwise on such service),
the "EURODOLLAR BASE RATE" for purposes of this definition shall be determined
by reference to such other comparable publicly available service for displaying
eurodollar rates as may be reasonably selected by the Administrative Agent or,
in the absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M., New York
City time, two Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
"EURODOLLAR LOANS": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
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"EURODOLLAR RATE": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
EURODOLLAR BASE RATE
1.00 - Eurocurrency Reserve Requirements
"EURODOLLAR TRANCHE": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"EVENT OF DEFAULT": any of the events specified in Section 8, PROVIDED
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"EXCESS CASH FLOW": for any period, the excess, if any, of (a) the sum,
without duplication, of (i) Consolidated Net Income for such period (excluding,
for purposes of this definition, any contribution to such Consolidated Net
Income resulting from a Recovery Event), (ii) an amount equal to the amount of
all non-cash charges (including depreciation and amortization) deducted in
arriving at such Consolidated Net Income, (iii) decreases in Consolidated
Working Capital for such period, (iv) an amount equal to the aggregate net
non-cash loss on the Disposition of Property by the Borrower and its
Subsidiaries during such period (other than sales of inventory in the ordinary
course of business), to the extent deducted in arriving at such Consolidated Net
Income and (v) the net increase during such period (if any) in deferred tax
accounts of the Borrower OVER (b) the sum, without duplication, of (i) an amount
equal to the amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by the Borrower
and its Subsidiaries in cash during such period on account of Capital
Expenditures (excluding the principal amount of Indebtedness incurred in
connection with such expenditures pursuant to 7.2(c) and (d) and any such
expenditures financed with the proceeds of any Recovery Event), (iii) the
aggregate amount of all prepayments of Revolving Credit Loans and Swing Line
Loans during such period to the extent accompanying permanent optional
reductions of the Revolving Credit Commitments and all optional prepayments of
the Term Loans during such period, (iv) the aggregate amount of all regularly
scheduled principal payments, optional prepayments and mandatory prepayments
pursuant to Section 2.12(c) (or any comparable provision of any other Funded
Debt) of Funded Debt (including, without limitation, the Term Loans) of the
Borrower and its Subsidiaries made during such period (other than in respect of
any revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (v) increases in Consolidated Working
Capital for such period, (vi) an amount equal to the aggregate net non-cash gain
on the Disposition of
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Property by the Borrower and its Subsidiaries during such period (other than
sales of inventory in the ordinary course of business), to the extent included
in arriving at such Consolidated Net Income, (vii) any investment made in
accordance with Sections 7.8(h), (n) and (o) hereof, and (viii) the net decrease
during such period (if any) in deferred tax accounts of the Borrower.
"EXCESS CASH FLOW APPLICATION DATE": as defined in Section 2.12(c).
"EXCHANGE DEBENTURE INDENTURE": the Indenture dated as of March 18,
1998 entered into by the Borrower and Day International, Inc. with The Bank of
New York, as trustee, in connection with the issuance of the Subordinated
Exchange Debentures, as the same may be amended, supplemented or modified from
time to time in accordance with Section 7.9.
"EXCLUDED FOREIGN ACCOUNT": an Account owed to a Foreign Subsidiary.
"EXCLUDED FOREIGN SUBSIDIARY": any Foreign Subsidiary with respect to
which, pursuant to Section 6.9(d), either (1) no share of Capital Stock or (2)
shares of Capital Stock having no more than 65% of the aggregate voting power of
all Capital Stock, is required to be pledged to secure the Obligations.
"EXISTING CREDIT AGREEMENT": as defined in the recitals hereto.
"EXISTING INDENTURE": the Indenture, dated as of June 6, 1995, among
the Borrower, as issuer, Day International, Inc., as guarantor, and American
Bank National Association, as trustee, as the same may be amended from time to
time in accordance with Section 7.9.
"EXISTING LENDERS": as defined in the recitals hereto.
"EXISTING LOANS": as defined in the recitals hereto.
"EXISTING MORTGAGES: as defined in the definition of "Mortgages."
"EXISTING NOTES": the senior notes due 2005 of the Borrower issued
pursuant to the Existing Indenture.
"EXISTING POLICIES: as defined in Section 5.1(o).
"EXISTING TERM LOAN LENDER": each Existing Lender which held term loans
under the Existing Credit Agreement.
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"FACILITY": each of (a) the Term Loan Commitments and the Term Loans
made thereunder (the "TERM LOAN FACILITY"), and (b) the Revolving Credit
Commitments and the extensions of credit made thereunder (the "REVOLVING CREDIT
FACILITY").
"FEDERAL FUNDS EFFECTIVE RATE": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Reference Lender
from three federal funds brokers of recognized standing selected by it.
"FOREIGN SUBSIDIARY": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"FUNDED DEBT": as to any Person, all Indebtedness of such Person that
matures more than one year from the date of its creation or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date, including, without
limitation, all current maturities and current sinking fund payments in respect
of such Indebtedness whether or not required to be paid within one year from the
date of its creation and, in the case of the Borrower, all Indebtedness in
respect of the Loans.
"FUNDING OFFICE": the office of the Administrative Agent set forth in
Section 10.2 or as specified from time to time by the Administrative Agent as
its funding office by notice to the Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time, except that for purposes of Section
7.1, GAAP shall be determined on the basis of such principles in effect on the
date hereof and consistent with those used in the preparation of the most recent
audited financial statements delivered pursuant to Section 4.1(b).
"GOVERNMENTAL AUTHORITY": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
(including, without limitation, the National Association of Insurance
Commissioners).
"GRAPH TECH": as defined in the recitals hereto.
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"GSCP ACQUISITION EQUITY INVESTMENT": as defined in Section 5.1(c).
"GSCP GROUP": Greenwich Street Capital Partners, L.P., Greenwich Street
Capital Offshore Fund, Ltd., ▇▇▇▇▇ Private Equity Partners, L.P., Quantum
Industrial Partners LLC, SFM Domestic Investments LLC, The Travelers Insurance
Company, The Travelers Life and Annuity Company, TRV Employees Fund, Inc., ▇▇▇▇▇
▇▇▇▇▇▇ Holdings Inc., SG Capital Partners LLC and their respective Affiliates;
any other investment fund or vehicle managed or sponsored by Greenwich Street
Capital Partners, Inc., The Travelers Insurance Company, Quantum Industrial
Partners LLC, SFM Domestic Investments LLC, The Travelers Life and Annuity
Company, ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc., SG Capital Partners LLC or any of their
respective Affiliates.
"GUARANTEE AND COLLATERAL AGREEMENT": the Amended and Restated
Guarantee and Collateral Agreement to be executed and delivered by the Borrower
and each Subsidiary Guarantor, substantially in the form of Exhibit D, as the
same may be amended, supplemented or otherwise modified from time to time.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING PERSON"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counter indemnity
or similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "PRIMARY OBLIGATIONS")
of any other third Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, including, without limitation, any such obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any Property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; PROVIDED, HOWEVER, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the
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amount of such Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"HOLDINGS": GSD Acquisition Corp., a Delaware corporation, including
its successors and assigns.
"INDEBTEDNESS": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than trade
liabilities incurred in the ordinary course of such Person's business or any
obligation of any Person under Section 3.3 of the Original Acquisition
Agreement), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
Property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such Property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptance, letter of credit or similar facilities, (g) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (f) above; (h) all obligations of the kind
referred to in clauses (a) through (g) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on Property (including, without limitation, accounts and contract
rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation, (i) for the purposes of Section 8(e)
only, all obligations of such Person in respect of Interest Rate Protection
Agreements and Permitted Hedging Arrangements and (j) for purposes of Section
7.2 only, the liquidation value of any mandatorily redeemable preferred Capital
Stock of such Person or its Subsidiaries held by any Person other than such
Person and its Wholly Owned Subsidiaries.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": as defined in Section 4.9.
"INTEREST PAYMENT DATE": (a) as to any Base Rate Loan, the last day of
each March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan having
an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan
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having an Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period and (d) as to any Loan (other than any
Revolving Credit Loan that is a Base Rate Loan and any Swing Line Loan), the
date of any repayment or prepayment made in respect thereof.
"INTEREST PERIOD": as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then current Interest
Period with respect thereto; PROVIDED that, all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Revolving Credit Termination Date or beyond the date final payment
is due on the Term Loans, shall end on the Revolving Credit Termination
Date or such due date, as applicable;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a scheduled payment or prepayment of any Eurodollar Loan during
an Interest Period for such Loan.
"INTEREST RATE PROTECTION AGREEMENT": any interest rate protection
agreement, interest rate futures contract, interest rate option, interest rate
cap or other interest rate hedge arrangement, to or under which the Borrower or
any of its Subsidiaries is a party or a beneficiary on the date hereof or
becomes a party or a beneficiary after the date hereof.
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"INVENTORY": as defined in the Uniform Commercial Code as in effect in
the State of New York from time to time.
"ISSUING LENDER": Societe Generale, in its capacity as issuer of any
Letter of Credit.
"JVTEX": as defined in the recitals hereto.
"LANDLORD LIEN WAIVER": a written agreement in substantially the form
of Exhibit E or otherwise reasonably acceptable to the Administrative Agent.
"L/C COMMITMENT": $10,000,000.
"L/C FEE PAYMENT DATE": the last day of each March, June, September and
December and the last day of the Revolving Credit Commitment Period.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a) the
sum of (i) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit denominated in Dollars plus (ii) the then
Alternative Currency L/C Exposure and (b) the aggregate amount of drawings under
Letters of Credit which have not then been reimbursed pursuant to Section 3.5.
"L/C PARTICIPANTS": the collective reference to all the Revolving
Credit Lenders other than the Issuing Lender.
"LETTERS OF CREDIT": as defined in Section 3.1(a).
"LIEN": any mortgage, pledge, hypothecation, assignment, security
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Capital Lease Obligation having substantially the same economic effect as any of
the foregoing).
"LOAN": any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS": this Agreement, the Security Documents and the Notes.
"LOAN PARTIES": the Borrower and each Subsidiary of the Borrower which
is a party to a Loan Document.
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"MAJORITY FACILITY LENDERS": with respect to either Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Credit
Facility, prior to any termination of the Revolving Credit Commitments, the
holders of more than 50% of the Total Revolving Credit Commitments).
"MAJORITY REVOLVING CREDIT FACILITY LENDERS": the Majority Facility
Lenders in respect of the Revolving Credit Facility.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
Acquisition, (b) the business, assets, property, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or
(c) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Agents or the Lenders hereunder or
thereunder.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any applicable Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"MORTGAGE AMENDMENTS": as defined in Section 5.1(o).
"MORTGAGED PROPERTIES": the real properties listed on Schedule 1.1B, as
to which the Administrative Agent for the benefit of the Lenders shall be
granted a Lien pursuant to the Mortgages.
"MORTGAGES": each of the mortgages and deeds of trust to secure debt
delivered to the Administrative Agent pursuant to the Existing Credit Agreement,
as amended by the respective Mortgage Amendments (collectively, the "EXISTING
MORTGAGES"), and each other mortgage and deed of trust made by any Loan Party in
favor of, of for the benefit of, the Administrative Agent for the benefit of the
Lenders, substantially in the form of Exhibit F (with such changes thereto as
shall be advisable under the law of the jurisdiction in which such mortgage or
deed of trust is to be recorded), as the same may be amended, supplemented or
otherwise modified from time to time.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
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"NEW MORTGAGED PROPERTIES": the real properties listed on Schedule 1.1B
under the heading "New Mortgaged Properties", as to which the Administrative
Agent for the benefit of the Lenders shall be granted a Lien pursuant to the
Mortgages.
"NEW TERM LOAN LENDER": each Term Loan Lender which is not an Existing
Lender.
"NET CASH PROCEEDS": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of attorneys' fees, accountants' fees, brokerage fees,
consultants fees, investment banking fees, amounts required to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted hereunder on any
asset which is the subject of such Asset Sale or Recovery Event (other than any
Lien pursuant to a Security Document) and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and net of
appropriate amounts provided or to be provided as a reserve, in accordance with
GAAP, with respect to any liabilities associated with such Asset Sale and
retained by the Borrower or any such Subsidiary after such Asset Sale and other
appropriate amounts to be used by the Borrower or any of its Subsidiaries to
discharge or pay on a current basis any other liabilities associated with such
Asset Sale and (b) in connection with any issuance or sale of equity securities
or debt securities (other than any issuance or borrowing permitted under Section
7.2) or instruments or the incurrence of loans, the cash proceeds received from
such issuance or incurrence, net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith.
"NON-EXCLUDED TAXES": as defined in Section 2.20(a).
"NON-U.S. LENDER": as defined in Section 2.20(d).
"NOTES": the collective reference to any promissory note evidencing
Loans.
"OBLIGATIONS": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in
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such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of
Interest Rate Protection Agreements or Permitted Hedging Arrangements, any
affiliate of any Lender), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any other Loan Document,
the Letters of Credit, any Interest Rate Protection Agreement or Permitted
Hedging Arrangement entered into with any Lender or any affiliate of any Lender
or any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all fees,
charges and disbursements of counsel to the Administrative Agent or to any
Lender that are required to be paid by the Borrower pursuant hereto) or
otherwise.
"OBLIGOR": with respect to an Account, the purchaser of the goods or
services giving rise to such Account or any other Person obligated to make
payment in respect of such purchase of such goods or services.
"ORIGINAL ACQUISITION AGREEMENT": Purchase Agreement among Greenwich IV
LLC, GSD Acquisition Corp. and the former stockholders of the Borrower, dated as
of December 18, 1997, as amended.
"ORIGINAL CLOSING DATE": January 15, 1998.
"OTHER TAXES": any and all present or future stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this Agreement
or any other Loan Document.
"PARTICIPANT": as defined in Section 10.6(b).
"PATENT AND TRADEMARK SECURITY AGREEMENT": the Amended and Restated
Patent and Trademark Security Agreement to be executed and delivered by the
Borrower and its Subsidiaries, substantially in the form of Exhibit A, as the
same may be amended, supplemented or otherwise modified from time to time.
"PAYMENT OFFICE": the office of the Administrative Agent set forth in
Section 10.2 or as specified from time to time by the Administrative Agent as
its payment office by notice to the Borrower and the Lenders.
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"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"PERMITTED HEDGING ARRANGEMENT": as defined in Section 7.14.
"PERSON": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PREFERENCE STOCK": the 38,500 shares of 18% Convertible Cumulative
Preference Stock, par value $.01 per share, having an initial liquidation
preference of $1,000 per share and having the rights and preferences set forth
in the Certificate of Designation with respect thereto that are to be issued by
the Borrower on the Closing Date, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 7.9.
"PREFERENCE STOCK PURCHASE AGREEMENT": the Preference Stock Purchase
Agreement, dated as of the date hereof, among the Borrower, Quantum Industrial
Partners LDC, a Cayman Islands limited duration company, SFM Domestic Investors
LLC, a Delaware limited liability company, SGC Partners I LLC, Greenwich Street
Capital Partners, L.P., TRV Employees Fund, L.P., Greenwich Street Capital
Offshore Fund, Ltd., The Travelers Insurance Company, The Travelers Life and
Annuity Company and Unione Italiana (U.K.) Reinsurance Company Limited, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 7.9.
"PRICING GRID": the pricing grid attached hereto as Annex A.
"PRO FORMA BALANCE SHEET": as defined in Section 4.1(a).
"PRO FORMA EVENTS": the ▇▇▇▇▇▇▇▇▇ TPO Acquisition, the Acquisition, the
sale of the Preference Stock, the Loans to be made on the Closing Date and the
use of the proceeds thereof and the payment of fees and expenses in connection
with the foregoing
"PROJECTIONS": as defined in Section 6.2(c).
"PROPERTIES": as defined in Section 4.17.
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"PROPERTY": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
"RECOVERY EVENT": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower or any of its Subsidiaries.
"REFERENCE LENDER": the Administrative Agent.
"REFUNDED SWING LINE LOANS": as defined in Section 2.7.
"REFUNDING DATE": as defined in Section 2.7.
"REGISTER": as defined in Section 10.6(d).
"REGULATION U": Regulation U of the Board as in effect from time to
time.
"REIMBURSEMENT OBLIGATION": the obligation of the Borrower to reimburse
the Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit.
"REINVESTMENT AMOUNT": with respect to any Asset Sale or Recovery
Event, that portion of the Net Cash Proceeds thereof as shall, according to a
certificate of a Responsible Officer of the Borrower delivered to the
Administrative Agent within 30 days of such Asset Sale, be reinvested in the
business of the Borrower and its Subsidiaries in a manner consistent with the
requirements of Section 7.15 and the other provisions hereof within one year of
the receipt of such Net Cash Proceeds or, if such reinvestment is in a project
designated by the board of directors of the Borrower as a project that will take
longer than one year to complete, within two years of the receipt of such Net
Cash Proceeds; PROVIDED that (i) if any such certificate of a Responsible
Officer is not delivered to the Administrative Agent on the date of such Asset
Sale or Recovery Event, any Net Cash Proceeds of such Asset Sale or Recovery
Event shall be immediately (x) deposited in a cash collateral account
established at Societe Generale to be held as collateral in favor of the
Administrative Agent for the benefit of the Lenders on terms reasonably
satisfactory to the Administrative Agent and shall remain on deposit in such
cash collateral account until such certificate of a Responsible Officer is
delivered to the Administrative Agent or (y) used to make a prepayment of the
Revolving Credit Loans in accordance with Section 2.12(b); PROVIDED that,
notwithstanding anything in this Agreement to the contrary, the Borrower may not
request any Loan or Letter of Credit under the Revolving Credit Commitments that
would reduce the aggregate amount of the Available Revolving Credit Commitments
to an amount that is less than the amount of
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any such prepayment until such certificate of a Responsible Officer is delivered
to the Administrative Agent and (ii) any Net Cash Proceeds not so reinvested
within one year or such later day, as applicable, shall be utilized at the end
of such period or to prepay the Term Loans and reduce the Revolving Credit
Commitments pursuant to Section 2.12(b).
"RENT ADJUSTMENT": with respect to any property leased by the Borrower
or any of its Domestic Subsidiaries where any Inventory is located which may
become subject to Liens in favor of the landlord thereof arising by operation of
law, an amount equal to six months' rent at such premises.
"REORGANIZATION": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under PBGC Reg. sec. 4043 or any successor regulation thereto.
"REQUIRED LENDERS": the holders of more than 50% of (a) until the
Closing Date, the Commitments and (b) thereafter, the sum of (i) the aggregate
unpaid principal amount of the Term Loans and (ii) the Total Revolving Credit
Commitments or, if the Revolving Credit Commitments have been terminated, the
Total Revolving Extensions of Credit.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
"RESPONSIBLE OFFICER": the chief executive officer, president or chief
financial officer of the Borrower, but in any event, with respect to financial
matters, the chief financial officer of the Borrower.
"RESTRICTED PAYMENTS": as defined in Section 7.6.
"REVOLVING CREDIT COMMITMENT": as to any Lender, the obligation of such
Lender, if any, to make Revolving Credit Loans and make or participate in Swing
Line Loans and Letters of Credit, in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule 1.1A, as the same may be
changed from time to time pursuant to the terms hereof. The original amount of
the Total Revolving Credit Commitments is $20,000,000.
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"REVOLVING CREDIT COMMITMENT PERIOD": the period from and including the
Closing Date to the Revolving Credit Termination Date.
"REVOLVING CREDIT LENDER": each Lender which has a Revolving Credit
Commitment or which is the holder of Revolving Credit Loans.
"REVOLVING CREDIT LOANS": as defined in Section 2.4.
"REVOLVING CREDIT PERCENTAGE": as to any Revolving Credit Lender at any
time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the Total Revolving Credit Commitments (or, at any time after the
Revolving Credit Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender's Revolving Credit Loans
then outstanding constitutes of the aggregate principal amount of the Revolving
Credit Loans then outstanding).
"REVOLVING CREDIT TERMINATION DATE": March 31, 2005.
"REVOLVING EXTENSIONS OF CREDIT": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding, (b)
such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding and (c) such Lender's Revolving Credit Percentage of the aggregate
principal amount of Swing Line Loans then outstanding.
"ROTEC": Rotec Hulsensysteme GmbH, a German corporation.
"ROTEC ACQUISITION": the acquisition by the Borrower of all the shares
of the issued and outstanding Capital Stock of Rotec pursuant to the Rotec
Acquisition Agreement.
"ROTEC ACQUISITION AGREEMENT": the acquisition agreement to be entered
into by and between the Borrower or a Wholly Owned Subsidiary of the Borrower,
as purchaser, and the former shareholders of Rotec, as seller.
"SECURITY DOCUMENTS": the collective reference to the Guarantee and
Collateral Agreement, the Patent and Trademark Security Agreement, the Mortgages
and all other security documents hereafter delivered to the Administrative Agent
granting a Lien on any Property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.
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"SENIOR PREFERRED STOCK": the registered 12-1/4% senior exchangeable
preferred stock due 2010 issued by the Borrower on July 22, 1998 (in exchange
for the unregistered 12-1/4% senior exchangeable preferred stock due 2010 issued
by the Borrower on March 18, 1998), as the same may be amended, supplemented or
otherwise modified form time to time in accordance with Section 7.9.
"SENIOR SUBORDINATED NOTE INDENTURE": the Indenture dated as of March
18, 1998, entered into by the Borrower and Day International, Inc. with The Bank
of New York, as trustee, in connection with the issuance of the Senior
Subordinated Notes, together with all instruments and other agreements entered
into by the Borrower in connection therewith, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with Section
7.9.
"SENIOR SUBORDINATED NOTES": the registered 9-1/2% senior subordinated
notes due 2008 issued by the Borrower on July 22, 1998 (in exchange for the
unregistered 9-1/2% senior subordinated notes due 2008 issued by the Borrower on
March 18, 1998) pursuant to the Senior Subordinated Note Indenture.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"SOLVENT": when used with respect to any Person, means that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be no less
than the amount that will be required to pay the probable liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature. For purposes of this
definition, (i) "debt" means liability on a "claim", and (ii) "claim" means any
(x) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
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"SPONSORS": Greenwich Street Capital Partners, Inc. ("GSCP") and SG
Capital Partners, L.L.C.
"SPOT EXCHANGE RATE": on any day, with respect to any Alternative
Currency, the spot rate at which such Alternative Currency is offered for
Dollars on such day by the Administrative Agent in London or in the interbank
market where its foreign currency exchange operations in respect of such
Alternative Currency are then being conducted at approximately 11:00 A.M. (local
time). Notwithstanding the foregoing, if for any reason at the time of any
determination of the Spot Exchange Rate as described above, no such rate is
being quoted, the Administrative Agent may use any reasonable method, applied
consistently, it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"STOCKHOLDERS AGREEMENT": the Amended and Restated Stockholders
Agreement, dated as of October 19, 1999, among the Borrower and certain of its
stockholders.
"SUBORDINATED EXCHANGE DEBENTURES": any 12-1/2% subordinated notes due
2010 that may be issued by the Borrower in exchange for Senior Preferred Stock
pursuant to the Exchange Debenture Indenture.
"SUBSIDIARY": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower (including the ▇▇▇▇ Companies).
"SUBSIDIARY GUARANTOR": each Subsidiary of the Borrower other than any
Excluded Foreign Subsidiary.
"SWING LINE COMMITMENT": the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount
at any one time outstanding not to exceed $1,000,000.
"SWING LINE LENDER": Societe Generale, in its capacity as the lender of
Swing Line Loans.
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"SWING LINE LOANS": as defined in Section 2.6.
"SWING LINE PARTICIPATION AMOUNT": as defined in Section 2.7.
"TAX SHARING AGREEMENT": the Tax Sharing Agreement, dated January 15,
1998, among Holdings and the Borrower and any agreement or acknowledgment
entered into between the Borrower and its Subsidiaries pursuant to Section 9.1
of such Tax Sharing Agreement.
"TERM LOAN": as defined in Section 2.1.
"TERM LOAN COMMITMENT": as to any Lender, the obligation of such
Lender, if any, to make and/or continue a Term Loan to the Borrower hereunder in
a principal amount not to exceed the amount set forth under the heading "Term
Loan Commitment" opposite such Lender's name on Schedule 1.1A. The original
aggregate amount of the Term Loan Commitments is $70,000,000.
"TERM LOAN LENDER": each Lender which has a Term Loan Commitment or
which is the holder of a Term Loan.
"TERM LOAN PERCENTAGE": as to Term Loan Lender at any time, the
percentage which such Lender's Term Loan Commitment then constitutes of the
aggregate Term Loan Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender's Term Loans then
outstanding constitutes of the aggregate principal amount of the Term Loans then
outstanding).
"TITLE INSURANCE COMPANY": as defined in Section 5.1(n).
"TOTAL REVOLVING CREDIT COMMITMENTS": at any time, the aggregate amount
of the Revolving Credit Commitments at such time.
"TOTAL REVOLVING EXTENSIONS OF CREDIT": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit Lenders at
such time.
"TRANSFEREE": as defined in Section 10.15.
"TYPE": as to any Loan, its nature as a Base Rate Loan or a Eurodollar
Loan.
"▇▇▇▇ AEGIS": as defined in the recitals hereto.
"VARNCO": as defined in the recitals hereto.
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"▇▇▇▇ COMPANIES": as defined in the recitals hereto.
"▇▇▇▇ HOLDINGS": as defined in the recitals hereto.
"▇▇▇▇ PRODUCTS CO.": as defined in the recitals hereto.
"WHOLLY OWNED SUBSIDIARY": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares or other
interests required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"WHOLLY OWNED SUBSIDIARY GUARANTOR": any Subsidiary Guarantor that is a
Wholly Owned Subsidiary of the Borrower.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate
or other document made or delivered pursuant hereto or thereto, accounting terms
relating to the Borrower and its Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Section 2. AMOUNT AND TERMS OF COMMITMENTS.
2.1 TERM LOAN COMMITMENTS. (a) Subject to the terms and conditions
hereof, each Existing Term Loan Lender severally agrees to make a term loan (a
"TERM LOAN"), including through the amendment, restatement and continuation of
its Term Loan outstanding under the Existing Credit Agreement, to the Borrower
on the Closing Date in an amount not to exceed the amount of the Term Loan
Commitment of such Existing
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Term Loan Lender. Subject to the terms and conditions hereof, each New Term Loan
Lender severally agrees to make a new Term Loan to the Borrower on the Closing
Date in an amount not to exceed the amount of the Term Loan Commitment of such
New Term Loan Lender. The Term Loans may from time to time be Eurodollar Loans
or Base Rate Loans, or a combination thereof, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.
2.2 PROCEDURE FOR TERM LOAN BORROWING. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Term Loan Lenders
make and/or continue the Term Loans on the Closing Date. Unless the Lenders
otherwise agree, the Term Loans made and continued on the Closing Date shall
initially be Base Rate Loans. Upon receipt of such notice the Administrative
Agent shall promptly notify each Term Loan Lender thereof. Not later than 10:00
A.M., New York City time, on the Closing Date each Term Loan Lender shall make
available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Term Loan or Term Loans to be made by
such Lender. The Administrative Agent shall make available to the Borrower the
aggregate of the amounts made available to the Administrative Agent by the Term
Loan Lenders in immediately available funds.
2.3 REPAYMENT OF TERM LOANS. The Term Loan of each Lender shall mature
in 21 consecutive quarterly installments, commencing on March 31, 2000, each of
which shall be in an amount equal to such Lender's Term Loan Percentage
multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
1-4 $1,875,000
5-8 $2,500,000
9-20 $3,750,000
21 $7,500,000
2.4 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("REVOLVING CREDIT LOANS") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's Revolving
Credit Percentage of the sum of (i) the L/C Obligations then outstanding and
(ii) the aggregate principal amount of the Swing Line Loans then outstanding,
does not exceed the amount of such Lender's Revolving Credit Commitment. During
the Revolving Credit Commitment Period the Borrower
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may use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans, Base Rate Loans or a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.5 and 2.13, PROVIDED that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Revolving Credit
Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit Loans on
the Revolving Credit Termination Date.
(c) On the Closing Date, the Revolving Credit Loans outstanding under
the Existing Credit Agreement, as amended and restated hereby, shall be
continued hereunder subject to Section 5.1(b)(ii).
2.5 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may borrow
under the Revolving Credit Commitments during the Revolving Credit Commitment
Period on any Business Day, PROVIDED that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 1:00 P.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(b) one Business Day prior to the requested Borrowing Date, in the case of Base
Rate Loans), specifying (i) the amount and Type of Revolving Credit Loans to be
borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar
Loans, the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Period therefor. Unless the Lenders otherwise
agree, any Revolving Credit Loans made on the Closing Date shall initially be
Base Rate Loans. Each borrowing under the Revolving Credit Commitments shall be
in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole
multiple thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $2,500,000 or a whole multiple of $500,000 in excess thereof;
PROVIDED, that the Swing Line Lender may request, on behalf of the Borrower,
borrowings under the Revolving Credit Commitments which are Base Rate Loans in
other amounts pursuant to Section 2.7. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Credit
Lender thereof. Each Revolving Credit Lender will make the amount of its PRO
RATA share of each borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to 1:00 P.M. (or 10:00 A.M.,
in the case of the initial borrowing hereunder), New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent in like funds as received by the Administrative
Agent. Notwithstanding any of the
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foregoing, the Borrower shall not borrow more than $3,000,000 in Revolving
Credit Loans on the Closing Date.
2.6 SWING LINE COMMITMENT. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Credit Commitments from time to
time during the Revolving Credit Commitment Period by making swing line loans
("SWING LINE LOANS") to the Borrower; PROVIDED that (i) the aggregate principal
amount of Swing Line Loans outstanding at any time shall not exceed the Swing
Line Commitment then in effect (notwithstanding that the Swing Line Loans
outstanding at any time, when aggregated with the Swing Line Lender's other
outstanding Revolving Credit Loans hereunder, may exceed the Swing Line
Commitment then in effect) and (ii) the Borrower shall not request, and the
Swing Line Lender shall not make, any Swing Line Loan if, after giving effect to
the making of such Swing Line Loan, the aggregate amount of the Available
Revolving Credit Commitments would be less than zero. During the Revolving
Credit Commitment Period, the Borrower may use the Swing Line Commitment by
borrowing, repaying and reborrowing, all in accordance with the terms and
conditions hereof. Swing Line Loans shall be Base Rate Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans on the
Revolving Credit Termination Date.
2.7 PROCEDURE FOR SWING LINE BORROWING; REFUNDING OF SWING LINE LOANS.
(a) Whenever the Borrower desires that the Swing Line Lender make Swing Line
Loans it shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Credit
Commitment Period). Each borrowing under the Swing Line Commitment shall be in
an amount equal to $100,000 or a whole multiple of $25,000 in excess thereof.
Not later than 2:00 P.M., New York City time, on the Borrowing Date specified in
a notice in respect of Swing Line Loans, the Swing Line Lender shall make
available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the amount of the Swing Line Loan to be
made by the Swing Line Lender. The Administrative Agent shall make the proceeds
of such Swing Line Loan available to the Borrower on such Borrowing Date in
immediately available funds.
(b) The Swing Line Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one Business
Day's notice given by the Swing
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Line Lender no later than 1:00 P.M., New York City time, request each Revolving
Credit Lender to make, and each Revolving Credit Lender hereby agrees to make, a
Revolving Credit Loan, in an amount equal to such Revolving Credit Lender's
Revolving Credit Percentage of the aggregate amount of the Swing Line Loans (the
"REFUNDED SWING LINE LOANS") outstanding on the date of such notice, to repay
the Swing Line Lender. Each Revolving Credit Lender shall make the amount of
such Revolving Credit Loan available to the Administrative Agent at the Funding
Office in immediately available funds, not later than 10:00 A.M., New York City
time, one Business Day after the date of such notice. The proceeds of such
Revolving Credit Loans shall be immediately made available by the Administrative
Agent to the Swing Line Lender for application by the Swing Line Lender to the
repayment of the Refunded Swing Line Loans. The Borrower irrevocably authorizes
the Swing Line Lender to charge the Borrower's accounts with the Administrative
Agent (up to the amount available in each such account) in order to immediately
pay the amount of such Refunded Swing Line Loans to the extent amounts received
from the Revolving Credit Lenders are not sufficient to repay in full such
Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have otherwise
been made pursuant to Section 2.7(b), one of the events described in Section
8(f) shall have occurred and be continuing with respect to the Borrower or if
for any other reason, as determined by the Swing Line Lender in its sole
discretion, Revolving Credit Loans may not be made as contemplated by Section
2.7(b), each Revolving Credit Lender shall, on the date such Revolving Credit
Loan was to have been made pursuant to the notice referred to in Section 2.7(b)
(the "REFUNDING DATE"), purchase for cash an undivided participating interest in
the then outstanding Swing Line Loans by paying to the Swing Line Lender an
amount (the "SWING LINE PARTICIPATION AMOUNT") equal to (i) such Revolving
Credit Lender's Revolving Credit Percentage TIMES (ii) the sum of the aggregate
principal amount of Swing Line Loans then outstanding which were to have been
repaid with such Revolving Credit Loans plus all then accrued and unpaid
interest thereon.
(d) Whenever, at any time after the Swing Line Lender has received from
any Revolving Credit Lender such Lender's Swing Line Participation Amount, the
Swing Line Lender receives any payment on account of the Swing Line Loans, the
Swing Line Lender will distribute to such Lender its Swing Line Participation
Amount (appropriately adjusted to reflect such Lender's PRO RATA portion of such
payment if such payment is not sufficient to pay the principal of and interest
on all Swing Line Loans then due); PROVIDED, HOWEVER, that in the event that
such payment received by the Swing Line Lender is required to be returned, such
Revolving Credit Lender will return to the Swing Line Lender any portion thereof
previously distributed to it by the Swing Line Lender.
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(e) Each Revolving Credit Lender's obligation to make the Loans
referred to in Section 2.7(b) and to purchase participating interests pursuant
to Section 2.7(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or the Borrower may have against the Swing Line Lender, the Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other
Revolving Credit Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
2.8 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Revolving Credit Lender or Term Loan Lender, as the case may be,
(i) the then unpaid principal amount of each Revolving Credit Loan of such
Revolving Credit Lender on the Revolving Credit Termination Date (or such
earlier date on which the Loans become due and payable pursuant to Section 8),
(ii) the then unpaid principal amount of each Swing Line Loan of such Swing Line
Lender on the Revolving Credit Termination Date (or such earlier date on which
the Loans become due and payable pursuant to Section 8) and (iii) the principal
amount of each Term Loan of such Term Loan Lender in installments according to
the amortization schedule set forth in Section 2.3 (or on such earlier date on
which the Loans become due and payable pursuant to Section 8). The Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 2.15.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall maintain
the Register pursuant to Section 10.6(d), and a subaccount therein for each
Lender, in which shall be recorded (i) the amount of each Loan made hereunder
and any Note evidencing such Loan, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
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(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing any Term Loans, Revolving Credit
Loans or Swing Line Loans, as the case may be, of such Lender, substantially in
the forms of Exhibit G-1, G-2 or G-3, respectively, with appropriate insertions
as to date and principal amount.
2.9 COMMITMENT FEES, ETC. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent the fees in
the amounts and on the dates from time to time agreed to in writing by the
Borrower and the Administrative Agent.
2.10 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments; PROVIDED
that no such termination or reduction of Revolving Credit Commitments shall be
permitted if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans and Swing Line Loans made on the effective date thereof,
the Total Revolving Extensions of Credit would exceed the Total Revolving Credit
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a
whole multiple of $500,000 in excess thereof, and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.11 OPTIONAL PREPAYMENTS. The Borrower may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent at least three Business
Days prior thereto in
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the case of Eurodollar Loans and prior to 1:00 P.M., New York City time, on the
day thereof in the case of Base Rate Loans, which notice shall specify the date
and amount of prepayment and whether the prepayment is of Eurodollar Loans or
Base Rate Loans; PROVIDED, that if a Eurodollar Loan is prepaid on any day other
than the last day of the Interest Period applicable thereto, the Borrower shall
also pay any amounts owing pursuant to Section 2.21. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of Revolving Credit Loans which are Base Rate Loans and Swing Line Loans)
accrued interest to such date on the amount prepaid. Partial prepayments of Term
Loans and Revolving Credit Loans shall be in an aggregate principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Partial prepayments
of Swing Line Loans shall be in an aggregate principal amount of $100,000 or a
whole multiple thereof.
2.12 MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS. (a) Unless the
Majority Facility Lenders with respect to each Facility shall otherwise agree,
if any Capital Stock shall be issued by the Borrower (except for shares of
Capital Stock of (i) the Borrower issued or sold to directors, officers and
employees of, or consultants to, the Borrower or any of its Subsidiaries or (ii)
of the Borrower issued pursuant to the GSCP Acquisition Equity Investment) or
Indebtedness shall be incurred by the Borrower or any of its Subsidiaries
(excluding any Indebtedness permitted by Section 7.2 as in effect on the date of
this Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall
be applied on the date of such issuance or incurrence (or on the first Business
Day thereafter) toward the prepayment of the Term Loans and the reduction of the
Revolving Credit Commitments as set forth in Section 2.12(d).
(b) Unless the Majority Facility Lenders with respect to each Facility
shall otherwise agree, if on any date the Borrower or any of its Subsidiaries
shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then such
Net Cash Proceeds (excluding any Reinvestment Amount) shall be applied on such
date toward the prepayment of the Term Loans and the reduction of the Revolving
Credit Commitments as set forth in Section 2.12(d); PROVIDED, that,
notwithstanding the foregoing, the aggregate Net Cash Proceeds of such Asset
Sales that may be excluded from the foregoing requirement as Reinvestment Amount
shall not exceed $2,500,000 in any fiscal year of the Borrower.
(c) Unless the Majority Facility Lenders with respect to each Facility
shall otherwise agree, if for any fiscal year of the Borrower there shall be
Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow
Application Date, apply the ECF Percentage of such Excess Cash Flow toward the
prepayment of the Term Loans and the
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reduction of the Revolving Credit Commitments as set forth in Section 2.12(d).
Each such prepayment and commitment reduction shall be made on a date (an
"EXCESS CASH FLOW APPLICATION DATE") no later than five days after the earlier
of (i) the date on which the financial statements of the Borrower referred to in
Section 6.1(a), for the fiscal year with respect to which such prepayment is
made, are required to be delivered to the Lenders and (ii) the date such
financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and Commitment
reductions made pursuant to this Section shall be applied, FIRST, to the
prepayment of the Term Loans and, SECOND, to reduce permanently the Revolving
Credit Commitments. Any such reduction of the Revolving Credit Commitments shall
be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line
Loans to the extent, if any, that the Total Revolving Extensions of Credit
exceed the amount of the Total Revolving Credit Commitments as so reduced,
PROVIDED that if the aggregate principal amount of Revolving Credit Loans and
Swing Line Loans then outstanding is less than the amount of such excess
(because L/C Obligations constitute a portion thereof), the Borrower shall, to
the extent of the balance of such excess, replace outstanding Letters of Credit
and/or deposit an amount in cash in a cash collateral account established with
the Administrative Agent for the benefit of the Lenders on terms and conditions
satisfactory to the Administrative Agent. The application of any prepayment
pursuant to this Section shall be made first to Base Rate Loans and second to
Eurodollar Loans. Each prepayment of the Loans under this Section (except in the
case of Revolving Credit Loans that are Base Rate Loans and Swing Line Loans)
shall be accompanied by accrued interest to the date of such prepayment on the
amount prepaid.
(e) Notwithstanding the foregoing provisions of this Section, if at any
time any prepayment of the Loans pursuant to this Section would result, after
giving effect to the procedures set forth in this Agreement, in the Borrower
incurring breakage costs under Section 2.21 as a result of Eurodollar Loans
being prepaid other than on the last day of an Interest Period with respect
thereto, then, the Borrower may, so long as no Default or Event of Default shall
have occurred and be continuing, in its sole discretion, initially (x) deposit a
portion (up to 100%) of the amounts that otherwise would have been paid in
respect of such Eurodollar Loans with the Administrative Agent (which deposit
must be equal in amount to the amount of such Eurodollar Loans not immediately
prepaid) to be held as security for the obligations of the Borrower to make such
prepayment pursuant to a cash collateral agreement to be entered into on terms
reasonably satisfactory to the Administrative Agent, with such cash collateral
to be directly applied upon the first occurrence thereafter of the last day of
an Interest Period with respect to such Eurodollar Loans (or such earlier date
or dates as shall be requested by the Borrower) or (y) make a prepayment of the
Revolving Credit Loans in accordance with Section 2.11 with an amount equal to a
portion (up to 100%) of the amounts that otherwise would have been
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paid in respect of such Eurodollar Loans (which prepayment, together with any
deposits pursuant to clause (x) above, must be equal in amount to the amount of
such Eurodollar Loans not immediately prepaid); PROVIDED that, notwithstanding
anything in this Agreement to the contrary, the Borrower may not request any
Loan under the Revolving Credit Commitments that would reduce the aggregate
amount of the Available Revolving Credit Commitments to an amount that is less
than the amount of such prepayment until the related portion of such Eurodollar
Loans have been prepaid upon the first occurrence thereafter of the last day of
an Interest Period with respect to such Eurodollar Loans; PROVIDED that, in the
case of either clause (x) or (y), such unpaid Eurodollar Loans shall continue to
bear interest in accordance with the applicable provisions hereof until such
unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the
case may be, have or has been prepaid.
(f) If, at any time for any reason, the Revolving Extensions of Credit
exceed an amount equal to the lesser of, (i) the Borrowing Base on such date and
(ii) the Total Revolving Credit Commitments on such date, the Borrower shall:
FIRST prepay the Revolving Credit Loans then outstanding; SECOND pay any
Reimbursement Obligations then outstanding and, LAST, cash collateralize any
outstanding L/C Obligation in an amount equal to such excess.
2.13 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect
from time to time to convert any outstanding Eurodollar Loans to Base Rate Loans
by giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election, PROVIDED that any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert any outstanding Base Rate Loans
to Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election (which notice shall specify the
length of the initial Interest Period therefor), PROVIDED that no Base Rate Loan
under a particular Facility may be converted into a Eurodollar Loan (i) when any
Event of Default has occurred and is continuing and the Administrative Agent or
the Majority Facility Lenders in respect of such Facility have determined in its
or their sole discretion not to permit such conversions or (ii) after the date
that is one month prior to the final scheduled termination or maturity date of
such Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, PROVIDED
that no Eurodollar Loan under a particular Facility
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may be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such continuations or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility, and PROVIDED,
FURTHER, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
Base Rate Loans on the last day of such then expiring Interest Period. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.14 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF EURODOLLAR TRANCHES.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, (a) after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $2,500,000 or a whole multiple of $500,000
in excess thereof and (b) no more than six Eurodollar Tranches shall be
outstanding at any one time.
2.15 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin in effect for such day.
(b) Each Base Rate Loan shall bear interest for each day at a rate per
annum equal to the Base Rate in effect for such day plus the Applicable Margin
in effect for such day.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
which is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section PLUS 2%
or (y) in the case of Reimbursement Obligations, the rate applicable to Base
Rate Loans under the Revolving Credit Facility PLUS 2%, and (ii) if all or a
portion of any interest payable on any Loan or Reimbursement Obligation or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the then rate applicable
to Base Rate Loans under the relevant Facility PLUS 2% (or, in the case of any
such other amounts that do not relate to a
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particular Facility, the then rate applicable to Base Rate Loans under the
Revolving Credit Facility PLUS 2%), in each case, with respect to clauses (i)
and (ii) above, from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
PROVIDED that interest accruing pursuant to paragraph (c) of this Section shall
be payable from time to time on demand.
2.16 COMPUTATION OF INTEREST AND FEES. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the relevant Lenders
of each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the
request of the Borrower, deliver to the Borrower a statement showing
the quotations used by the Administrative Agent in determining any
interest rate pursuant to Section 2.15(a).
2.17 INABILITY TO DETERMINE INTEREST RATE. If prior to the first day of
any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) 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 Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
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the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the first day of such Interest Period,
to Base Rate Loans. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans under the relevant Facility shall be made or
continued as such, nor shall the Borrower have the right to convert Loans under
the relevant Facility to Eurodollar Loans.
2.18 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders shall be
made PRO RATA according to the respective Term Loan Percentages or Revolving
Credit Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on account
of principal of and interest on the Term Loans shall be made PRO RATA according
to the respective outstanding principal amounts of the Term Loans then held by
the Term Loan Lenders. The amount of each principal prepayment of the Term Loans
shall be applied to reduce the then remaining installments of the Term Loans PRO
RATA based upon the then remaining principal amount thereof, PROVIDED that any
prepayment pursuant to Section 2.11 may be applied, at the option of the
Borrower, either (x) FIRST to the next two then scheduled installments of the
Term Loans, and, SECOND, PRO RATA to each of the remaining installments of the
Term Loans, based upon the then remaining principal amounts thereof, or (y) pro
rata to the remaining installments, based upon the then remaining principal
amounts thereof. Amounts prepaid on account of the Term Loans may not be
reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account
of principal of and interest on the Revolving Credit Loans shall be made PRO
RATA according to the respective outstanding principal amounts of the Revolving
Credit Loans then held by the Revolving Credit Lenders.
(d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without set-off or counterclaim and shall be made prior to 1:00 P.M.,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Payment Office, in Dollars and in immediately
available funds. The Administrative
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Agent shall distribute such payments to the Lenders promptly upon receipt in
like funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any
payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any payment
of principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified in writing
by the Borrower prior to the date of any payment being made hereunder that the
Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective PRO RATA shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
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2.19 REQUIREMENTS OF LAW. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 2.20 (including Non-Excluded Taxes imposed
solely by reason of any failure of such Lender to comply with its
obligations (if any) under Section 2.20(d)) and changes in the rate of
tax on the overall net income of such Lender and changes in the rate of
franchise taxes or branch profits taxes of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a
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level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction; PROVIDED
that the Borrower shall not be required to compensate a Lender pursuant to this
paragraph for any amounts incurred more than six months prior to the date that
such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and PROVIDED FURTHER that, if the circumstances giving
rise to such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant to this
Section 2.19 submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section 2.19 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20 TAXES. (a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
net income taxes, franchise taxes and branch profits taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("NON-EXCLUDED TAXES") or Other Taxes
are required to be withheld from any amounts payable to any Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to such Agent or such Lender
(after payment of all Non- Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement,
PROVIDED, however, that the Borrower shall not be required to increase any such
amounts payable to any Lender with respect to any Non- Excluded Taxes (i) that
are attributable to such Lender's failure to comply with the requirements of
paragraph (d) of this Section or (ii) that are United States withholding taxes
imposed on amounts payable to such Lender at the time the Lender becomes a party
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to this Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to Section 2.20(a).
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Agents the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "NON-U.S. LENDER") shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of (X) U.S. Internal Revenue Service Form W-8BEN or Form
W- 8ECI, or (Y) in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest" (i) a statement substantially in the form of
Exhibit H, (ii) a Form W- 8BEN and (iii) to the extent legally entitled to do
so, upon reasonable request by the Borrower, such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments under this Agreement
and any Notes, PROVIDED that in determining the reasonableness of a request
under this clause (iii) such Lender shall be entitled to consider the cost (to
the extent unreimbursed by the Borrower) which would be imposed on such Lender
of complying with such request, and (Z) in the case of a Participant, the Lender
from which the related participation shall have been purchased shall deliver to
the Borrower and the Administrative Agent two copies of U.S. Internal Revenue
Service Form W-8IMY, and in the case of (X), (Y) and (Z), any subsequent
versions thereof or successors thereto properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the
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Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant and the Lender from which the
related participation shall have been purchased, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.
2.21 INDEMNITY. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
OVER (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. If any Lender becomes entitled to claim any amounts under the indemnity
contained in this Section, it shall provide prompt notice thereof to the
Borrower, through the Administrative Agent, certifying (x) that one of the
events described in clause (a), (b) or (c) of the first sentence of this Section
has occurred and describing in reasonable detail the nature of such event, (y)
as to the loss or expense sustained or incurred by such Lender as a consequence
thereof and (z) as to the amount for which such Lender seeks indemnification
hereunder and a reasonably detailed explanation of the calculation thereof. Such
a certificate as to any indemnification pursuant to this Section submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in
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the absence of manifest error. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.22 ILLEGALITY. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it unlawful for
any Lender to make or maintain any Eurodollar Loans as contemplated by this
Agreement ("AFFECTED EURODOLLAR LOANS"), (a) such Lender shall promptly give
written notice of such circumstances to the Borrower and the Administrative
Agent (which notice shall be withdrawn whenever such circumstances no longer
exist), (b) the commitment of such Lender hereunder to make Affected Eurodollar
Loans, continue Affected Eurodollar Loans as such and convert a Base Rate Loan
to an Affected Eurodollar Loan shall forthwith be cancelled, and, until such
time as it shall no longer be unlawful for such Lender to make or maintain such
Affected Eurodollar Loans, such Lender shall then have a commitment only to make
a Base Rate Loan when an Affected Eurodollar Loan is requested (to the extent
otherwise permitted by Section 2.13), (c) such Lender's Loans then outstanding
as Affected Eurodollar Loans, if any, shall be converted automatically to Base
Rate Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law (to the
extent otherwise permitted by Section 2.13) and (d) such Lender's Loans then
outstanding as Affected Eurodollar Loans, if any, not otherwise permitted to be
converted to Base Rate Loans by Section 2.13 shall, upon notice to the Borrower,
be prepaid with accrued interest thereon on the last day of the then current
Interest Period with respect thereto (or such earlier date as may be required by
any such Requirement of Law). If any such conversion or prepayment of an
Affected Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the applicable Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to Section
2.21.
2.23 CERTAIN RULES RELATING TO THE PAYMENT OF ADDITIONAL AMOUNTS. (a)
Upon the request, and at the expense, of the Borrower, each Lender to which the
Borrower is required to pay any additional amount pursuant to Section 2.19 or
2.20, and any participant in respect of whose participation such payment is
required, shall reasonably afford the Borrower the opportunity to contest, and
reasonably cooperate with the Borrower in contesting, the imposition of any
Non-Excluded Tax giving rise to such payment; PROVIDED that (i) such Lender
shall not be required to afford the Borrower the opportunity so to contest
unless the Borrower shall have confirmed in writing to such Lender its
obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower
shall reimburse such Lender for its reasonable attorneys' and accountants' fees
and disbursements incurred in so cooperating with the Borrower in contesting the
imposition of such Non-Excluded Tax; PROVIDED, HOWEVER, that notwithstanding the
foregoing no Lender shall be required to afford the Borrower the opportunity to
contest,
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or cooperate with the Borrower in contesting, the imposition of any Non-Excluded
Taxes, if such Lender in its sole discretion in good faith determines that to do
so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than
pursuant to paragraph (c) below) and the effect of such change, as of the date
of such change, would be to cause the Borrower to become obligated to pay any
additional amount under Section 2.19 or 2.20, the Borrower shall not be
obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the
passage of time or giving of notice, result in payment of any additional amount
to any Lender by the Borrower pursuant to Section 2.19 or 2.20, such Lender
shall promptly notify the Borrower and the Administrative Agent and shall take
such steps as may reasonably be available to it to mitigate the effects of such
condition or event (which shall include efforts to rebook the Loans held by such
Lender at another lending office, or through another branch or an affiliate, of
such Lender); PROVIDED that such Lender shall not be required to take any step
that, in its reasonable judgment, would be disadvantageous to its business or
operations or would require it to incur additional costs (unless such Borrower
agrees to reimburse such Lender for the reasonable incremental out-or-pocket
costs thereof).
(d) If the Borrower shall become obligated to pay additional amounts
pursuant to Section 2.19 or 2.20 and any affected Lender shall not have promptly
taken steps necessary to avoid the need for payments under Section 2.19 or 2.20,
the Borrower shall have the right, for so long as such obligation remains, (x)
with the assistance of the Administrative Agent, to seek one or more substitute
Lenders reasonably satisfactory to the Administrative Agent and the Borrower to
purchase the affected Loan in whole or in part, at an aggregate price no less
than such Loan's principal amount plus accrued interest, and assume the affected
obligations under this Agreement, or (y) upon at least four Business Days
irrevocable notice to the Administrative Agent, to prepay the affected Loan, in
whole or in part, subject to Section 2.19 or 2.20, without premium or penalty.
In the case of the substitution of a Lender, the Borrower, the Administrative
Agent, the affected lender, and any substitute Lender shall execute and deliver
an appropriately completed Assignment and Acceptance pursuant to Section 10.6(c)
to effect the assignment of rights to, and the assumption of obligations by, the
substitute Lender; PROVIDED, that any fees required to be paid by Section
10.6(e) in connection with such assignment shall be paid by the Borrower or the
substitute Lender and PROVIDED, FURTHER, that the Borrower shall be obligated to
pay to the affected Lender an amount equal to any amount that would have been
payable to such Lender pursuant to Section 2.21 if the affected Loan had been
prepaid in full on the date of the assignment thereof pursuant to this
paragraph. In the case of a prepayment of an affected Loan, the amount specified
in
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the notice shall be due and payable on the date specified therein, together with
any accrued interest to such date on the amount prepaid. In the case of each of
the substitution of a Lender and of the prepayment of an affected Loan, the
Borrower shall first pay the affected Lender any additional amounts owing under
Sections 2.19 and 2.20 (as well as any commitment fees and other amounts then
due an owing to such Lender, including, without limitation, any amounts under
Section 2.21) prior to such substitution or prepayment.
(e) If the Administrative Agent or any Lender or any Participant
receives a refund directly attributable to taxes for which the Borrower has made
additional payments pursuant to Section 2.19(a) or 2.20(a), the Administrative
Agent or such Lender, as the case may be, shall promptly pay such refund
(together with any interest with respect thereto received from the relevant
taxing authority) to the Borrower, PROVIDED, HOWEVER, that the Borrower agrees
promptly to return such refund (together with any interest with respect thereto
due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the
Administrative Agent or the applicable Lender, as the case may be, upon receipt
of a notice that such refund is required to be repaid to the relevant taxing
authority.
(f) The obligations of a Lender or Participant under this Section
2.23 shall survive the termination of this Agreement and the payment of the
Loans and all amounts payable hereunder.
Section 3. LETTERS OF CREDIT.
3.1 L/C COMMITMENT. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("LETTERS
OF CREDIT") for the account of the Borrower on any Business Day during the
Revolving Credit Commitment Period denominated in Dollars or an Alternative
Currency in such form as may be approved from time to time by the Issuing
Lender; PROVIDED that the Issuing Lender shall have no obligation to issue any
Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the Revolving Credit Termination Date,
PROVIDED that any Letter of Credit with a one- year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above). Each Letter of Credit shall be
either (x) a standby letter of credit issued to support obligations of the
Borrower or any of its Subsidiaries, contingent or otherwise, which finance the
working capital and business needs of the Borrower and its Subsidiaries incurred
in the ordinary
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course of business, or (y) a commercial letter of credit in respect of the
purchase of goods or services by the Borrower or any of its Subsidiaries in the
ordinary course of business.
(b) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT. The Borrower may from
time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender and
specifying the currency in which the Letter of Credit is to be issued, and such
other certificates, documents and other papers and information as the Issuing
Lender may reasonably request. Upon receipt of any Application, the Issuing
Lender will process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
3.3 COMMISSIONS, FEES AND OTHER CHARGES. (a) The Borrower will pay a
commission on all outstanding Letters of Credit at a per annum rate equal to the
Applicable Margin then in effect with respect to Eurodollar Loans under the
Revolving Credit Facility, shared ratably among the Revolving Credit Lenders and
payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date (calculated, in the case of Letters of Credit denominated in Alternative
Currencies, based upon the respective Assigned Dollar Values for such Letters of
Credit). In addition, the Borrower shall pay to the Issuing Lender for its own
account a fronting fee of 1/4 of 1% per annum, payable quarterly in arrears on
each L/C Fee Payment Date after the Issuance Date.
(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
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3.4 L/C PARTICIPATIONS. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Credit Percentage of the amount of such draft,
or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
3.4(a) is not made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum
applicable to Base Rate Loans under the Revolving Credit Facility. A certificate
of the Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its PRO
RATA share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its PRO RATA share thereof;
PROVIDED, HOWEVER, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender,
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such L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER. The Borrower agrees to
reimburse the Issuing Lender on each date on which the Issuing Lender notifies
the Borrower of the date and amount of a draft presented under any Letter of
Credit and paid by the Issuing Lender for the amount of (a) such draft so paid
(calculated, in the case of a Letter of Credit denominated in an Alternative
Currency, based upon the Dollar Equivalent of such draft) and (b) any taxes,
fees, charges or other costs or expenses incurred by the Issuing Lender in
connection with such payment. Each such payment shall be made to the Issuing
Lender at its address for notices specified herein in lawful money of the United
States of America and in immediately available funds on the date which the
Borrower receives such notice, if received prior to 11:00 A.M., New York City
time, on a Business Day and, otherwise, on the next succeeding Business Day.
Interest shall be payable on any and all amounts remaining unpaid by the
Borrower under this Section from the date such amounts become payable (whether
at stated maturity, by acceleration or otherwise) until payment in full at the
rate set forth in (i) until the second Business Day following the date of the
applicable drawing, Section 2.15(b) and (ii) thereafter, Section 2.15(c). Each
drawing under any Letter of Credit shall (unless an event of the type described
in clause (i) or (ii) of Section 8(f) shall have occurred and be continuing with
respect to the Borrower, in which case the procedures specified in Section 3.4
for funding by L/C Participants shall apply) constitute a request by the
Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5 of
Base Rate Loans (or, at the option of the Administrative Agent and the Swing
Line Lender in their sole discretion, a borrowing pursuant to Section 2.7 of
Swing Line Loans) in the amount of such drawing. The Borrowing Date with respect
to such borrowing shall be the date of such drawing.
3.6 OBLIGATIONS ABSOLUTE. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message
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or advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Issuing Lender. The Borrower agrees that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards or care specified in
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.
3.7 LETTER OF CREDIT PAYMENTS. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit,
PROVIDED that this paragraph shall not relieve the Issuing Lender of any
liability resulting from the gross negligence or willful misconduct of the
Issuing Lender or otherwise effect any defense or other right that the Borrower
may have as a result of such gross negligence or willful misconduct.
3.8 APPLICATIONS. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
Section 4. REPRESENTATIONS AND WARRANTIES. To induce the Agents and
the Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 FINANCIAL CONDITION. (a) The unaudited PRO FORMA consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at June 30,
1999 (including the notes thereto) (the "PRO FORMA BALANCE SHEET"), copies of
which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to (i) the Acquisition,
(ii) the Loans to be made on the Closing Date and the use of the proceeds
thereof and (iii) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the best
information available to the Borrower as of the date of delivery thereof and
presents fairly in all material respects on a PRO FORMA basis the estimated
financial position of the
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Borrower and its consolidated Subsidiaries as at June 30, 1999, assuming that
the events specified in the preceding sentence had actually occurred at such
date.
(b) The audited consolidated balance sheets of the Borrower as at
December 31, 1997 and December 31, 1998, and the related consolidated statements
of income and of cash flows for the fiscal years ended on such dates, reported
on by Deloitte & Touche and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, respectively, present fairly, in
all material respects, the consolidated financial condition of the Borrower and
its consolidated Subsidiaries as at such date, and the consolidated results of
its operations and its consolidated cash flows for the respective fiscal years
then ended. The unaudited consolidated balance sheet of the Borrower as at June
30, 1999, and the related unaudited consolidated statements of income and cash
flows for the six-month period ended on such date, present fairly, in all
material respects, the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the six-month period then ended
(subject to normal year-end audit adjustments and any other adjustments
described therein). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as stated in the financial
statements, including the related notes, and except that the quarterly financial
statements do not contain all of the footnote disclosures required by GAAP).
During the period from June 30, 1999 to and including the date hereof there has
been no Disposition by the Borrower and its consolidated Subsidiaries of any
material part of its business or Property, taken as a whole.
(c) The special purpose audited combined balance sheets of the ▇▇▇▇
Companies as at December 31, 1998, and the related special purpose combined
statements of income and of cash flows for the fiscal year ended on such date,
reported on by KPMG present fairly, in all material respects, the financial
position and results of operations of the ▇▇▇▇ Companies and their Subsidiaries
as at the end of and for such fiscal year, provided, however, that ▇▇▇▇ Products
Co. GmbH is a party to a lease agreement for a site at Willich-Munchelde,
Germany which was reflected as an operating lease in such financial statements
of the ▇▇▇▇ Companies and should properly have been reflected as a Capital Lease
Obligation. All such financial statements have been prepared in accordance with
GAAP applied consistently, with the exception of income Taxes, as discussed in
the notes to the financial statements, and as otherwise stated in the financial
statements, including the related notes, provided, however, that ▇▇▇▇ Products
Co. GmbH is a party to a lease agreement for a site at Willich-Munchelde,
Germany which was reflected as an operating lease in such financial statements
of the ▇▇▇▇ Companies and should properly have been reflected as a Capital Lease
Obligation. During the period from December 31, 1998 to and including the date
hereof there has been no Disposition
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by the ▇▇▇▇ Companies and their consolidated Subsidiaries of any material part
of their business or Property, taken as a whole, other than in connection with
the Acquisition.
4.2 NO CHANGE. Since June 30, 1999 (other than as may result from the
incurrence of the Indebtedness hereunder) there has been no development or event
which has had or would reasonably be expected to have a Material Adverse Effect.
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction other than
where the absence of such qualification would not reasonably be expected to have
a Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the Acquisition and the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect, (ii) the
filings referred to in Section 4.19 and (iii) consents, authorizations, notices
and filings which the failure to obtain or make would not reasonably be expected
to have a Material Adverse Effect. This Agreement has been duly executed by the
Borrower, and each of the other Loan Documents have been, or will be, duly
executed and delivered on behalf of each Loan Party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party thereto, enforceable
against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
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4.5 NO LEGAL BAR. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of the Borrower or any of its
Subsidiaries in any respect that would reasonably be expected to have a Material
Adverse Effect, and will not result in, or require, the creation or imposition
of any Lien other than Liens permitted by Section 7.3 on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents).
No Requirement of Law or Contractual Obligation applicable to the Borrower or
any of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
4.6 NO MATERIAL LITIGATION. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues,
(a) which is so pending or threatened at any time on or prior to the date hereof
and relates to any of the Loan Documents or the Acquisition or any of the
transactions contemplated hereby or thereby or (b) which would reasonably be
expected to have a Material Adverse Effect.
4.7 NO DEFAULT. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which would reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its material real property, and good title to, or a valid leasehold interest in,
all its other material Property, and none of such Property is subject to any
Lien except as permitted by Section 7.3.
4.9 INTELLECTUAL PROPERTY. The Borrower and each of its Subsidiaries
owns, or has the legal right to use, all patents, patent applications,
trademarks, trademark applications, trade names, copyrights, technology,
know-how and processes necessary for each of them to conduct its business as
currently conducted (the "INTELLECTUAL PROPERTY") except for those the failure
to own or have such legal right to use would not reasonably be expected to have
a Material Adverse Effect. Except as provided on Schedule 4.9, no material claim
has been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does the Borrower know of any such claim, and
except as provided on Schedule 4.9, to the knowledge of the Borrower, the use of
such Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any
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Person, except for such claims and infringement which in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.
4.10 TAXES. To the knowledge of the Borrower, the Borrower and each
of its Subsidiaries has filed or caused to be filed all U.S. Federal, state and
other material tax returns which are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments of which it
has received notice made against it or any of its Property and all other taxes,
fees or other charges imposed on it or any of its Property by any Governmental
Authority and no tax Lien has been filed, and, no claim is being asserted, with
respect to any such tax, fee or other charge (other than any amount or validity
of which are currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided on
the books of the Borrower or its Subsidiaries, as the case may be) except as set
forth on Schedule 4.10 hereto.
4.11 FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose which violates the provisions of
such Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1 referred to in Regulation U.
4.12 LABOR MATTERS. There are no strikes or other labor disputes
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that (individually or in the aggregate) would
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters except where such violations (individually or in
the aggregate) would not reasonably be expected to have a Material Adverse
Effect. The consummation of the Acquisition will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any of its Subsidiaries
(or any predecessor) is a party or by which the Borrower or any of its
Subsidiaries (or any predecessor) is bound.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, which, and each
Plan has complied in all material respects with the applicable provisions of
ERISA and the Code except where
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such Reportable Event, "Accumulated Funding Deficiency", or non-compliance,
individually or in the aggregate, has not resulted and is not reasonably likely
to result in a Material Adverse Effect. No termination of a Single Employer Plan
has occurred (other than a standard termination pursuant to Section 4041(b) of
ERISA), and no Lien on the property of the Borrower or its Subsidiaries in favor
of the PBGC or a Plan has arisen, during such five-year period which has
resulted or is reasonably likely to result in a Material Adverse Effect. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by an amount which has resulted or is reasonably likely to result in a
Material Adverse Effect. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan which has
resulted or is reasonably likely to result in a Material Adverse Effect, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any material liability under ERISA which is reasonably likely to result in a
Material Adverse Effect if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the annual
valuation date most closely preceding the date on which this representation is
made or deemed made. No Multiemployer Plan is in Reorganization or Insolvent.
4.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness as
contemplated hereby.
4.15 SUBSIDIARIES. The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the date hereof; such
Schedule identifies all such Subsidiaries which constitute Excluded Foreign
Subsidiaries.
4.16 USE OF PROCEEDS. The proceeds of the Term Loans made on the
Closing Date shall be used to finance a portion of the Acquisition and pay fees
and expenses related to the Acquisition. The proceeds of the Revolving Credit
Loans and the Swing Line Loans, and the Letters of Credit, shall be used for
general corporate purposes (including the financing of the Acquisition,
including through the issuance of the Preference Stock, and the fees and
expenses relating thereto).
4.17 ENVIRONMENTAL MATTERS. Other than as set forth in Schedule 4.17
hereto:
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(a) The facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "PROPERTIES") do not contain, and
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under circumstances which (i) constitute or
constituted a violation of, or (ii) could give rise to liability under,
any Environmental Law, except in either case insofar as such violation or
liability, or any aggregation thereof, would not reasonably be expected to
result in a Material Adverse Effect.
(b) The Properties and all operations at the Properties are in
material compliance, and since June 6, 1995 have been in material
compliance, with all applicable Environmental Laws except as in the
aggregate could not reasonably be expected to result in a Material Adverse
Effect; there is no contamination at, under or about the Properties or
violation of any Environmental Law with respect to the Properties or the
business operated by the Borrower or any of its Subsidiaries (the
"BUSINESS") which would reasonably be expected to result in a Material
Adverse Effect or materially impair the fair saleable value thereof.
(c) Neither the Borrower nor any of its Subsidiaries has received or
is aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or
the Business, nor does the Borrower have knowledge or reason to believe
that any such notice will be received or is being threatened, except
insofar as such notice or threatened notice, or any aggregation thereof,
does not involve a matter or matters that would reasonably be expected to
result in a Material Adverse Effect.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that could give rise to liability under, any applicable
Environmental Law, except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, would not
reasonably be expected to result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the
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Properties or the Business, except insofar as such proceeding, action,
decree, order or other requirement, or any aggregation thereof, would not
reasonably be expected to result in a Material Adverse Effect.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in connection
with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws, except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof,
would not reasonably be expected to result in a Material Adverse Effect.
4.18 ACCURACY OF INFORMATION, ETC. No written statement or
information contained in this Agreement, any other Loan Document or any other
document, certificate or statement furnished to the Administrative Agent or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the Closing Date, any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances under which such statements were made. The projections and PRO
FORMA financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. As of the Closing Date, the representations and
warranties of the Borrower and, to the knowledge of the Borrower, the
stockholders of the ▇▇▇▇ Companies contained in the Acquisition Agreement are
true and correct in all material respects.
4.19 COLLATERAL. Except with respect to (i) Liens on equipment
constituting fixtures, (ii) any reserved rights of the United States government
as required under law, (iii) Liens upon Patents, Patent Licenses, Trademarks and
Trademark Licenses (as such terms are defined in the Guarantee and Collateral
Agreement) to the extent that (a) such Liens are not otherwise perfected by the
filing of financing statements under the Uniform Commercial Code or by the
filing and acceptance thereof in the United States Patent and Trademark Office
or (b) such Patents, Patent Licenses, Trademarks and Trademark Licenses are not,
individually or in the aggregate, material to the business of the Borrower and
its Subsidiaries taken as a whole, (iv) Liens on uncertificated securities, (v)
Liens on Collateral the perfection of which requires filings in or other actions
under the laws of jurisdictions outside of the United States of America, any
State, territory or dependency
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thereof or the District of Columbia (except to the extent such filings or other
actions have been made or taken), (vi) Liens on Proceeds of Accounts Receivable
and Inventory, until transferred to or deposited in the Collateral Proceeds
Account (if any) as defined in the Guarantee and Collateral Agreement of the
Credit Agreement, and (vii) claims of creditors of Persons receiving goods
included as Collateral for "sale or return" within the meaning of Section 2-326
of the Uniform Commercial Code of the applicable jurisdiction, (x) in the case
of Collateral owned by Varnco, ▇▇▇▇ Products Co., JVTEX and Graph Tech, upon
filing of the financing statements delivered to the Administrative Agent by the
Borrower and its Subsidiaries on the Closing Date in the jurisdictions listed on
Schedule 4.19(a) (which financing statements are in proper form for filing in
such jurisdictions) and the recording of the Mortgages listed on Schedule
4.19(b) (and the recording of the Patent and Trademark Security Agreement, and
the making of filings after the Closing Date in any other jurisdiction as may be
necessary under any Requirement of Law) and the delivery to, and continuing
possession by, the Administrative Agent of all Instruments and Documents a
security interest in which is perfected by possession and (y) in the case of all
other Collateral ("EXISTING COLLATERAL"), assuming continuing possession by the
Administrative Agent of all Instruments and Documents a security interest in
which is perfected by possession, the Liens created pursuant to each Security
Document will constitute or, in the case of Existing Collateral, constitute
valid Liens on and, to the extent provided therein, perfected security interests
in the collateral referred to in such Security Document (but as to the
Copyrights and the Copyright Licenses (as defined in the Guarantee and
Collateral Agreement) and accounts arising therefrom, only to the extent the
Uniform Commercial Code of the relevant jurisdiction, from time to time in
effect, is applicable) in favor of the Administrative Agent for the benefit of
the Lenders, which Liens will be or, in the case of Existing Collateral, are
prior to all other Liens of all other Persons, except for Liens permitted
pursuant to the Loan Documents (including, without limitation, those permitted
to exist pursuant to Section 7.3), and which Liens are enforceable as such as
against all other Persons (except, with respect to goods only, buyers in the
ordinary course of business to the extent provided in Section 9-307(l) of the
Uniform Commercial Code as from time to time in effect in the applicable
jurisdiction and except to the extent that recording of an assignment or other
transfer of title to the Administrative Agent in the United States Patent and
Trademark Office or the United States Copyright Office or other applicable
office may be necessary for such enforceability), except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law). Notwithstanding any other provision of this Agreement,
capitalized terms which are used in this Section 4.19 and not defined in this
Agreement are so used as defined in the applicable Security Document.
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4.20 SOLVENCY. Each Loan Party is, and after giving effect to the
Acquisition and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be Solvent.
4.21 REGULATION H. No Mortgage encumbers improved real property which
is located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of
1968.
4.22 OWNERSHIP OF STOCK. On the Closing Date all the issued and
outstanding Capital Stock of the Borrower will be owned by the Sponsors and
certain of the management stockholders of the Borrower, except that the
Preference Stock will be owned by the parties to the Preference Stock Purchase
Agreement (other than the Borrower).
4.23 SENIOR INDEBTEDNESS. The Obligations constitute "Senior
Indebtedness" of the Borrower under and as defined in the Senior Subordinated
Note Indenture, the Senior Preferred Stock and the Exchange Debenture Indenture.
The obligations of each Subsidiary guarantor under the Guarantee and Collateral
Agreement constitute "Guarantor Senior Indebtedness" of such Subsidiary
Guarantor under and as defined in the Senior Subordinated Note Indenture and the
Exchange Debenture Indenture.
4.24 YEAR 2000 MATTERS. Any reprogramming required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be impaired by the occurrence of the year 2000) in and following the
year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower or any of its
Subsidiaries or used or relied upon in the conduct of their business (including
any such system and other equipment supplied by others or with which the
computer systems of the Borrower or any of its Subsidiaries interface), and the
testing of all such systems and other equipment as so reprogrammed, have been
completed except insofar as any failure to so reprogram or test referred to in
this paragraph, or any aggregation thereof, would not reasonably be expected to
result in a Material Adverse Effect. The computer systems of the Borrower and
its Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient for the conduct of
their business as currently conducted.
4.25 MORTGAGED PROPERTY. Set forth on Schedule 1.1B is a list of each
piece of domestic real property that will be owned by the Borrower or any of its
Subsidiaries on the Closing Date that has a value (together with the
improvements thereto) of at least $1,000,000.
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4.26 CERTAIN AGREEMENTS. The Borrower has delivered to the
Administrative Agent a complete and correct copy of the Acquisition Agreement,
the Preference Stock Purchase Agreement, the Certificate of Designation with
respect to the Preference Stock and the Stockholders Agreement, including any
amendments, supplements or modifications with respect to the foregoing.
Section 5. CONDITIONS PRECEDENT.
5.1 CONDITIONS TO INITIAL EXTENSION OF CREDIT. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Borrower, (ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of the Borrower and each Subsidiary
Guarantor, (iii) the Patent and Trademark Security Agreement, executed and
delivered by a duly authorized officer of Day International, Inc., (iv) a
Mortgage covering each of the New Mortgaged Properties, executed and
delivered by a duly authorized officer of each party thereto, (v) a
Mortgage Amendment with respect to each of the Existing Mortgages and (vi)
for the account of each relevant Lender, Notes conforming to the
requirements hereof and executed and delivered by a duly authorized
officer of the Borrower.
(b) EXISTING CREDIT AGREEMENT. (i) All accrued unpaid interest, fees,
commissions and other amounts (other than principal) owing under the
Existing Credit Agreement shall have been paid.
(ii) The Revolving Credit Loans outstanding under the Existing
Credit Agreement shall be reallocated as directed by the
Administrative Agent, with the result that the Revolving Credit Loans
will be held by the Revolving Credit Lenders in accordance with their
respective Revolving Credit Commitments.
(iii) Each Existing Lender which will not continue as a Lender
hereunder (a "DEPARTING LENDER") shall deliver to the Administrative
Agent an acknowledgment that its Commitments and Loans under the
Existing Credit Agreement are being assigned and reallocated as set
forth herein.
(iv) The Lenders and Departing Lenders will make such payments
among themselves as directed by the Administrative Agent so that,
after giving effect thereto, the outstanding Revolving Credit Loans
and Term Loans will be held by
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the Lenders in accordance with their respective Revolving Credit
Percentages and Term Loan Percentages and with Interest Periods that
all begin on the Closing Date and end on the same later date, and the
Borrower shall pay all breakage costs owed to each Existing Lender
pursuant to Section 2.12 in connection with resetting the Interest
Periods of existing Eurodollar Loans on the Closing Date as if the
Borrower had prepaid Loans on the Closing Date.
(c) ACQUISITION, ETC. The following transactions shall have been
consummated, in each case on terms and conditions reasonably satisfactory
to the Lenders:
(i) The Borrower or its Subsidiaries shall have acquired all
of the Capital Stock of the ▇▇▇▇ Companies pursuant to the terms of
the Acquisition Agreement without any waiver of any of the material
conditions to the obligations of the Borrower and its Subsidiaries to
consummate the Acquisition (including, without limitation, any such
waiver effected by the Borrower failing to exercise its right to
terminate the Acquisition Agreement pursuant to the provisions of
Section 9.1 of the Acquisition Agreement after it shall have been
informed that a representation and warranty in the Acquisition
Agreement is untrue) that has not been consented to by the Lenders;
and
(ii) The Borrower shall have received at least $38,500,000
from the proceeds of shares of the Preference Stock issued by the
Borrower pursuant to the Preference Stock Purchase Agreement (the
"GSCP ACQUISITION EQUITY INVESTMENT").
(d) PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated
financial statements of the Borrower and its Subsidiaries for the 1998 and
1997 fiscal years, (iii) the special purpose audited financial statements
of the ▇▇▇▇ Companies for the year ended December 31, 1998, (iv) unaudited
interim consolidated financial statements of the Borrower and its
Subsidiaries, and the ▇▇▇▇ Companies, for each fiscal quarterly period
ended subsequent to the date of the latest applicable financial statements
delivered pursuant to clause (ii) of this paragraph as to which such
financial statements are available and (v) unaudited interim consolidated
financial statements of the Borrower and its Subsidiaries (excluding the
▇▇▇▇ Companies and ▇▇▇▇▇▇▇▇▇ TPO) for each fiscal month ended subsequent
to the date of the latest applicable financial statements delivered
pursuant to clause (iv) of this paragraph as to which such financial
statements are available.
(e) APPROVALS. All material governmental and third party approvals
(including landlords' and other consents) necessary in connection with the
Acquisition, the
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continuing operations the Borrower and its Subsidiaries and the
transactions contemplated hereby shall have been obtained and be in full
force and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority
which would materially restrain, prevent or otherwise impose material
adverse conditions on the Acquisition or the financing contemplated
hereby.
(f) TERMINATION OF ▇▇▇▇ INDEBTEDNESS. The Administrative Agent shall
have received evidence satisfactory to the Administrative Agent that all
material Indebtedness of the ▇▇▇▇ Companies (other than the German Debt
(as such term is defined in the Acquisition Agreement)) shall be
simultaneously terminated, all amounts thereunder shall be simultaneously
paid in full and arrangements satisfactory to the Administrative Agent
shall have been made for the termination of any Liens and security
interests granted in connection therewith.
(g) FEES. The Lenders and the Administrative Agent shall have
received all fees required to be paid by the Borrower to the
Administrative Agent or the Lenders in connection herewith, and all
expenses for which invoices have been presented, on or before the Closing
Date.
(h) EXPENSES. The Administrative Agent shall have received
satisfactory evidence that the fees and expenses to be incurred in
connection with the Acquisition and the financing thereof shall not exceed
$3,500,000, which fees shall be payable on the Closing Date.
(i) CLOSING CERTIFICATE. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit I,
with appropriate insertions and attachments.
(j) LEGAL OPINIONS. The Administrative Agent shall have received (i)
the legal opinion of Debevoise & ▇▇▇▇▇▇▇▇, counsel to the Borrower and its
Subsidiaries, substantially in the form of Exhibit J and such legal
opinion shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably
require and (ii) to the extent consented to by the relevant counsel, each
legal opinion delivered in connection with the Acquisition authorizing
reliance thereon by the Administrative Agent and the Lenders.
(k) PLEDGED STOCK; STOCK POWER; PLEDGED NOTES. The Administrative
Agent shall have received (i) the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral Agreement,
together with an undated stock power for each such certificate executed in
blank by a duly authorized
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officer of the pledgor thereof and (ii) each promissory note pledged to
the Administrative Agent pursuant to the Guarantee and Collateral
Agreement endorsed (without recourse) in blank (or accompanied by an
executed transfer form in blank satisfactory to the Administrative Agent)
by the pledgor thereof.
(l) FILINGS, REGISTRATIONS AND RECORDINGS. Each document (including,
without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested by
the Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person (other than with respect to Liens
expressly permitted by Section 7.3), shall be in proper form for filing,
registration or recordation.
(m) TITLE INSURANCE; FLOOD INSURANCE. (i) The Administrative Agent
shall have received in respect of each New Mortgaged Property a
mortgagee's title insurance policy (or policies) or marked up
unconditional binder for such insurance. Each such policy shall (A) be in
an amount reasonably satisfactory to the Administrative Agent; (B) be
issued at ordinary rates (other than with respect to affirmative
insurance); (C) insure that the Mortgage insured thereby creates a valid
first Lien on such New Mortgaged Property free and clear of all defects
and encumbrances, except those Liens expressly permitted by Section 7.3
and such defects and encumbrances as may be approved by the Administrative
Agent (D) name the Administrative Agent for the benefit of the Lenders as
the insured thereunder; (E) be in the form of ALTA Loan Policy - 1970
(Amended 10/17/70 and 10/17/84) (or ALTA Loan Policy - 1992) (or
equivalent policies); (F) contain such endorsements and affirmative
coverage as the Administrative Agent may reasonably request, except zoning
endorsements; and (G) be issued by title companies reasonably satisfactory
to the Administrative Agent (including any such title companies acting as
co-insurers or reinsurers, at the option of the Administrative Agent). The
Administrative Agent shall have received in respect of each property
either (i) a zoning endorsement, or (ii) written confirmation from the
applicable zoning commission or other appropriate Governmental Authority
stating that with respect to each New Mortgaged Property as built it
complies with existing land use and zoning ordinances, regulations and
restrictions applicable to such New Mortgaged Property. The Administrative
Agent shall have received evidence reasonably satisfactory to it that all
premiums in respect of each such policy, all charges for mortgage
recording tax, and all related expenses, if any, have been paid.
(ii) If reasonably requested by the Administrative Agent, the
Administrative Agent shall have received (A) a policy of flood
insurance which (1) covers any
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parcel of improved real property which is encumbered by any new
Mortgage, (2) is written in an amount equal to the lesser of (a) the
outstanding principal amount of the indebtedness secured by such new
Mortgage which is reasonably allocable to such real property or (b)
the maximum amount of coverage made available with respect to the
particular type of property under the National Flood Insurance Act of
1968, and (3) has a term ending not later than the maturity of the
Indebtedness secured by such new Mortgage and (B) confirmation that
the Borrower has received the notice delivered to the Borrower by the
Administrative Agent as required pursuant to Section 208(e)(3) of
Regulation H of the Board.
(iii) The Administrative Agent shall have received a copy of
all recorded documents referred to, or listed as exceptions to title
in, the title policy or policies referred to in clause (i) above and
a copy of all other material documents affecting the New Mortgaged
Properties as shall have been requested by the Administrative Agent.
(n) TITLE INSURANCE CONFIRMATION REGARDING EXISTING MORTGAGES. (i)
The Administrative Agent shall have received from the Title Insurance
Company endorsements to each of the title insurance policies issued
pursuant to the terms of the Existing Credit Agreement (the "EXISTING
POLICIES") stating (a) that the estates insured by the Existing Policies
are subject to no mechanics liens, judgment liens, tax liens, mortgages,
or other intervening liens or encumbrances which could have priority over
the Liens created by the Existing Mortgages as amended by the Mortgage
Amendments and (b) that the modification of the indebtedness contemplated
by this Agreement does not, in any way, affect the priority of the Liens
created by the Existing Mortgages as amended by the Mortgage Amendments.
Notwithstanding the foregoing, the Administrative Agent shall not require
an endorsement to the title insurance policy issued by First American
Title Insurance Company on February 2, 1998, number FA-36-111578.
(o) MORTGAGE AMENDMENTS. The Administrative Agent shall have received
an amendment to each of the Existing Mortgages (collectively, the
"MORTGAGE AMENDMENTS"), in recordable form, which modifies the respective
Existing Mortgages to secure the Indebtedness hereunder and under the
other Loan Documents as such Indebtedness is modified and increased after
giving effect to this Agreement, which Mortgage Amendments shall be
satisfactory to the Administrative Agent in all respects.
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(p) INSURANCE. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 5.2.2 of the Guarantee
and Collateral Agreement.
5.2 CONDITIONS TO EACH EXTENSION OF CREDIT. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall, except to the extent that they speak as of a particular date (in
which case they shall be true as of such date), be true and correct in all
material respects on and as of such date as if made on and as of such
date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) AVAILABLE COMMITMENTS. After giving effect to such extension of
credit, the Borrowing Base would be equal to or greater than the aggregate
principal amount of the Revolving Credit Loans, Swing Line Loans and L/C
Obligations then outstanding.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
Section 6. AFFIRMATIVE COVENANTS. The Borrower hereby agrees that,
from and after the Closing Date and so long as the Revolving Credit Commitments
remain in effect, and thereafter until payment in full of the Loans, all
Reimbursement Obligations and any other amount then due and owing to any Lender
or the Administrative Agent hereunder and under any Note and termination or
expiration of all Letters of Credit, the Borrower shall (except in the case of
delivery of financial information, reports and notices) and shall cause each of
its Subsidiaries to:
6.1 FINANCIAL STATEMENTS. Furnish to the Agent for delivery to each
Lender):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related
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audited consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like qualification
or exception, or qualification arising out of the scope of the audit, by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Deloitte & Touche or other independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
and other adjustments); and
(c) as soon as available, but in any event not later than 45 days
after the end of each month occurring during each fiscal year of the
Borrower (other than the third, sixth, ninth and twelfth such month), the
unaudited consolidated balance sheets of the Borrower and its Subsidiaries
as at the end of such month and the related unaudited consolidated
statements of income and of cash flows for such month and the portion of
the fiscal year through the end of such month, setting forth in each case
in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements delivered pursuant to Section 6.1(a) and 6.1(b)
shall be complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP applied consistently throughout
the periods reflected therein and with prior periods that began on or after the
Closing of the Acquisition (except as approved by such accountants or officer,
as the case may be, and disclosed therein).
6.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Agent for
delivery to each Lender, or, in the case of clause (f), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default insofar as the
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same relates to any financial accounting matters covered by their audit,
except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
pursuant to Section 6.1(a) and (b), (i) a certificate of a Responsible
Officer stating that, to the best of each such Responsible Officer's
knowledge, each Loan Party during such period has observed or performed
all of its covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Loan Documents to which it is a
party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate, (ii) a Compliance
Certificate containing all information necessary for determining
compliance by the Borrower and its Subsidiaries with the provisions of
Sections 7.1 and 7.7 (in the case where such Certificate is being
delivered together with the financial statements required pursuant to
Section 6.1(a)) and 2.12(c) of this Agreement referred to therein as of
the last day of the fiscal quarter or fiscal year of the Borrower, as the
case may be, and (iii) to the extent not previously disclosed to the
Administrative Agent, a listing of any county or state within the United
States where any Loan Party keeps inventory or equipment and of any
Intellectual Property acquired by any Loan Party since the date of the
most recent list delivered pursuant to this clause (iii) (or, in the case
of the first such list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than 30 days
after the end of each fiscal year of the Borrower, a consolidated budget
for the following fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following
fiscal year, and the related consolidated statements of projected cash
flow, projected changes in financial position and projected income), and,
as soon as available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the
"PROJECTIONS"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer to the effect that such Responsible
Officer believes such Projections to have been prepared on the basis of
reasonable assumptions;
(d) within five Business Days after the same are sent, copies of all
financial statements and reports which the Borrower sends to the holders
of any class of its debt securities or public equity securities and,
within five Business Days after the same are filed, copies of all
financial statements and reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
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(e) on the 25th day of each calendar month (and at such other times
as the Administrative Agent reasonably may request), a Borrowing Base
Certificate, certified by a Responsible Officer of the Borrower as being
true and accurate in all material respects, setting forth the Borrower's
calculation of the Borrowing Base as of the date specified in such
certificate (which, with respect to the Borrowing Base Certificate
delivered on the 25th day of a calendar month, shall be as of the last
Business Day of the prior calendar month); and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE, ETC. (a) (i)
Preserve, renew and keep in full force and effect its corporate existence and
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 7.4 and except, in the case of
clause (ii) and (with respect to Subsidiaries) clause (i) above, to the extent
that failure to do so would not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements
of Law except to the extent that failure to comply therewith would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.5 MAINTENANCE OF PROPERTY; INSURANCE. (a) Keep all Property useful
and necessary in its business taken as a whole in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all such Property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or a
similar business.
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all material Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender to visit and inspect any of its properties
and examine and, to the extent reasonable,
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make abstracts from any of its books and records at any reasonable time and to
discuss the business, operations, properties and financial and other condition
of the Borrower and its Subsidiaries with officers and employees of the Borrower
and its Subsidiaries and with its independent certified public accountants in
each case at any reasonable time, upon reasonable notice and as often as
reasonably desired.
6.7 NOTICES. Give notice to the Administrative Agent and each Lender:
(a) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, of the occurrence of any Default
or Event of Default;
(b) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, of any (i) default or event of
default under any Contractual Obligation of the Borrower or any of its
Subsidiaries other than as previously disclosed in writing to the Lenders
or (ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely determined,
as the case may be, could reasonably be expected to have a Material
Adverse Effect;
(c) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, of any litigation or proceeding
affecting the Borrower or any of its Subsidiaries in which the amount
involved is $2,500,000 or more and not covered by insurance or in which
injunctive or similar relief is sought;
(d) promptly of the following events, as soon as possible and in any
event within 30 days after a Responsible Officer of the Borrower knows or
reasonably should know thereof: (i) the occurrence of any Reportable Event
with respect to any Single Employer Plan, a failure to make any required
contribution to a Single Employer Plan or Multiemployer Plan, the creation
of any Lien on the property of the Borrower and its Subsidiaries in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other formal action by the
PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan which could reasonably be expected to result in the
withdrawal from, or the termination, Reorganization or Insolvency of, any
Single Employer or Multiemployer Plan; PROVIDED, HOWEVER, that no such
notice will be required under clause (i) or (ii) above unless the event
giving rise to such notice, when aggregated with all other such events
under clause (i) or (ii) above, could be reasonably expected to result in
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liability to the Borrower or its Subsidiaries in an amount that would
exceed $1,000,000; and
(e) as soon as possible after a Responsible Officer of the Borrower
knows or reasonably should know thereof, of any development or event which
has had or could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or the relevant Subsidiary proposes to take
with respect thereto.
6.8 ENVIRONMENTAL LAWS. (a) Comply in all material respects with, and
take reasonable efforts to ensure compliance in all material respects by all
tenants and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under applicable
Environmental Laws and in a timely manner comply in all material respects with
all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
6.9 ADDITIONAL COLLATERAL, ETC. (a) With respect to any Property
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than (x) any Property described in paragraph (b), (c) or (d) below and
(y) any Property subject to a Lien expressly permitted by Section 7.3(g)) as to
which the Administrative Agent, for the benefit of the Lenders, does not have a
perfected Lien, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a security interest in
such Property and (ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected security
interest in such Property, including without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent.
(b) With respect to any fee interest in any real property having a
value (together with improvements thereof) of at least $1,000,000 (or $250,000
if an Event of Default exists) acquired after the Closing Date by the Borrower
or any of its Subsidiaries (other than any such real property subject to a Lien
expressly permitted by Section 7.3(g)),
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promptly (i) execute and deliver a first priority Mortgage in favor of the
Administrative Agent, for the benefit of the Lenders, covering such real
property, (ii) if reasonably requested by the Administrative Agent, provide the
Lenders with (x) title and extended coverage insurance covering such real
property in an amount at least equal to the purchase price of such real estate
(or such other amount as shall be reasonably specified by the Administrative
Agent) as well as a current ALTA survey thereof, together with a surveyor's
certificate and (y) any consents or estoppels reasonably deemed necessary or
advisable by the Administrative Agent in connection with such Mortgage, each of
the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and (iii) if reasonably requested by the Administrative
Agent and the value of the real property is at least $2,500,000 ($500,000 if an
Event of Default exists), deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary) created or acquired after the Closing Date (which, for the
purposes of this paragraph (c), shall include any existing Subsidiary that
ceases to be an Excluded Foreign Subsidiary), by the Borrower or any of its
Subsidiaries, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative Agent
deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in the
Capital Stock of such new Subsidiary which is owned by the Borrower or any of
its Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of
the Lenders a perfected security interest in the Collateral described in the
Guarantee and Collateral Agreement with respect to such new Subsidiary,
including, without limitation, the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be requested by the Administrative
Agent, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) With respect to any new Foreign Subsidiary created or acquired
after the Closing Date by the Borrower and/or any of its Domestic Subsidiaries,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent deems
necessary or advisable in order
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to grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in the Capital Stock of such new
Foreign Subsidiary which is owned by the Borrower or any of its Domestic
Subsidiaries (provided that in no event shall shares of Capital Stock of such
new Foreign Subsidiary having more than 65% of the aggregate voting power of all
such total outstanding Capital Stock of any such new Foreign Subsidiary be
required to be so pledged), (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Domestic Subsidiary, as the case may be, and take such other
action as may be necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Lien of the Administrative Agent thereon, and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
6.10 SURVEYS FOR NEW MORTGAGED PROPERTIES. As soon as practicable,
but no later than 30 days following the Closing Date, the Borrower shall provide
the Administrative Agent and the title insurance company issuing the policy
referred to in clause (i) of Section 5.1(m) (the "TITLE INSURANCE COMPANY") maps
or plats of an as-built survey of the sites of the New Mortgaged Properties
certified to the Administrative Agent and the Title Insurance Company in a
manner satisfactory to them issued by an independent professional licensed land
surveyor satisfactory to the Administrative Agent and the Title Insurance
Company, which maps or plats and the surveys on which they are based shall be
made in accordance with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Land Title Association
and the American Congress on Surveying and Mapping in 1992, and, without
limiting the generality of the foregoing, there shall be surveyed and shown on
such maps, plats or surveys the following: (A) the locations on such sites of
all the buildings, structures and other improvements and the established
building setback lines; (B) the lines of streets abutting the sites and width
thereof; (C) all access and other easements appurtenant to the sites; (D) all
roadways, paths, driveways, easements, encroachments and overhanging projections
and similar encumbrances affecting the site, whether recorded, apparent from a
physical inspection of the sites or otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the building structures and
improvements on the sites; (F) if the site is described as being on a filed map,
a legend relating the survey to said map; and (G) the flood zone designations,
if any, in which the New Mortgaged Properties are located.
Section 7. NEGATIVE COVENANTS. The Borrower hereby agrees that, from
and after the Closing Date and so long as the Revolving Credit Commitments
remain in
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effect, and thereafter until payment in full of the Loans, all Reimbursement
Obligations and any other amount then due and owing to any Lender or the
Administrative Agent hereunder and under any Note and termination or expiration
of all Letters of Credit, the Borrower shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly:
7.1 FINANCIAL CONDITION COVENANTS. (a) CONSOLIDATED LEVERAGE RATIO.
Permit the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter set
forth below to exceed the ratio set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
1 - 4 5.5
5 - 8 5.0
9 - 12 4.5
13 - 16 4.0
17 - 20 3.5
21 - 22 3.0
(b) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter set forth below to be
less than the ratio set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
1 - 4 1.80
5 - 8 2.00
9 - 12 2.20
13 - 16 2.50
17 - 20 2.75
21 - 22 3.00
(c) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set forth below
to be less than the ratio set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
1 - 4 1.05
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5 - 8 1.05
9 - 12 1.05
13 - 16 1.10
17 - 20 1.10
21 - 22 1.10
7.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) (i) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary Guarantor to the Borrower or any other Subsidiary or of any
Foreign Subsidiary to the Borrower or any Subsidiary Guarantor or of any
Excluded Foreign Subsidiary to any other Excluded Foreign Subsidiary and
(ii) Indebtedness of the Borrower or any Subsidiary Guarantor to any
Excluded Subsidiary in an aggregate amount incurred subsequent to the
Original Closing Date not to exceed $3,000,000;
(c) Indebtedness incurred to finance the acquisition of fixed or
capital assets that are secured by Liens permitted by Section 7.3(g) in an
aggregate principal amount not to exceed $5,000,000 at any one time
outstanding;
(d) Capital Lease Obligations in an aggregate principal amount not to
exceed $5,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(e) and any refinancings, refundings, renewals or extensions
thereof (without any increase in the principal amount thereof or any
shortening of the maturity of any principal amount thereof, except by an
amount equal to the premium or other amounts paid, and fees and expenses
incurred, in connection with such refinancing, refunding, renewal or
extension), PROVIDED that any refinancing of the Existing Notes must be
effected with the proceeds of Indebtedness meeting the requirements of
Section 7.2(i);
(f) guarantees made in the ordinary course of business by the
Borrower or any of its Subsidiaries of obligations of any Wholly Owned
Subsidiary Guarantor;
(g) the Senior Subordinated Notes and the Guarantee Obligations of
the Subsidiary Guarantors with respect to the Senior Subordinated Notes;
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(h) the Senior Preferred Stock and Subordinated Exchange Debentures
and the Guarantee Obligations of the Subsidiary Guarantors with respect to
the Subordinated Exchange Debentures;
(i) subordinated and/or senior unsecured Indebtedness of the Borrower
in an aggregate principal amount issued subsequent to the Original Closing
Date not to exceed $100,000,000 (except by an amount equal to the premium
or other amounts paid, and fees and expenses incurred, in connection with
such refinancing, refunding, renewal or extension) all the terms and
conditions of which are reasonably satisfactory to the Required Lenders,
as evidenced by their prior written approval thereof, and the Net Cash
Proceeds of which shall be used to refinance the Existing Notes;
(j) Indebtedness of the Borrower and any of its Subsidiaries incurred
to finance or refinance the purchase price of, or Indebtedness of the
Borrower and any of its Subsidiaries assumed in connection with, any
acquisition permitted pursuant to this Agreement, PROVIDED that (i) such
Indebtedness is incurred prior to, substantially simultaneously with or
within six months after such acquisition or in connection with the
refinancing thereof, (ii) such Indebtedness shall have terms and
conditions reasonably satisfactory to the Administrative Agent and shall
not exceed 75% of the purchase price of such acquisition (including any
Indebtedness assumed in connection with such acquisition), (iii)
immediately after giving effect to such acquisition no Default or Event of
Default shall have occurred and be continuing and (iv) the aggregate
amount of all Indebtedness incurred pursuant to this paragraph shall not
exceed $7,500,000; and PROVIDED FURTHER, that approximately $1,000,000 of
outstanding debt of Rotec shall be permitted to remain outstanding
following the closing of the Rotec Acquisition pursuant to this Section
7.2(j) but shall be disregarded in any calculation of whether the
$7,500,000 limitation set forth above in this Section 7.2(j) shall have
been exceeded;
(k) to the extent that any Indebtedness may be incurred or arise
thereunder, Indebtedness of the Borrower and its Subsidiaries under
Permitted Hedging Arrangements;
(l) Indebtedness of Borrower or any of its Subsidiaries incurred to
finance insurance premiums in the ordinary course of business;
(m) Indebtedness arising from the honoring of a check, draft or
similar instrument against insufficient funds, PROVIDED that such
Indebtedness is extinguished within two Business Days of its incurrence;
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(n) Indebtedness consisting of subordinated promissory notes issued
by the Borrower to repurchase shares of the Borrower's common stock from
directors, officers or employees of the Borrower and its Subsidiaries in
circumstances in which the payment of cash dividends by the Borrower for
the purposes of funding such repurchase would not be permitted under
Section 7.6(b), PROVIDED that all the terms and conditions of such
promissory notes (including, without limitation, subordination terms) are
consistent with the terms set forth in Section 4(b) of the Stockholders
Agreement (as is in effect on the date hereof, without giving effect to
any amendments, supplements or other modifications thereto) and such
promissory notes include provisions prohibiting the payment thereof when
any Default or Event of Default shall have occurred and be continuing or
would result therefrom and do not include any cross-default provisions;
(o) Indebtedness consisting of borrowings by Foreign Subsidiaries,
PROVIDED that the aggregate principal amount of such Indebtedness that is
outstanding at any time, when added to the aggregate amount of
Indebtedness of Foreign Subsidiaries permitted pursuant to Section 7.2(e)
that is then outstanding and the aggregate amount of receivables sold by
the Borrower and its Subsidiaries that are described in the proviso to
Section 7.5(i) and Section 7.5(j) that are then outstanding, shall not
exceed $15,000,000;
(p) Guarantee Obligations for performance, appeal, judgment, replevin
and similar bonds and suretyship arrangements, all in the ordinary course
of business;
(q) Reimbursement Obligations in respect of the Letters of Credit;
(r) Guarantee Obligations in respect of third-party loans and
advances to officers or employees of the Borrower or any of its
Subsidiaries (i) for travel and entertainment expenses incurred in the
ordinary course of business, (ii) for relocation expenses incurred in the
ordinary course of business, or (iii) for other purposes in an aggregate
amount (as to the Borrower and all its Subsidiaries), together with the
aggregate amount of all then outstanding investments permitted under
Section 7.8(h), of up to $500,000 outstanding at any time;
(s) obligations to insurers required in connection with worker's
compensation and other insurance coverage incurred in the ordinary course
of business;
(t) guarantees made in the ordinary course of its business by the
Borrower or any of its Subsidiaries of obligations of the Borrower or any
of its Subsidiaries, which obligations are otherwise permitted under this
Agreement;
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(u) Guarantee Obligations in connection with sales or other
dispositions permitted under Section 7.5, including indemnification
obligations with respect to leases, and guarantees of collectability in
respect of accounts receivable or notes receivable for up to face value;
(v) Guarantee Obligations in respect of Indebtedness of a Person in
connection with a joint venture or similar arrangement in respect to which
no other coinvestor or other Person has a greater legal or beneficial
ownership interest than the Borrower or any of its Subsidiaries, and as to
all of such Persons does not at any time exceed $1,000,000 in aggregate
principal amount; (w) Guarantee Obligations incurred pursuant to the
Guarantee and Collateral Agreement or otherwise in respect of Indebtedness
permitted by Section 7.2(a);
(x) guarantees by Subsidiaries of the Borrower of the Senior
Subordinated Notes, which guarantees are subordinated pursuant to terms
and conditions approved in writing by the Required Lenders;
(y) guarantees of Indebtedness of Foreign Subsidiaries permitted by
Section 7.2(o);
(z) Guarantee Obligations in respect of letters of credit issued for
the account of Foreign Subsidiaries, and guarantees thereof, PROVIDED that
the aggregate amount of such Guarantee Obligations, taken together with
the aggregate amount of other Indebtedness of Foreign Subsidiaries
outstanding pursuant to Section 7.2(o), shall not exceed the aggregate
amount of such Indebtedness permitted pursuant to such Section;
(aa) the Preference Stock;
(bb) any Earn-Out Payment or Purchase Price Adjustment pursuant to
Sections 2.3 and 2.4 of the Acquisition Agreement, respectively, and any
Purchase Price Adjustment pursuant to Sections 2.8, 2.9 and 4.4 of the
▇▇▇▇▇▇▇▇▇ Purchase Agreement and Section 3.3 of the AIP Agreement; and
(cc) Indebtedness not otherwise permitted by the preceding clauses of
this Section not exceeding $2,500,000 in aggregate principal amount at any
one time outstanding.
With respect to any Indebtedness denominated in a foreign currency, for purposes
of determining compliance with any Dollar-denominated restriction on such
Indebtedness
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under this Section, the amount of such Indebtedness shall be calculated monthly
based on the Spot Exchange Rate in effect at such time.
7.3 LIMITATION ON LIENS. Create, incur, assume or suffer to exist any
Lien upon any of its Property or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes not yet delinquent or the nonpayment of which in
the aggregate would not reasonably be expected to have a Material Adverse
Effect or which are being contested in good faith by appropriate
proceedings, PROVIDED that adequate reserves with respect to taxes being
so contested are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges, deposits or other Liens in connection with workers'
compensation, unemployment insurance, other social security benefits or
other insurance-related obligations (including, without limitation,
pledges or deposits securing liabilities to insurance carriers under
insurance or self-insurance arrangements);
(d) Liens to secure the performance of bids, trade contracts (other
than for borrowed money), leases, utility statutory obligations, surety
and appeal bonds, performance bonds, judgment and like bonds, replevin and
similar bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) zoning restrictions, easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of business and
minor imperfections of title which do not materially interfere with the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries taken as a whole;
(f) Liens on the assets or, in the case of floating Liens, types of
assets in existence on the date hereof listed on Schedule 7.3(f), securing
Indebtedness permitted by Section 7.2(e), PROVIDED that no such Lien is
spread to cover any additional Property after the Closing Date and that
the amount of Indebtedness secured thereby is not increased except as
permitted by Section 7.2(e);
(g) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred pursuant to Sections 7.2(c) and (d) or Section 7.2(j),
PROVIDED that (i) such
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Liens shall be created substantially simultaneously with the acquisition
financed with the Indebtedness secured thereby or, in the case of any
acquisition of fixed or capital assets, within six months after such
acquisition and (ii) such Liens do not at any time encumber any Property
other than the Property financed by such Indebtedness;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by
the Borrower or any other Subsidiary in the ordinary course of its
business and covering only the assets so leased;
(j) Liens arising by reason of any judgment, decree or order of any
court or other Governmental Authority, if appropriate legal proceedings
which may have been duly initiated for the review of such judgment, decree
or order, are being diligently prosecuted and shall not have been finally
terminated or the period within which such proceedings may be initiated
shall not have expired;
(k) Liens existing on assets or properties at the time of the
acquisition thereof by the Borrower or any of its Subsidiaries which do
not materially interfere with the use, occupancy, operation and
maintenance of structures existing on the property subject thereto or
extend to or cover any assets or properties of the Borrower or such
Subsidiary other than the assets or property being acquired;
(l) any encumbrance or restriction (including, without limitation,
put and call agreements) with respect to the Capital Stock of any joint
venture or similar arrangement pursuant to the joint venture or similar
agreement with respect to such joint venture or similar arrangement,
PROVIDED that no such encumbrance or restriction affects in any way the
ability of the Borrower or any of its Subsidiaries to comply with Section
6.9;
(m) Liens on Intellectual Property (as defined in Section 4.9) to the
extent such Liens arise from the granting of licenses to use such
Intellectual Property to any Person in the ordinary course of business of
the Borrower or any of its Subsidiaries or result from the joint ownership
of such Intellectual Property;
(n) Liens on Property of any Foreign Subsidiary securing Indebtedness
of such Subsidiary permitted by Section 7.2(o) and recourse obligations of
such Foreign Subsidiary in respect of sales of Excluded Foreign Accounts
permitted by the proviso to Section 7.5(i) and by Section 7.5(j), PROVIDED
that the aggregate amount of Indebtedness and obligations secured by Liens
described in this paragraph shall at no time exceed $12,000,000;
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(o) Liens arising from leases or subleases granted to others in the
ordinary course of business not interfering in any material respect with
the business or operations of the Borrower or any of its Subsidiaries; and
(p) Liens on Property of any of the ▇▇▇▇ Companies that is a Foreign
Subsidiary securing foreign payroll fundings, special foreign commercial
considerations or customs letter of credit issued on behalf of any of the
▇▇▇▇ Companies.
7.4 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business except:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (PROVIDED that the Borrower shall be the continuing
or surviving corporation) or with or into one or more Subsidiary
Guarantors (PROVIDED that a Subsidiary Guarantor shall be the continuing
or surviving corporation);
(b) any Foreign Subsidiary of the Borrower may be merged or
consolidated with or into one or more Foreign Subsidiaries;
(c) any Subsidiary of the Borrower may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any
Subsidiary Guarantor; and
(d) as expressly permitted by Section 7.5.
7.5 LIMITATION ON SALES OF ASSETS. Dispose of any of its Property or
business (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete or worn out or surplus property,
whether or not now owned or hereafter acquired, in the ordinary course of
business;
(b) the Disposition of any Property (including inventory) in the
ordinary course of business;
(c) Dispositions permitted by Section 7.4(c);
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Wholly Owned Subsidiary Guarantor;
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(e) the sale of other assets having a fair market value not to exceed
$2,500,000 in the aggregate for any fiscal year of the Borrower;
(f) any Asset Sale or Recovery Event, PROVIDED, that the requirements
of Section 2.12(b) are complied with in connection therewith;
(g) as permitted by Section 7.4(c) or pursuant to Permitted Sale and
Leaseback Transactions;
(h) the abandonment or other Disposition of patents, trademarks or
other intellectual property that are, in the reasonable judgment of the
Borrower, no longer economically practicable to maintain or useful in the
conduct of the business of the Borrower and its Subsidiaries taken as a
whole;
(i) the sale or discount without recourse of accounts receivable or
notes receivable arising in the ordinary course of business, or the
conversion or exchange of accounts receivable into or for notes
receivable, in any case described in this paragraph in connection with the
compromise or collection thereof PROVIDED that, in the case of any Foreign
Subsidiary of the Borrower, any such sale or discount may be with recourse
if such sale or discount is consistent with customer practice in such
Foreign Subsidiary's country of business and the aggregate amount of any
such recourse shall be included in the determination of such Foreign
Subsidiary's Indebtedness for purposes of Section 7.2(o); and
(j) the sale or discount by any Foreign Subsidiary with or without
recourse of accounts receivable or notes receivable arising in the
ordinary course of business, PROVIDED that the aggregate amount of such
receivables so sold that are outstanding at any time shall not exceed
$3,000,000.
7.6 LIMITATION ON DIVIDENDS. Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or any
Subsidiary or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or make any other distribution (other than
distributions payable solely in common stock of the Borrower or options,
warranties or other rights to purchase common stock of the Borrower) in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary (collectively, "RESTRICTED
PAYMENTS"), except that:
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(a) any Subsidiary may make Restricted Payments to the Borrower or
any Wholly Owned Subsidiary Guarantor;
(b) the Borrower may repurchase shares of its common stock or rights,
options or units in respect thereof from directors, officers or employees
of the Borrower and its Subsidiaries upon their death or other termination
of employment with the Borrower (but not from Greenwich IV or any member
of the GSCP Group), PROVIDED that the aggregate amount paid in cash in
connection with such repurchases subsequent to the Original Closing Date
shall not exceed $2,500,000;
(c) the Borrower may make payments to Holdings pursuant to the Tax
Sharing Agreement; and
(d) the Borrower may make any payment permitted under Section 7.10(c)
or (d).
7.7 LIMITATION ON CAPITAL EXPENDITURES. Make or commit to make (by
way of the acquisition of securities of a Person or otherwise) any Capital
Expenditure, except (a) Capital Expenditures of the Borrower and its
Subsidiaries not exceeding $15,000,000 in any fiscal year; PROVIDED, that (i) up
to $5,000,000 of any such amount referred to above, if not so expended in the
fiscal year for which it is permitted, may be carried over for expenditure in
the next succeeding fiscal year and (ii) Capital Expenditures made pursuant to
this clause (a) during any fiscal year shall be deemed made, FIRST, in respect
of amounts carried over from the prior fiscal year pursuant to subclause (i)
above and, SECOND, in respect of amounts permitted for such fiscal year as
provided above and (b) Capital Expenditures made with the proceeds of any
Reinvestment Amount.
7.8 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any advance,
loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting all or a material part of a business
unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in cash and Cash Equivalents;
(c) obligations permitted by Section 7.2;
(d) the Acquisition and the ▇▇▇▇▇▇▇▇▇ TPO Acquisition;
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(e) investments made by the Borrower or any of its Subsidiaries with
the proceeds of any Reinvestment Amount;
(f) investments by the Borrower or any of its Subsidiaries in the
Borrower or any Person that, prior to such investment, is a Wholly Owned
Subsidiary Guarantor;
(g) investments in notes receivable and other instruments and
securities obtained in connection with transactions permitted by Section
7.5(g);
(h) loans and advances to officers, directors or employees of the
Borrower or any of its Subsidiaries (i) in the ordinary course of business
for travel and entertainment expenses, (ii) in an amount less than $75,000
(or an equivalent amount in foreign currency) in the aggregate, (iii)
existing on the Closing Date and described in Schedule 7.8(h), (iv) made
after the Closing Date for relocation expenses in the ordinary course of
business, (v) made for other purposes in an aggregate amount (as to the
Borrower and all its Subsidiaries) of up to $500,000 outstanding at any
time or (vi) relating to indemnification or reimbursement of any officers,
directors or employees in respect of liabilities relating to their serving
in any such capacity or as otherwise specified in Section 7.10;
(i) investments existing on the date hereof and described in Schedule
7.8(i), setting forth the respective amounts of such investments as of a
recent date;
(j) investments of the Borrower and its Subsidiaries under Permitted
Hedging Arrangements;
(k) investments in the nature of pledges or deposits with respect to
leases or utilities provided to third parties in the ordinary course of
business or otherwise described in Section 7.3(c), (d) or (i);
(l) investments representing non-cash consideration received by the
Borrower or any of its Subsidiaries in connection with any Asset Sale,
PROVIDED that in the case of any Asset Sale permitted under Section
7.5(f), such non-cash consideration constitutes not more than 25% of the
aggregate consideration received in connection with such Asset Sale and
any such non-cash consideration received by the Borrower or any of its
Domestic Subsidiaries is pledged to the Administrative Agent for the
benefit of the Lenders pursuant to the Security Documents;
(m) investments representing evidences of Indebtedness, securities or
other property received from another Person by the Borrower or any of its
Subsidiaries in connection with any bankruptcy proceeding or other
reorganization of such other
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Person or as a result of foreclosure, perfection or enforcement of any
Lien or exchange for evidences of Indebtedness, securities or other
property of such other Person held by the Borrower or any of its
Subsidiaries; PROVIDED that any such securities or other property received
by the Borrower or any of its Domestic Subsidiaries is pledged to the
Administrative Agent for the benefit of the Lenders pursuant to the
Security Documents;
(n) investments by the Borrower or any of its Subsidiaries in a
Person in connection with a joint venture or similar arrangement in
respect of which no other co-investor or other Person has a greater legal
or beneficial ownership interest than the Borrower or such Subsidiary in
an aggregate amount not to exceed at any time an amount equal to
$5,500,000;
(o) so long as (x) no Default or Event of Default has occurred and is
continuing at the time of such acquisition or would occur after giving
effect to such acquisition and (y) the Borrower would be in pro forma
compliance with the financial covenants set forth in Sections 7.1(a), (b)
and (c), as of the date such acquisition is consummated after giving
effect to such acquisition, acquisitions of the business or assets of, or
stock or other evidences of beneficial ownership of, any Person engaged in
a business of the same general type as those in which the Borrower and its
Subsidiaries are engaged on the Closing Date or which are substantially
related thereto, so long as the aggregate consideration paid by the
Borrower and its Subsidiaries in connection with all such acquisitions
made pursuant to this paragraph (o) since the Original Closing Date (other
than the Rotec Acquisition) does not exceed at any time an amount equal to
$10,000,000; and
(p) any commitment by Day International (UK) Limited and/or
Rotec-Hulsensysteme GmbH to make a loan to ▇▇▇▇▇▇▇▇▇ Textile Products GmbH
pursuant to the Deed, dated as of July 29, 1999, between Day International
(UK) Limited, Rotec-Hulsensysteme GmbH and ▇▇▇▇▇▇▇▇▇ Textile Products
GmbH, provided that such loan, if and when made, would be permitted by
Section 7.2 hereof.
7.9 LIMITATION ON OPTIONAL PAYMENTS AND MODIFICATIONS OF DEBT
INSTRUMENTS, ETC. (a) Make or offer to make any payment, prepayment, repurchase
or redemption of or otherwise defease or segregate funds with respect to the
Existing Notes (except with the proceeds of subordinated Indebtedness incurred
pursuant to Section 7.2(i)), the Senior Subordinated Notes, the Subordinated
Exchange Debentures, Senior Preferred Stock or the Preference Stock (other than
scheduled interest payments required to be made in cash) or the promissory notes
described in Section 7.2(n), (b) amend, modify, waive or otherwise change, or
consent or agree to any amendment, modification, waiver or other
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change to, any of the terms of the Existing Notes, the Senior Subordinated
Notes, the Subordinated Exchange Debentures, the Senior Preferred Stock or the
promissory notes described in Section 7.2(n) (other than any such amendment,
modification, waiver or other change which (i) would extend the maturity or
reduce the amount of any payment of principal thereof or which would reduce the
rate or extend the date for payment of interest thereon and (ii) does not
involve the payment of a consent fee), (c) designate any Indebtedness (other
than obligations of the Loan Parties pursuant to the Loan Documents) as
"Designated Senior Indebtedness" (or any similar term) for the purposes of the
Senior Subordinated Note Indenture or the Exchange Debenture Indenture or (d)
except for the amendment of the Borrower's certificate of incorporation and the
designation of the Preference Stock pursuant to the Certificate of Designation
with respect thereto, in each case, as contemplated by the Preference Stock
Purchase Agreement, amend its certificate of incorporation (including the
Certificate of Designation with respect to the Preference Stock) in any manner
determined by the Administrative Agent to be adverse to the Lenders without the
prior written consent of the Required Lenders.
7.10 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Wholly Owned Subsidiary Guarantor) unless such transaction is
(a) otherwise permitted under this Agreement, (b) upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm's length transaction with a Person which is
not an Affiliate; PROVIDED that nothing contained in this Section 7.10 shall be
deemed to prohibit:
(a) the payment of transaction expenses in connection with this
Agreement, the Acquisition and the ▇▇▇▇▇▇▇▇▇ TPO Acquisition;
(b) the Borrower or any of its Subsidiaries from entering into or
performing an agreement with the Sponsors for the rendering of management
consulting or financial advisory services for compensation not to exceed
in the aggregate $1,000,000 per year plus reasonable out-of-pocket
expenses, PROVIDED that at any time when a Default or an Event of Default
has occurred and is continuing, the Borrower and its Subsidiaries may not
make any payments to the Sponsors under any such agreement and such
payments may accrue to the Sponsors and may be paid in full after such
Default or Event of Default has been cured or waived, PROVIDED FURTHER
that at any time when the Borrower and its Subsidiaries are not permitted
to make payments to the Sponsors under any such agreements, the Sponsors
may elect to receive Capital Stock of the Borrower in lieu of such
payments;
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(c) the Borrower or any of its Subsidiaries from entering into,
making payments pursuant to and otherwise performing an indemnification
and contribution agreement in favor of any person who is or becomes a
director, officer, agent or employee of the Borrower or any of its
Subsidiaries, in respect of liabilities (A) arising under the Securities
Act, the Exchange Act and any other applicable securities laws or
otherwise, in connection with any offering of securities by the Borrower
or any of its Subsidiaries, (B) incurred to third parties for any action
or failure to act of the Borrower or any of its Subsidiaries, predecessors
or successors, (C) arising out of the performance by the Sponsors of
management consulting or financial advisory services provided to the
Borrower or any of its Subsidiaries, (D) arising out of the fact that any
indemnitee was or is a director, officer, agent or employee of the
Borrower or any of its Subsidiaries, or is or was serving at the request
of any such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or enterprise or
(E) to the fullest extent permitted by Delaware or other applicable state
law, arising out of any breach or alleged breach by such indemnitee of his
or her fiduciary duty as a director or officer of the Borrower or any of
its Subsidiaries;
(d) the Borrower or any of its Subsidiaries from performing any
agreements or commitments with or to any Affiliate existing on the date
hereof and described on Schedule 7.10;
(e) any transaction permitted under Sections 7.3(l), 7.4, 7.6, 7.8(h)
or 7.8(p), or any transaction with a Wholly Owned Subsidiary of the
Borrower;
(f) the Borrower or any of its Subsidiaries from performing its
obligations under the Tax Sharing Agreement; or
(g) the issuance of the Preference Stock.
For purposes of this Section 7.10, (A) any transaction with any
Affiliate shall be deemed to have satisfied the standard set forth in clause (b)
of the first sentence hereof if (i) such transaction is approved by a majority
of the Disinterested Directors of the board of directors of the Borrower or such
Subsidiary, or (ii) in the event that at the time of any such transaction, there
are no Disinterested Directors serving on the board of directors of the Borrower
or such Subsidiary, such transactions shall be approved by a nationally
recognized expert with expertise in appraising the terms and conditions of the
type of transaction for which approval is required, and (B) "DISINTERESTED
DIRECTOR" shall mean, with respect to any Person and transaction, a member of
the board of directors of such Person who does not have any material direct or
indirect financial interest in or with respect to such transaction.
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7.11 LIMITATION ON SALES AND LEASEBACKS. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary unless such arrangement
is entered into in connection with the financing of the acquisition of such
property through the proceeds of a Capital Lease Obligation permitted by Section
7.2(d) and the sale or transfer of such property occurs immediately following
the acquisition thereof by the Borrower or such Subsidiary (a "PERMITTED SALE
AND LEASEBACK TRANSACTION").
7.12 LIMITATION ON CHANGES IN FISCAL PERIODS. Permit the fiscal year
of the Borrower to end on a day other than December 31 or change the Borrower's
method of determining fiscal quarters.
7.13 LIMITATION ON NEGATIVE PLEDGE CLAUSES. Enter into or suffer to
exist or become effective any agreement which prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any Guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby) or (c) any agreement relating to any Indebtedness of a
Foreign Subsidiary permitted by Section 7.2(o) or otherwise permitted under this
Agreement (in which case, any prohibition or limitation shall only be effective
against the assets of such Foreign Subsidiary and its Subsidiaries).
7.14 LIMITATIONS ON CURRENCY AND COMMODITY HEDGING TRANSACTIONS.
Enter into, purchase or otherwise acquire agreement or arrangements relating to
currency, commodity or other hedging except, to the extent and only to the
extent that, such agreements or arrangements are entered into, purchased or
otherwise acquired in the ordinary course of business of the Borrower or any of
its Subsidiaries with reputable financial institutions and not for purposes of
speculation (any such agreement permitted by this Section, a "PERMITTED HEDGING
ARRANGEMENT").
7.15 LIMITATION ON LINES OF BUSINESS. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement or which
are reasonably related thereto.
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7.16 LIMITATION ON AMENDMENTS TO ACQUISITION DOCUMENTS. Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) in any
material respect the terms and conditions of (a) the Original Acquisition
Agreement or any other document delivered by the Sellers (as defined in the
Original Acquisition Agreement) or any of their affiliates in connection
therewith, (b) the Rotec Acquisition Agreement or any other document delivered
by Rotec in connection therewith or (c) the Acquisition Agreement or any other
document delivered by the ▇▇▇▇ Companies in connection therewith, in each case,
such that after giving effect thereto such terms and conditions shall be
materially less favorable to the interests of the Loan Parties or the Lenders
with respect thereto.
Section 8. EVENTS OF DEFAULT. If any of the following events shall
occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or which is contained in any
certificate furnished by it at any time under this Agreement or any such
other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
(c) (i) Any Loan Party shall default in the observance or performance
of any agreement contained in clause (i) or (ii) of Section 6.4(a) (with
respect to the Borrower only), Section 6.7(a), Section 7 or Section 5.3.2
of the Guarantee and Collateral Agreement and, in the case of a default in
the observance or performance of its obligations under Section 6.7(a)
hereof, such default shall have continued unremedied for a period of two
days after a Responsible Officer of the Borrower shall have discovered or
should have discovered such default or (ii) an "Event of Default" under
and as defined in any Mortgage shall have occurred and be continuing; or
(d) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section),
and such default shall continue unremedied for a period ending on the
earlier of (i) the date 30 days after a
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Responsible Officer of the Borrower shall have discovered or should have
discovered such default (ii) the date 15 days after written notice of such
default has been given to the Borrower by the Administrative Agent or the
Required Lenders; or
(e) The Borrower or any of its Subsidiaries shall (i) default in (x)
making any payment of any principal of any Indebtedness (including,
without limitation, any Guarantee Obligation, but excluding the Loans) on
the scheduled or original due date with respect thereto or (y) making any
payment of any interest on any such Indebtedness, beyond the period of
grace (not to exceed 31 days), if any, provided in the instrument or
agreement under which such Indebtedness was created; or (ii) default in
the observance or performance of any other agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become
payable; PROVIDED, that a default, event or condition described in clause
(i) or (ii) of this paragraph (e) shall not at any time constitute an
Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i) and (ii) of this paragraph
(e) shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate $2,500,000;
or
(f) (i) Any Loan Party shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, any Loan Party shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against any Loan Party any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against any Loan Party any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the
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entry thereof; or (iv) any Loan Party shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) any Loan
Party shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise
on the assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could, in the sole judgment of
the Required Lenders, reasonably be expected to have a Material Adverse
Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance as to which the relevant insurance
company has acknowledged coverage) of $2,500,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason, to be
in full force and effect (other than pursuant to the terms hereof or
thereof), or any Loan Party shall so assert in writing, or any Lien
created by any of the Security Documents shall cease to be enforceable and
of the same effect and priority purported to be created thereby with
respect to any significant portion of the Collateral (other than in
connection with any termination of such Lien in respect of any Collateral
as permitted hereby or by any Security Document), and such failure of such
Lien to be
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perfected and enforceable with such priority shall have continued
unremedied for a period of 20 days; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and
effect (other than pursuant to the terms hereof or thereof) or any Loan
Party shall so assert in writing; or
(k) A Change of Control shall have occurred; or
(l) The Senior Subordinated Notes, the Senior Preferred Stock, the
Subordinated Exchange Debentures, the Existing Notes or the guarantees
thereof shall at any time after the date created cease, for any reason, to
be validly subordinated to the Obligations or the obligations of the
Subsidiary Guarantors under the Guarantee and Collateral Agreement, as the
case may be, as provided in the Senior Subordinated Note Indenture,
Exchange Debenture Indenture or the Existing Indenture, or any Loan Party,
any Affiliate of any Loan Party, the trustee in respect of the Senior
Subordinated Notes, the Subordinated Exchange Debentures or the Existing
Notes, as the case may be, or the holders of at least 25% in aggregate
principal amount of the Senior Subordinated Notes, the Senior Preferred
Stock, the Subordinated Exchange Debentures or the Existing Notes, as the
case may be, shall so assert in writing;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and any Notes shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving
Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including,
without limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
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documents required thereunder) to be due and payable forthwith, whereupon the
same shall immediately become due and payable. With respect to all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
Section 9. THE ADMINISTRATIVE AGENT.
9.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be
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(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
9.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the Loan
Parties), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified as
between itself and the Lenders in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
9.5 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder
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unless it has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders); PROVIDED that
unless and until the Administrative Agent shall have received such directions,
the Administrative 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 interests of the Lenders.
9.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates. Each Lender represents to each other party hereto that it is a bank,
savings and loan association or other similar savings institution, insurance
company, investment fund or company or other financial institution which makes
or acquires commercial loans in the ordinary course of its business, that it is
participating hereunder as a Lender for its account and for such commercial
purposes, and that it has the knowledge and experience to be and is
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capable of evaluating the merits and risks of being a Lender hereunder. Each
Lender acknowledges and agrees to comply with the provisions of Section 10.6
applicable to the Lenders hereunder.
9.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section 9.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; PROVIDED that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements which are found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this Section 9.7 shall
survive the payment of the Loans and all other amounts payable hereunder.
9.8 AGENT IN ITS INDIVIDUAL CAPACITY. The Administrative Agent and
its affiliates may make loans to, accept deposits from and generally engage in
any kind of business with any Loan Party as though the Administrative Agent was
not the Administrative Agent. With respect to its Loans made or renewed by it
and with respect to any Letter of Credit issued or participated in by it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
9.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent (i) may
resign as Administrative Agent or (ii) shall resign if such resignation is
requested by the Required Lenders, in either case of (i) or (ii) by giving not
less than 30 days' written notice to the Lenders and the Borrower. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the
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Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent (which shall be a bank) shall (unless an Event of
Default under Section 8(a) or Section 8(f) with respect to the Borrower shall
have occurred and be continuing) be subject to approval by the Borrower (which
approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After the Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
9.10 AUTHORIZATION TO RELEASE LIENS. The Administrative Agent is
hereby irrevocably authorized by each of the Lenders to release any Lien
covering any Property of the Borrower or any of its Subsidiaries that is the
subject of a Disposition which is permitted by this Agreement or which has been
consented to in accordance with Section 10.1.
9.11 THE ARRANGER. The Arranger, in its capacity as such, shall have
no duties or responsibilities, and shall incur no liability, under this
Agreement and the other Loan Documents.
9.12 RELEASE OF LIENS ON EXCLUDED FOREIGN ACCOUNTS. In connection
with the incurrence by the Borrower or any of its Subsidiaries of Indebtedness
permitted by Section 7.2, the Borrower may deliver to the Administrative Agent,
a written request for release identifying the relevant Excluded Foreign Accounts
and the terms of such Indebtedness in reasonable detail together with a
certification by the Borrower stating that such transaction is in compliance
with this Agreement. The Administrative Agent shall execute and deliver to the
Borrower (at the sole cost and expense of the Borrower) all releases or other
documents (including without limitation UCC termination statements) necessary or
reasonably desirable for the release or (to the extent acceptable to the holder
of such Indebtedness) subordination of the Liens created by the Guarantee and
Collateral Agreement on such Excluded Foreign Accounts as the Borrower may
reasonably request.
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Each of the Lenders hereby authorizes the Administrative Agent to deliver such
releases or other documents.
Section 10. MISCELLANEOUS.
10.1 AMENDMENTS AND WAIVERS. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Administrative Agent and
each Loan Party party to the relevant Loan Document may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights or obligations
of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders, or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default
and its consequences; PROVIDED, HOWEVER, that no such waiver and no such
amendment, supplement or modification shall (i) forgive the principal amount or
extend the final scheduled date of maturity of any Loan, extend the scheduled
date of any amortization payment in respect of any Term Loan, reduce the stated
rate of any interest, fee or letter of credit commission payable hereunder or
extend the scheduled date of any payment thereof, change the method or procedure
for determining the Borrowing Base, or increase the amount or extend the
expiration date of any Lender's Revolving Credit Commitment, in each case
without the consent of each Lender directly affected thereby; (ii) amend, modify
or waive any provision of this Section or reduce any percentage specified in the
definition of Required Lenders, consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents, release all or substantially all of the Collateral, release all
or substantially all of the Subsidiary Guarantors from their obligations under
the Guarantee and Collateral Agreement, amend or modify the definition of
"Borrowing Base", in each case without the written consent of all Lenders; (iii)
amend, modify or waive any condition precedent to any extension of credit under
the Revolving Credit Facility set forth in Section 5.2 (including, without
limitation, in connection with any waiver of an existing Default or Event of
Default) without the written consent of the Majority Revolving Credit Facility
Lenders; (iv) reduce the percentage specified in the definition of Majority
Facility Lenders as applicable to any Facility without the written consent of
all Lenders under such Facility; (v) amend, modify or waive any provision of
Section 9 without the written consent of the Administrative Agent; (vi) amend,
modify or waive any provision of Section 2.6 or 2.7 without the written consent
of the Swing Line Lender; or (vii) amend, modify or waive any provision of
Section 3 without the written consent of the Issuing
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Lender. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Loan Parties,
the Lenders, the Administrative Agent and all future holders of the Loans. In
the case of any waiver, the Loan Parties, the Lenders and the Administrative
Agent shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
10.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: Day International Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent: Societe Generale
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any
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other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
10.5 PAYMENT OF EXPENSES. The Borrower agrees (a) to pay or reimburse
the Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including, without limitation, the
fees and disbursements of counsel to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent and its respective officers, directors, employees,
affiliates, agents and controlling persons (each, an "indemnitee") harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the use of proceeds of the Loans or the violation of, noncompliance
with or liability under, any Environmental Law applicable to the operations of
the Borrower any of its Subsidiaries or any of the Properties (all the foregoing
in this clause (d), collectively, the "indemnified liabilities"), PROVIDED, that
(except as expressly provided in Section 2.10 and Section 2.11) the Borrower
shall have no obligation to any indemnitee with respect to taxes and PROVIDED
FURTHER that the Borrower shall have no obligation hereunder to any indemnitee
with respect to indemnified liabilities to the extent such indemnified
liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from (i) the gross negligence or willful
misconduct of such indemnitee or any of its affiliates, officers, directors,
employees, advisors, agents or controlling persons,
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or (ii) claims made or legal proceedings commenced against the Administrative
Agent or any such Lender by any securityholder or creditor thereof arising out
of and based upon rights afforded any such securityholder or creditor solely in
its capacity as such. Without limiting the foregoing, and to the extent
permitted by applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waive and agree to cause its Subsidiaries
to so waive, all rights for contribution or any other rights of recovery with
respect to all claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature, under or related to
Environmental Laws, that any of them might have by statute or otherwise against
any indemnitee. The agreements in this Section shall survive repayment of the
Loans and all other amounts payable hereunder.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement (other than in
connection with a merger or consolidation permitted by Section 7.4) without the
prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "PARTICIPANT") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, or postpone the date of the final maturity of the Loans, in
each case to the extent subject to such participation. The Borrower agrees that
if amounts outstanding under this Agreement and the Loans are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of set-off in respect
of its
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participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, PROVIDED that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; PROVIDED that, in the case of Section 2.20, such Participant
shall have complied with the requirements of said Section and PROVIDED, FURTHER,
that no Participant shall be entitled to receive any greater amount pursuant to
any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "ASSIGNOR") may, in accordance with
applicable law, at any time and from time to time assign to any Lender or any
Affiliate thereof or, with the consent of the Borrower and the Administrative
Agent (which, in each case, shall not be unreasonably withheld or delayed)
(PROVIDED that no such consent need be obtained by Societe Generale for a period
of 180 days following the Closing Date), to an additional bank, financial
institution or other entity (an "ASSIGNEE") all or any part of its rights and
obligations under this Agreement pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit K, executed by such Assignee, such Assignor
and the Administrative Agent (and, where the consent of the Borrower is required
pursuant to the foregoing provisions, by the Borrower) and delivered to the
Administrative Agent for its acceptance and recording in the Register; PROVIDED
that no such assignment to an Assignee (other than any Lender or any affiliate
thereof) shall be in an aggregate principal amount of less than $5,000,000
(other than in the case of an assignment of all of a Lender's interests under
this Agreement), unless otherwise agreed by the Borrower and the Administrative
Agent. Any such assignment need not be ratable as among the Facilities. Upon
such execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment and/or Loans as set forth therein, and (y) the Assignor
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of an Assignor's rights and obligations
under this Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this Section, the consent of the Borrower shall
not be required for any assignment which occurs at any time when any Event of
Default shall have occurred and be continuing.
▇▇▇
▇▇▇
(▇) The Administrative Agent shall maintain at its address referred
to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and
a register (the "REGISTER") for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Loans owing to,
each Lender from time to time and any Notes evidencing such Loans. The entries
in the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as the owner of the Loan and any Note
evidencing such Loan recorded therein for all purposes of this Agreement. Any
assignment of any Loan whether or not evidenced by a Note shall be effective
only upon appropriate entries with respect thereto being made in the Register
(and each Note shall expressly so provide). Any assignment or transfer of all or
part of a Loan evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the designated Assignee and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "cancelled". 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.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof or a Person under common management with
such Lender, by the Borrower, the Administrative Agent and the Issuing Lender)
together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (except that no such registration and processing fee
shall be payable (y) in connection with an assignment by Societe Generale or (z)
in the case of an Assignee which is already a Lender or is an affiliate of a
Lender or a Person under common management with a Lender), the Administrative
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower. On or prior to such effective date, the Borrower,
at its own expense, upon request, shall execute and deliver to the
Administrative Agent (in exchange for the Revolving Credit Note and/or Term
Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note
and/or Term Notes, as the case may be, to the order of such Assignee in an
amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as
the case may be, assumed or acquired by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Revolving Credit
Commitment and/or Term Loans, as the case may be, upon request, a new Revolving
Credit Note and/or Term Notes, as the case may be, to the order of the assigning
Lender in an amount equal to the Revolving Credit Commitment and/or applicable
Term Loans,
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as the case may be, retained by it hereunder. Such new Notes shall be dated the
Closing Date and shall otherwise be in the form of the Note replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
10.7 ADJUSTMENTS; SET-OFF. (a) Except to the extent that this
Agreement provides for payments to be allocated to the Lenders under a
particular Facility, if any Lender (a "BENEFITTED LENDER") shall at any time
receive any payment of all or part of its Loans or the Reimbursement Obligations
owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(f), 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 or the Reimbursement
Obligations owing to such other Lender, 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 Loan and/or of the Reimbursement
Obligations owing to each such other Lender, 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.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, to the extent permitted by applicable
law, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise) to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
PROVIDED that, to the extent permitted by applicable law the failure to give
such notice shall not affect the validity of such set-off and application.
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10.8 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. Each party hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient forum and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower, the Administrative Agent, or
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the applicable Lender, as the case may be, at its address set forth in
Section 10.2 or at such other address of which the Administrative Agent,
any such Lender and the Borrower shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section 10.12 any punitive damages.
10.13 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.15 CONFIDENTIALITY. The Administrative Agent and each Lender
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; PROVIDED that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate of any Lender, (b) to
any Participant or Assignee (each, a "TRANSFEREE") or prospective Transferee
which agrees to comply with the provisions of this Section, (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of
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such Lender or its affiliates, (d) upon the request or demand of any
Governmental Authority having jurisdiction over the Administrative Agent or such
Lender, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) which has been publicly disclosed other than in breach
of this Section, (h) to the National Association of Insurance Commissioners or
any similar organization or any nationally recognized rating agency that
requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender, or (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
DAY INTERNATIONAL GROUP, INC.,
as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
114
121
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION,
as Arranger
By: /s/ ▇▇▇▇ ▇. Stock
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Name: ▇▇▇▇ ▇. Stock
Title: Director
SOCIETE GENERALE, NEW YORK BRANCH,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. Stock
--------------------------------
Name: ▇▇▇▇ ▇. Stock
Title: Director
BANK ONE, NA, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & Manager
NATIONAL CITY BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
115
122
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
116
123
SUMMIT BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
117
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Annex A
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PRICING GRID FOR REVOLVING CREDIT LOANS,
SWING LINE LOANS AND TERM LOANS
===========================================================================================================
Consolidated Leverage Ratio Applicable Margin Applicable Margin for Base Rate
for Eurodollar Loans Loans
-----------------------------------------------------------------------------------------------------------
greater than 4.00 to 1 2.75 1.75
-----------------------------------------------------------------------------------------------------------
less than or equal to 4.00 to 1 2.50 1.50
greater than 3.50 to 1
-----------------------------------------------------------------------------------------------------------
less than or equal to 3.50 to 1 2.25 1.25
greater than 3.00 to 1
-----------------------------------------------------------------------------------------------------------
less than or equal to 3.00 to 1 2.00 1.00
greater than 2.50 to 1
-----------------------------------------------------------------------------------------------------------
less than or equal to 2.50 to 1 1.75 0.75
===========================================================================================================
Changes in the Applicable Margin with respect to Term Loans resulting from
changes in the Consolidated Leverage Ratio shall become effective on the date
(the "ADJUSTMENT DATE") on which financial statements are delivered to the
Lenders pursuant to Section 6.1 (but in any event not later than the 45th day
after the end of each of the first three quarterly periods of each fiscal year
or the 90th day after the end of each fiscal year, as the case may be) and shall
remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed greater than 4.00 to 1. In addition, at all times while an
Event of Default shall have occurred and be continuing, the Consolidated
Leverage Ratio shall for the purposes of this definition be deemed to be greater
than 4.00 to 1. If on any Adjustment Date the Consolidated Leverage Ratio would
result in different Applicable Margins, the higher Applicable Margin shall
govern. Each determination of the Consolidated Leverage Ratio pursuant to this
definition shall be made with respect to the period of four consecutive fiscal
quarters of the Borrower ending at the end of the period covered by the relevant
financial statements.