EXHIBIT 10.5
U.S. $205,000,000
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of July 20, 1998
(amending and restating the Credit Agreement,
dated as of May 1, 1998),
among
FORMICA CORPORATION
FORMICA LIMITED
FORMICA HOLDCO (UK) LIMITED
FORMICA CANADA, INC.
FORMICA ▇.▇.
▇▇▇▇▇▇▇ ESPANOLA S.A.
as the Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
BANKERS TRUST COMPANY,
as the Administrative Agent for the Lenders,
and
CREDIT SUISSE FIRST BOSTON, as the
Documentation Agent for the Lenders.
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ARRANGED BY
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 20, 1998,
is among Formica Corporation, a Delaware corporation (the "Company"), Formica
Limited, a company organized and existing under the laws of the United Kingdom
of Great Britain and Northern Ireland (the "U.K. Revolver Borrower"), Formica
Holdco (UK) Limited, a company organized and existing under the laws of the
United Kingdom of Great Britain and Northern Ireland (the "U.K. Term Borrower"),
Formica Canada, Inc., a corporation organized and existing under the laws of
British Columbia, Canada (the "Canadian Borrower"), ▇▇▇▇▇▇▇ ▇.▇., a societe
anonyme organized and existing under the laws of the French Republic (the
"French Revolver Borrower"), Formica Espanola S.A., a sociedad anonima organized
and existing under the laws of the Kingdom of Spain (the "Spanish Revolver
Borrower") and the other Foreign Borrowers that may become parties hereto
(collectively with the Company, the U.K. Revolver Borrower, the U.K. Term
Borrower, the Canadian Borrower, the French Revolver Borrower and the Spanish
Revolver Borrower, the "Borrowers"), the various financial institutions as are
or may become parties hereto (collectively, the "Lenders"), DLJ Capital Funding,
Inc. ("DLJ"), as syndication agent (the "Syndication Agent") for the Lenders,
Bankers Trust Company ("BTCo"), as administrative agent (the "Administrative
Agent") for the Lenders, and Credit Suisse First Boston ("CSFB"), as
documentation agent (the "Documentation Agent") for the Lenders (the Syndication
Agent, the Administrative Agent and the Documentation Agent are sometimes
referred to herein individually as an "Agent" and collectively as the "Agents").
W I T N E S S E T H:
WHEREAS pursuant to the Credit Agreement, dated as of May 1, 1998 (as
amended, supplemented, or otherwise modified prior to the date hereof, the
"Existing Credit Agreement"), among the Company (as survivor of the merger with
LMS II, Co.), each of the Foreign Borrowers named therein (together with the
Company, the "Existing Borrowers"), the various financial institutions party
thereto (the "Existing Lenders") and the Agents named therein, the Existing
Lenders and the Issuers extended Commitments to make Credit Extensions to the
Existing Borrowers on the terms and conditions set forth therein;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated in its entirety to become effective and
binding on the Borrowers pursuant to the terms of this Agreement, and the
Lenders (including the Existing Lenders) have agreed (subject to the terms of
this Agreement) to amend and restate the Existing Credit Agreement in its
entirety to read as set forth in this Agreement, and it has been agreed by the
parties to the Existing Credit Agreement that (a) the Commitments of the
Existing Lenders under the Existing
Credit Agreement shall be extended or advanced upon the amended and restated
terms and conditions contained in this Agreement, and (b) any outstanding Credit
Extensions made and other Obligations outstanding under the Existing Credit
Agreement shall be governed by and deemed to be outstanding under the amended
and restated terms and conditions contained in this Agreement, with the intent
that the terms of this Agreement shall supersede the terms of the Existing
Credit Agreement (which shall hereafter have no further effect upon the parties
thereto, other than for accrued fees and expenses, and indemnification
provisions, accrued and owing under the terms of the Existing Credit Agreement
on or prior to the date hereof or arising under the terms of the Existing Credit
Agreement); provided, that any Rate Protection Agreements with any one or more
Existing Lenders (or their respective Affiliates) shall continue unamended and
in full force and effect;
WHEREAS, Laminates Acquisition Co., a Delaware corporation
("Holdings"), owns all of the issued and outstanding Voting Stock of FM
Holdings, Inc., a Delaware corporation ("FMH"), and FMH owns all of the issued
and outstanding Capital Stock of the Company;
WHEREAS, in connection with amending and restating the Existing Credit
Agreement and at the time of the effectiveness of such amendment and
restatement, Credit Extensions from this Agreement shall be used, in part, to
repay in full the principal amount of all term loans and revolving loans
outstanding under the Existing Credit Agreement, and each of the Borrowers
desires to obtain, pursuant to this Agreement, the following financing
facilities from the Lenders:
(a) a Term Loan Commitment pursuant to which (i) Borrowings of
U.S. Term Loans will be made to the Company, (ii) Borrowings of U.K.
Term Loans will be made to the U.K. Term Borrower and (iii) Borrowings
of Canadian Term Loans will be made to the Canadian Borrower, in each
case on the Closing Date, in a maximum aggregate principal amount
(calculated, in the case of U.K. Term Loans and Canadian Term Loans, at
the U.S. Dollar Equivalent thereof) not to exceed $85,000,000;
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to
which (i) Borrowings of U.S. Revolving Loans will be made to the
Company and (ii) Borrowings of Foreign Currency Revolving Loans will be
made to the Foreign Revolver Borrowers, in each case from time to time
on and subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date, in a maximum aggregate principal amount
(together with (x) the U.S. Dollar Equivalent of the Foreign Currency
Letter of Credit Outstandings, (y) the U.S. Letter of Credit
Outstandings and (z) all Swing Line Loans) not to exceed, subject to
the terms and conditions hereof, the then existing Total Revolving Loan
Commitment Amount;
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(c) a Letter of Credit Commitment pursuant to which the
Issuers will issue (i) U.S. Letters of Credit for the account of the
Company and its Subsidiaries and (ii) Foreign Currency Letters of
Credit for the account of the Foreign Borrowers and their respective
Subsidiaries, in each case from time to time on and subsequent to the
Closing Date but prior to the Revolving Loan Commitment Termination
Date, in a maximum aggregate Stated Amount at any one time outstanding
(with Foreign Currency Letter of Credit Outstandings calculated at the
U.S. Dollar Equivalent thereof) not to exceed, subject to the terms and
conditions hereof, $75,000,000 (provided, that the aggregate
outstanding principal amount of (v) all U.S. Revolving Loans, (w) all
Swing Line Loans, (x) the U.S. Dollar Equivalent of all Foreign
Currency Revolving Loans, (y) the U.S. Letter of Credit Outstandings
and (z) the U.S. Dollar Equivalent of the Foreign Currency Letter of
Credit Outstandings shall not, subject to the terms and provisions
hereof, at any time exceed the then existing Total Revolving Loan
Commitment Amount); and
(d) a Swing Line Loan Commitment pursuant to which Borrowings
of Swing Line Loans (which shall be denominated solely in U.S. Dollars)
will be made to the Company from time to time on and subsequent to the
Closing Date but prior to the Revolving Loan Commitment Termination
Date, in a maximum aggregate outstanding principal amount not to exceed
$10,000,000 (provided, that the aggregate outstanding principal amount
of all such Swing Line Loans, together with (w) all U.S. Revolving
Loans, (x) the U.S. Dollar Equivalent of all Foreign Currency Revolving
Loans, (y) the U.S. Letter of Credit Outstandings and (z) the U.S.
Dollar Equivalent of the Foreign Currency Letter of Credit Outstandings
shall not, subject to the terms and provisions hereof, at any time
exceed the then existing Total Revolving Loan Commitment Amount);
WHEREAS, following the Closing Date, the Company desires to obtain a
Spanish Term Loan Commitment, and whereas, for the convenience of the parties
hereto, provisions with respect to such Commitment have been included herein in
anticipation that such Commitment may be provided in the future;
WHEREAS, all Loans and other Obligations shall continue to be and shall
be fully guaranteed pursuant to the Subsidiary Guaranty, the FMH Guaranty and
Pledge Agreement and the Holdings Guaranty and Pledge Agreement and fully
secured by, among other things, each Security Agreement and Pledge Agreement;
and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to so amend and restate
the Existing Credit Agreement and to extend the U.S. Term Loan Commitment, the
U.S. Revolving Loan Commitment, the U.K. Term Loan Commitment, the U.K.
Revolving Loan Commitment, the Canadian Term Loan Commitment, the Canadian
Revolving Loan Commitment, the French Revolving Loan
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Commitment and the Spanish Revolving Loan Commitment, make the Loans available
thereunder and described herein to the Borrowers and issue (or participate in)
Letters of Credit for the account of the Company and its Subsidiaries;
NOW, THEREFORE, the parties hereto hereby agree to amend and restate
the Existing Credit Agreement, and the Existing Credit Agreement is hereby
amended and restated, as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Absolute Rate Auction" means a solicitation of Uncommitted Interest
Quotes setting forth Uncommitted Absolute Interest Rates pursuant to Section
2.4.
"Acceptance Note" is defined in clause (b) of Section 2.11.4.
"Acquisition Transactions" means the transactions in which the Equity
Investors, in part indirectly through Holdings, acquired all of the Capital
Stock of FMH and the Purchased Foreign Subsidiaries, certain Subsidiaries of
Holdings merged into FMH and certain of its Subsidiaries and the Capital Stock
of the Purchased Foreign Subsidiaries was contributed, directly or indirectly,
to the Company.
"Additional Cost" means, with respect to any U.K. Loan, for any
Interest Period, the cost as calculated by the Administrative Agent in
accordance with Schedule IV hereto imputed to each applicable Lender of
compliance with the mandatory liquid assets requirements of the Bank of England
during that Interest Period, expressed as a percentage.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Administrative Agent's Fee Letter" means the confidential fee letter
entered into on May 1, 1998 between the Company and the Administrative Agent
with respect to certain fees to be paid hereunder.
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"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners, or (ii)
to direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Affirmation and Consent" means the Affirmation and Consent to be
executed and delivered by each Obligor pursuant to Section 5.1.4, in form and
substance reasonably satisfactory to the Agents, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Agents" is defined in the preamble.
"Agreement" means, on any date, the Existing Credit Agreement, as
amended and restated hereby and as from time to time further amended,
supplemented, amended and restated, or otherwise modified.
"Alternate Base Rate" means, for any day and with respect to all Base
Rate Loans, the higher of: (a) 0.50% per annum above the latest Federal Funds
Rate; and (b) the rate of interest in effect for such day as most recently
publicly announced or established by the Administrative Agent in New York, New
York, as its "prime rate." The prime rate is not necessarily intended to be the
lowest rate of interest determined by the Administrative Agent in connection
with extensions of credit. Any change in the prime rate established or announced
by the Administrative Agent shall take effect at the opening of business on the
day of such establishment or announcement.
"Annualized" means (i) with respect to the end of the first Fiscal
Quarter of the Company ending after the Original Closing Date, the applicable
amount for such Fiscal Quarter multiplied by four, (ii) with respect to the
second Fiscal Quarter of the Company ending after the Original Closing Date, the
applicable amount for such Fiscal Quarter and the immediately preceding Fiscal
Quarter multiplied by two, and (iii) with respect to the third Fiscal Quarter of
the Company ending after the Original Closing Date, the applicable amount for
such Fiscal Quarter and the immediately preceding two Fiscal Quarters multiplied
by one and one-third.
"Applicable Canadian BA Stamping Fee" means, with respect to Canadian
Loans maintained as Canadian BAs, the applicable percentage set forth under the
column entitled "Applicable Canadian BA Stamping Fee" with respect thereto
within the definition of Applicable Margin set forth below.
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"Applicable Commitment Fee" means, (i) for each day from the Original
Closing Date through (but excluding) the date upon which the Compliance
Certificate for the second full Fiscal Quarter ending after the Original Closing
Date is delivered or required to be delivered by the Company to the
Administrative Agent pursuant to clause (c) of Section 7.1.1, a fee which shall
accrue at a rate of 1/2 of 1% per annum, and (ii) for each day thereafter, a fee
which shall accrue at the applicable rate per annum set forth below under the
column entitled "Applicable Commitment Fee", determined by reference to the
applicable Leverage Ratio referred to below:
Leverage Applicable
Ratio Commitment Fee
----------------------- ------------------
greater than or equal
to 5.0:1 0.500%
greater than or equal
to 4.0:1 and less than
5.0:1 0.375%
greater than or equal
to 3.0:1 and less than
4.0:1 0.300%
less than 3.0:1 0.250%
The Leverage Ratio used to compute the Applicable Commitment Fee for
any day referred to in clause (ii) above shall be the Leverage Ratio set forth
in the Compliance Certificate most recently delivered by the Company to the
Administrative Agent on or prior to such day pursuant to clause (c) of Section
7.1.1. Changes in the Applicable Commitment Fee resulting from a change in the
Leverage Ratio shall become effective on the first day following delivery by the
Company to the Administrative Agent of a new Compliance Certificate pursuant to
clause (c) of Section 7.1.1. If the Company shall fail to deliver a Compliance
Certificate within the number of days after the end of any Fiscal Quarter as
required pursuant to clause (c) of Section 7.1.1 (without giving effect to any
grace period), the Applicable Commitment Fee from and including the first day
after the date on which such Compliance Certificate was required to be delivered
to but not including the date the Company delivers to the Administrative Agent a
Compliance Certificate shall conclusively equal the highest Applicable
Commitment Fee set forth above. Notwithstanding the foregoing, the Company may,
in its sole discretion, within ten Business Days following the end of any Fiscal
Quarter, deliver to the Administrative Agent a written estimate (the "Leverage
Ratio Estimate") setting forth the Company's good faith estimate of the Leverage
Ratio (based on calculations contained in a Compliance Certificate) that will be
set forth in the next Compliance Certificate required to be delivered by the
Company to the
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Administrative Agent pursuant to clause (c) of Section 7.1.1. In the event that
the Leverage Ratio Estimate indicates that there would be a change in the
Applicable Commitment Fee resulting from a change in the Leverage Ratio, such
change will become effective on the first day following delivery of the Leverage
Ratio Estimate. In the event that, once the next Compliance Certificate is
delivered, the Leverage Ratio as set forth in such Compliance Certificate
differs from that calculated in the Leverage Ratio Estimate delivered for the
Fiscal Quarter with respect to which such Compliance Certificate has been
delivered, and such difference results in an Applicable Commitment Fee which is
greater or lesser than the Applicable Commitment Fee theretofore in effect, then
(A) such greater or lesser Applicable Commitment Fee shall be deemed to be in
effect for all purposes of this Agreement from the first day following the
delivery of the Leverage Ratio Estimate and (B) if any Borrower shall have
theretofore made any payment of Commitment Fees in respect of the period from
the first day following the delivery of the Leverage Ratio Estimate to the
actual date of delivery of the Compliance Certificate, then, on the next
Quarterly Payment Date, either (x) if the new Applicable Commitment Fee is
greater than the Applicable Commitment Fee theretofore in effect, such Borrower
shall pay as a supplemental payment of Commitment Fees, an amount which equals
the difference between the amount of Commitment Fees that would otherwise have
been paid based on such new Leverage Ratio and the amount of such Commitment
Fees actually so paid, or (y) if the new Applicable Commitment Fee is less than
the Applicable Commitment Fee theretofore in effect, an amount shall be deducted
from the interest on Committed Revolving Loans and Commitment Fees and Letter of
Credit Fees under the first sentence of Section 3.3.3 then otherwise payable in
an amount which equals the difference between the amount of Commitment Fees so
paid and the amount of Commitment Fees that would otherwise have been paid based
on such new Leverage Ratio (or, if no such payment is owed by the Borrowers to
the applicable Lenders on such next Quarterly Payment Date, or if such amount
owed by the Borrowers is less than such difference, the applicable Lenders shall
pay to the Borrowers on such next Quarterly Payment Date the amount of such
difference less the amount, if any, owed by the Borrowers to such Lenders on
such Quarterly Payment Date).
"Applicable Margin" means at all times during the applicable periods
set forth below,
(a) from the Original Closing Date through (but excluding) the
date upon which the Compliance Certificate for the second full Fiscal
Quarter ending after the Original Closing Date is delivered by the
Company to the Administrative Agent pursuant to clause (c) of Section
7.1.1, with respect to the unpaid principal amount of each (i) Swing
Line Loan (which shall be borrowed and maintained only as a U.S. Dollar
denominated Base Rate Loan) and each Committed Revolving Loan and Term
Loan maintained as a Base Rate Loan, 1.00% per annum, and (ii)
Committed Revolving Loan and Term Loan maintained as a LIBO Rate Loan,
2.25% per annum;
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(b) at all times after the date of delivery of the Compliance
Certificate described in clause (a) above, with respect to the unpaid
principal amount of each Swing Line Loan (which shall be borrowed and
maintained only as a U.S. Dollar denominated Base Rate Loan) and each
Committed Revolving Loan and Term Loan, the rate determined by
reference to the applicable Leverage Ratio and at the applicable
percentage per annum set forth below under the column entitled
"Applicable Margin for Base Rate Loans", in the case of Base Rate
Loans, or by reference to the applicable Leverage Ratio and at the
applicable percentage per annum set forth below under the column
entitled "Applicable Margin for LIBO Rate Loans", in the case of LIBO
Rate Loans:
Applicable Margin For Committed Revolving Loans, Swing Line Loans
and Term Loans
Applicable Applicable
Margin For Base Margin-For-LIBO
Leverage Ratio Rate Loans Rate Loans
-------------------------------- ------------------- -------------------
greater than or equal to 5.0:1 1.00% 2.25%
greater than or equal to
4.0:1 and less than 5.0:1 0.75% 2.00%
greater than or equal to
3.0:1 and less than 4.0:1 0.25% 1.50%
less than 3.0:1 0.00% 1.00%;
(c) at all times after the date of delivery of the Compliance
Certificate described in clause (a) above, with respect to the unpaid
principal amount of each Canadian Loan, the rate determined by
reference to the applicable Leverage Ratio and at the applicable
percentage per annum set forth below under the column entitled
"Applicable Margin for Base Rate Loans", in the case of Base Rate
Loans, or by reference to the applicable Leverage Ratio and at the
applicable percentage per annum set forth below under the column
entitled "Applicable Canadian BA Stamping Fee", in the case of Canadian
BAs:
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Applicable Margin For Canadian Loans
Applicable Applicable
Margin For Base Canadian BA
Leverage Ratio Rate Loans Stamping Fee
-------------------------------- ------------------- -----------------
greater than or equal to 5.0:1 1.00% 2.25%
greater than or equal to
4.0:1 and less than 5.0:1 0.75% 2.00%
greater than or equal to
3.0:1 and less than 4.0:1 0.25% 1.50%
less than 3.0:1 0.00% 1.00%.
The Leverage Ratio used to compute the Applicable Margin for Swing Line
Loans, Committed Revolving Loans and Term Loans and the Applicable Canadian BA
Stamping Fee for Canadian BAs for any day referred to in clauses (b) or (c)
above shall be the Leverage Ratio set forth in the Compliance Certificate most
recently delivered by the Company to the Administrative Agent on or prior to
such day pursuant to clause (c) of Section 7.1.1. Changes in the Applicable
Margin for Swing Line Loans, Committed Revolving Loans and Term Loans and the
Applicable Canadian BA Stamping Fee for Canadian BAs resulting from a change in
the Leverage Ratio shall become effective on the first day following delivery by
the Company to the Administrative Agent of a new Compliance Certificate pursuant
to clause (c) of Section 7.1.1. If the Company shall fail to deliver a
Compliance Certificate within the number of days after the end of any Fiscal
Quarter as required pursuant to clause (c) of Section 7.1.1 (without giving
effect to any grace period), the Applicable Margin for Swing Line Loans,
Committed Revolving Loans and Term Loans and the Applicable Canadian BA Stamping
Fee for Canadian BAs from and including the first day after the date on which
such Compliance Certificate was required to be delivered to but not including
the date the Company delivers to the Administrative Agent a Compliance
Certificate shall conclusively equal the highest Applicable Margin for Swing
Line Loans, Committed Revolving Loans and Term Loans and the Applicable Canadian
BA Stamping Fee for Canadian BAs set forth above. Notwithstanding the foregoing,
the Company may, in its sole discretion, within ten Business Days following the
end of any Fiscal Quarter, deliver to the Administrative Agent a Leverage Ratio
Estimate setting forth the Company's good faith estimate of the Leverage Ratio
(based on calculations set forth in a Compliance Certificate) that will be set
forth in the next Compliance Certificate required to be delivered by the Company
to the Administrative Agent pursuant to clause (c) of Section 7.1.1. In the
event that the Leverage Ratio Estimate indicates that there would be a change in
the Applicable Margin and the Applicable Canadian BA Stamping Fee resulting from
a change in the Leverage Ratio, such
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change will become effective on the first day following delivery of the Leverage
Ratio Estimate. In the event that, once the next Compliance Certificate is
delivered, the Leverage Ratio as set forth in such Compliance Certificate
differs from that calculated in the Leverage Ratio Estimate delivered for the
Fiscal Quarter with respect to which such Compliance Certificate has been
delivered, and such difference results in an Applicable Margin or Applicable
Canadian BA Stamping Fee, as the case may be, which is greater or lesser than
the Applicable Margin or Applicable Canadian BA Stamping Fee theretofore in
effect, then (A) such greater or lesser Applicable Margin or Applicable Canadian
BA Stamping Fee shall be deemed to be in effect for all purposes of this
Agreement from the first day following the delivery of the Leverage Ratio
Estimate and (B) if any Borrower shall have theretofore made any payment of
interest in respect of Swing Line Loans, Committed Revolving Loans or Term
Loans, or of Letter of Credit Fees pursuant to the first sentence of Section
3.3.3, in any such case in respect of the period from the first day following
the delivery of the Leverage Ratio Estimate to the actual date of delivery of
the Compliance Certificate, then, on the next Quarterly Payment Date, either (x)
if the new Applicable Margin or Canadian BA Stamping Fee is greater than the
Applicable Margin or Canadian BA Stamping Fee theretofore in effect, such
Borrower shall pay as a supplemental payment of interest and/or Letter of Credit
Fees, an amount which equals the difference between the amount of interest and
Letter of Credit Fees that would otherwise have been paid based on such new
Leverage Ratio and the amount of such interest and Letter of Credit Fees
actually so paid, or (y) if the new Applicable Margin or Canadian BA Stamping
Fee is less than the Applicable Margin or Canadian BA Stamping Fee theretofore
in effect, an amount shall be deducted from the interest on Committed Revolving
Loans, Commitment Fees and Letter of Credit Fees (in the case of differences in
respect of interest on Committed Revolving Loans and Letter of Credit Fees) or
from the interest on Term Loans (in the case of differences in respect of
interest on Term Loans) thereafter payable by such Borrower in an amount which
equals the difference between the amount of interest and Letter of Credit Fees
so paid and the amount of interest and Letter of Credit Fees that would
otherwise have been paid based on such new Leverage Ratio (or, if no such
payment by such Borrower to the applicable Lenders will thereafter accrue
hereunder, or if the amount that so accrues is less than such difference, the
applicable Lenders will promptly pay to such Borrower an amount equal to such
difference less the amount, if any, of such accrued and unpaid payments).
"Arranger" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation,
a Delaware corporation.
"Assignee Lender" is defined in Section 11.11.1.
"Assignor Lender" is defined in Section 11.11.1.
"Assumed Indebtedness" means Indebtedness of a Person which is (i) in
existence at the time such Person becomes a Restricted Subsidiary of the Company
or (ii) assumed in connection
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with an Investment in or acquisition of such Person, and has not been incurred
or created by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the Company.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 5.1.1.
"Base Financial Statements" is defined in Section 6.5.
"Base Rate Loan" means a Committed Loan bearing interest at a
fluctuating rate determined by reference to either the Alternate Base Rate or,
in the case of Canadian Loans, the Canadian Prime Rate.
"Borrowers" is defined in the preamble.
"Borrowing" means, as the context may require, Loans of the same type,
made to the same Borrower and in the same Currency (and, in the case of Fixed
Rate Loans, having the same Interest Period) made by the relevant Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1 (in the case of Committed Loans) or Section 2.4 (in the case of
Uncommitted Revolving Loans).
"Borrowing Request" means (i) in the case of Committed Loans, a
Committed Loan Borrowing Request and (ii) in the case of Uncommitted Revolving
Loans, an Uncommitted Revolving Loan Borrowing Request.
"British Pounds" means the lawful currency of the United Kingdom of
Great Britain and Northern Ireland.
"BTCo" is defined in the preamble.
"Business Day" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York City and, (i) with respect to Borrowings of, Interest Periods with respect
to, payments of principal and interest in respect of, and conversions of Base
Rate Loans into, Fixed Rate Loans, on which dealings in the applicable Currency
are carried on in the London interbank market and (ii) with respect to any
Borrowings of, Interest Periods with respect to, and payments of principal and
interest in respect of, Foreign Currency Loans or Reimbursement Obligations in
respect of Foreign Currency Letters of Credit, on which banks are generally open
for business in the principal financial center of the jurisdiction of such
Foreign Currency.
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"Canadian BA" means a ▇▇▇▇ of exchange drawn by the Canadian Borrower
and accepted by a Lender that is denominated in Canadian Dollars with a term of
30, 60, 90 or 180 days, issued and payable only in Canada and having a face
amount of an integral multiple of Cdn $100,000; provided, however, that,
(a) to the extent the context shall require, each Acceptance
Note shall be deemed to be a Canadian BA; and
(b) references to outstanding principal amounts relating to
Canadian BAs shall refer to the stated amount of unmatured Canadian BAs
which have not been collateralized pursuant to, and in accordance with,
the terms of clause (i) of Section 3.1.1.
"Canadian BA Rate" means, for a particular term, the discount rate per
annum, calculated on the basis of a year of 365 days or 366 days, as the case
may be, equal to the average rate per annum for Canadian Dollar bankers'
acceptances having such term that appears on the Reuters Screen CDOR Page (or
any successor page) as of 11:00 a.m., Toronto time, on the first day of such
term as determined by the Administrative Agent or, if such rate is not available
at such time, the average discount rate for bankers acceptances (accepted by
Canadian chartered banks agreed to by the Administrative Agent and the Canadian
Borrower) having such term as calculated by the Administrative Agent in
accordance with normal market practice on such day.
"Canadian Borrower" is defined in the preamble.
"Canadian Dollar" and "Cdn $" each mean the lawful currency of Canada.
"Canadian Loan" means, as the context may require, a Committed Canadian
Revolving Loan or Canadian Term Loan.
"Canadian Prime Rate" means, on any date and relative to Canadian
Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its prime rate for
Canadian Dollar loans in Canada; and
(b) the Canadian BA Rate most recently determined by the
Administrative Agent for 30-days bankers' acceptances plus the lesser
of (i) 3/4 of 1% and (ii) the Applicable Canadian BA Stamping Fee.
The Canadian Prime Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Canadian Loans
maintained at the Canadian Prime Rate will take
-12-
effect simultaneously with each change in the Canadian Prime Rate. The
Administrative Agent will give notice promptly to the Canadian Borrower and the
applicable Lenders of changes in the Canadian Prime Rate.
"Canadian Revolving Loan Commitment" is defined in clause (e) of
Section 2.1.2.
"Canadian Revolving Loan Commitment Amount" means $5,000,000 (with
Canadian Revolving Loans to be denominated in Canadian Dollars), as such amount
may be modified pursuant to the terms hereof.
"Canadian Term Loan Commitment" is defined in clause (c) of Section
2.1.1.
"Canadian Term Loan Commitment Amount" means $10,000,000 (with Canadian
Term Loans to be denominated in Canadian Dollars).
"Canadian Term Loans" is defined in clause (c) of Section 2.1.1.
"Capital Expenditures" means, for any period, the sum, without
duplication, of (i) the aggregate amount of all expenditures of the Company and
its Restricted Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as capital expenditures, and
(ii) the aggregate amount of the principal component of all Capitalized Lease
Liabilities incurred during such period by the Company and its Restricted
Subsidiaries; provided that Capital Expenditures shall not include (i) any such
expenditures or any such principal component funded with (x) any Casualty
Proceeds, as permitted under Section 3.1.1, or (y) any Net Disposition Proceeds
of any Asset Sale permitted under clause (c) of Section 7.2.9 or any Asset Sale
of obsolete or worn out equipment permitted under subclause (a)(i) of Section
7.2.9 or (ii) any Investment made pursuant to Section 7.2.5 (other than pursuant
to clause (d) thereof).
"Capital Stock" means (i) in the case of a corporation, any and all
capital or corporate stock, (ii) in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) in the nature of corporate stock, (iii) in the
case of a partnership or limited liability company, any and all partnership or
membership interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Capital Transactions" means the Senior Subordinated Bridge Note
Issuance, the Holdings Equity Issuance and the FMH Preferred Stock Issuance.
-13-
"Capitalized Lease Liabilities" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness issued directly by the United
States of America or any agency thereof or guaranteed by the United
States of America or any agency thereof;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by (i) a corporation (other than an
Affiliate of any Obligor) organized under the laws of any state of the
United States or of the District of Columbia and rated at least A-l by
S&P or P-l by ▇▇▇▇▇'▇, or (ii) any Lender (or its holding company);
(c) any time deposit, certificate of deposit or bankers'
acceptance, maturing not more than one year after such time, maintained
with or issued by either (i) a commercial banking institution
(including U.S. branches of foreign banking institutions) that is a
member of the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000, or (ii)
any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either ▇▇▇▇▇'▇ or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) repurchase agreements which (i) are entered into with any
entity referred to in clause (b) or (c) above or any other financial
institution whose unsecured long-term debt (or the unsecured long-term
debt of whose holding company) is rated at least A- or better by S&P or
A3 or better by ▇▇▇▇▇'▇ and maturing not more than one year after such
time and (ii) are secured by a fully perfected security interest in
securities of the type referred to in clause (a) above which have a
market value at the time such repurchase agreement is entered into of
not less than 100% of the repurchase obligation of such counterparty
entity with whom such repurchase agreement has been entered into;
(f) any money market or similar fund not less than 95% of the
assets of which are comprised of the items specified in clauses (a)
through (e) above and as to which withdrawals are permitted at least
every 90 days; or
(g) in the case of any Subsidiary of the Company organized or
having its principal place of business outside the United States,
investments denominated in the
-14-
Currency of the jurisdiction in which such Subsidiary is organized or
has its principal place of business which are similar to the items
specified in clauses (a) through (f) above.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of any property of the Company or any of its Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the Company
or any of its Subsidiaries in connection therewith, but excluding any proceeds
or awards required to be paid to a creditor (other than the Lenders) which holds
a Lien on the property which is the subject of such Casualty Event which Lien is
(i) permitted by Section 7.2.3 and (ii) is prior to the Liens of the Lenders, if
any, on such property.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Information System List.
"Change in Control" means, at any time after the Closing Date, (i) the
failure of Holdings to own, free and clear of all Liens and encumbrances (other
than Liens of the type permitted to exist under clauses (b), (d) and (g) of
Section 7.2.3), all right, title and interest in 100% of the Voting Stock of
FMH; (ii) the failure of FMH to own, free and clear of all Liens and
encumbrances (other than Liens of the type permitted to exist under clauses (b),
(d) and (g) of Section 7.2.3), all right, title and interest in 100% of the
Capital Stock of the Company (other than directors' qualifying shares); (iii)
the failure of the Equity Investors to own at least 51% (on a fully diluted
basis) of the economic and voting interest in the Voting Stock of Holdings; or
(iv) the failure of the Equity Investors and their Affiliates to have the right
to designate or nominate, directly or indirectly, no less than 51% of the
Directors of Holdings, FMH and the Company; provided that (a) no Change of
Control shall result from a holding company owning 100% of the Voting Stock of
Holdings so long as (x) such holding company shall have entered into an
agreement with the Administrative Agent for the benefit of the Secured Parties
substantially similar to the Holdings Guaranty and Pledge Agreement whereby such
holding company guarantees the Obligations and pledges the Voting Stock of
Holdings to secure the Obligations and (y) neither of the conditions set forth
in clauses (iii) or (iv) above shall exist with respect to such holding company
(deeming, for purposes of this clause (y), all references to Holdings in such
clauses (iii) and (iv) and elsewhere in this Agreement (including the definition
of Net Equity Proceeds) other than Article V to be references to such holding
company) and (b) this proviso shall apply to any such holding company as if
references to Holdings in clause (a) of this proviso were references to such
holding company.
-15-
"Charter Document" means, relative to any Obligor, its certificate of
incorporation (or similar charter document), its by-laws and all shareholder
agreements, voting trusts and similar arrangements to which such Obligor is a
party applicable to any of its authorized shares of Capital Stock.
"Closing Date" means the date all conditions set forth in Section 5.1
are satisfied, not to be later than July 31, 1998.
"Closing Date Certificate" means a certificate of an Authorized Officer
of the Company substantially in the form of Exhibit D hereto, delivered pursuant
to Section 5.1.2.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, (i) a Lender's Term
Loan Commitment, Revolving Loan Commitment or Letter of Credit Commitment or
(ii) the Swing Line Lender's Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, a Term Loan
Commitment Amount, a Revolving Loan Commitment Amount, a Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount.
"Commitment Letter" means the commitment letter, dated April 25, 1998,
among the Institutional Investors, the Arranger and the Syndication Agent,
including all annexes and exhibits thereto.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date or the Term Loan Commitment
Termination Date.
"Commitment Termination Event" means (i) the occurrence of any Event of
Default described in clauses (b) through (d) of Section 8.1.9 or (ii) the
occurrence and continuance of any other Event of Default and either (x) the
declaration of the Loans or other Obligations to be due and payable pursuant to
Section 8.3, or (y) in the absence of such declaration, the giving of notice to
the Company by the Administrative Agent, acting at the direction of the Required
Lenders, that the Commitments have been terminated.
"Committed Borrowing" means a Borrowing comprised of Committed Loans.
"Committed Canadian Revolving Loans" is defined in clause (e) of
Section 2.1.2.
"Committed Foreign Currency Loan" means a Committed Foreign Currency
Revolving Loan or a Foreign Currency Term Loan.
-16-
"Committed Foreign Currency Revolving Loan" means a Committed Canadian
Revolving Loan, a Committed French Revolving Loan, a Committed Spanish Revolving
Loan, a Committed U.K. Revolving Loan or any other Loan made pursuant to a
Foreign Currency Revolving Loan Commitment.
"Committed French Revolving Loans" is defined in clause (d) of Section
2.1.2.
"Committed Loan" means a Term Loan, a Committed Revolving Loan or a
Swing Line Loan.
"Committed Loan Borrowing Request" means a loan request and certificate
executed by an Authorized Officer of the applicable Borrower, substantially in
the form of Exhibit B-1.
"Committed Revolving Loan" means a Committed Foreign Currency Revolving
Loan or a U.S. Revolving Loan.
"Committed Spanish Revolving Loans" is defined in clause (c) of Section
2.1.2.
"Committed U.K. Revolving Loans" is defined in clause (b) of Section
2.1.2.
"Company" is defined in the preamble.
"Company Intercompany Loan" means the intercompany loan made by the
Company to FMH, evidenced by the Company Intercompany Note.
"Company Intercompany Note" means the promissory note issued by FMH to
the Company on the Original Closing Date.
"Company Pledge Agreement" means the Pledge Agreement, dated as of May
1, 1998, executed and delivered by an Authorized Officer of the Company pursuant
to the Existing Credit Agreement, as amended, supplemented, amended and restated
or otherwise modified from time to time.
"Company Security Agreement" means the Security Agreement, dated as of
May 1, 1998, executed and delivered by an Authorized Officer of the Company
pursuant to the Existing Credit Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Compliance Certificate" means a certificate duly completed and
executed by the president, chief executive officer, treasurer, assistant
treasurer, controller or chief financial Authorized Officer of the Company,
substantially in the form of Exhibit E-1 hereto.
-17-
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount of the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414(b) or 414(c) of the
Code, or for purposes of Section 412 of the Code, Section 414(m) or Section
414(o) of the Code.
"Credit Extension" means, as the context may require, (i) the making of
a Loan by a Lender or (ii) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any previously issued Letter of Credit,
by an Issuer. A continuation or conversion of a Canadian BA as set forth in
Sections 2.6.1 and 2.6.2 shall not constitute a Credit Extension.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"CSFB" is defined in the preamble.
"Currency" means, as the context may require, U.S. Dollars or any
Foreign Currency.
"Current Assets" means, on any date, without duplication, all assets
which, in accordance with GAAP, would be included as current assets on a
consolidated balance sheet of the Company and its Restricted Subsidiaries at
such date as current assets (excluding, however, amounts due and to become due
from Affiliates of the Company which have arisen from transactions which are
other than arm's-length and in the ordinary course of its business).
"Current Liabilities" means, on any date, without duplication, all
amounts which, in accordance with GAAP, would be included as current liabilities
on a consolidated balance sheet
-18-
of the Company and its Restricted Subsidiaries at such date, excluding current
maturities of Debt.
"CVC Entities" means CVC European Equity Partners, L.P., CVC European
Equity Partners (Jersey) L.P. and MMI Products, L.L.C.
"Debt" means, without duplication, the outstanding principal amount of
all Indebtedness of the Company and its Restricted Subsidiaries that (i) is of
the type referred to in clause (a) or (c) of the definition of "Indebtedness",
(ii) is of the type referred to in clause (b) of the definition of
"Indebtedness" (exclusive, however, of any such Indebtedness in respect of (x)
undrawn commercial letters of credit supporting Debt of the type described in
clause (i) above and undrawn trade letters of credit and (y) undrawn letters of
credit in respect of workers' compensation, insurance, performance and surety
bonds and similar obligations, in each case incurred in the ordinary course of
business) and (iii) any Contingent Liability in respect of any of the foregoing
types of Indebtedness.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would, unless cured or
waived, constitute an Event of Default.
"Disbursement" is defined in Section 2.8.2.
"Disbursement Date" is defined in Section 2.8.2.
"Disbursement Due Date" is defined in Section 2.8.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Company with the written consent of the Required Lenders.
"DLJ" is defined in the preamble.
"DLJMB Entities" means DLJ Merchant Banking Partners II, L.P., DLJ
Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJMB Funding II,
Inc., DLJ EAB Partners, L.P., UK Investment Plan 1997 Partners, DLJ Diversified
▇▇▇▇▇▇▇▇-▇, ▇.▇., ▇▇▇ ▇▇▇ ▇▇, ▇.▇., ▇▇▇ First ESC, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners-A, L.P. and DLJ Merchant Banking
Partners II-A, L.P.
"Documentation Agent" is defined in the preamble.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such Lender's "Domestic Office" on Schedule II hereto or in
a Lender Assignment Agreement,
-19-
or such other office of a Lender (or any successor or assign of such Lender) as
may be designated from time to time by notice from such Lender, as the case may
be, to the Administrative Agent.
"EBITDA" means, for any applicable period, subject to clause (b) of
Section 1.4, the sum (without duplication) for the Company and its Restricted
Subsidiaries on a consolidated basis of
(a) Net Income,
plus
(b) the amount deducted in determining Net Income representing
non-cash charges or expenses, including depreciation and amortization
(excluding any non-cash charges representing (i) an accrual of or
reserve for cash charges in any future period or (ii) amortization of a
prepaid cash expense paid in a prior period),
plus
(c) the amount deducted in determining Net Income representing
income taxes (whether paid or deferred),
plus
(d) the amount deducted in determining Net Income representing
Interest Expense and fees, expenses and management bonuses (to the
extent, in the case of management bonuses, paid at or prior to the
Original Closing Date) incurred in connection with the Transaction or
any acquisition, and financing costs,
plus
(e) the amount deducted in determining Net Income representing
any net loss realized in connection with any sale, lease, conveyance or
other disposition of any asset (other than in the ordinary course of
business or from the Company or any of its Restricted Subsidiaries to
the Company or any of its Restricted Subsidiaries) or any extraordinary
or non-recurring loss,
minus
(f) Restricted Payments of the type referred to in clause
(c)(i) of Section 7.2.6 made during such period.
"EMU" is defined in Section 2.10.
-20-
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to the protection of the environment
or the effect of the environment on human health or safety.
"Equity Investors" means the Institutional Investors and the Management
Investors.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euro" is defined in Section 2.10.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any applicable period, the excess (if
any), of
(a) EBITDA for such applicable period;
over
(b) the sum, without duplication (for such applicable period) of
(i) the cash portion of Interest Expense for such
applicable period;
plus
(ii) scheduled payments and mandatory prepayments, to the
extent actually made, of the principal amount of the Term Loans
or any other funded Debt (including Capitalized Lease
Liabilities), and mandatory prepayments of the principal amount
of the Revolving Loans pursuant to clause (g) of Section 3.1.1 in
connection with a reduction of any Revolving Loan Commitment
Amount, in each case for such applicable period;
plus
(iii) all federal, state and foreign income taxes actually
(without duplication) paid or payable in cash by the Company and
its Subsidiaries for such applicable period;
-21-
plus
(iv) Capital Expenditures actually made during such
applicable period pursuant to clause (a) of Section 7.2.7
(excluding Capital Expenditures constituting Capitalized Lease
Liabilities and by way of the incurrence of Indebtedness
permitted pursuant to clause (c) of Section 7.2.2 to a vendor of
any assets permitted to be acquired pursuant to Section 7.2.7 to
finance the acquisition of such assets);
plus
(v) the amount of the net increase (if any) of Current
Assets, other than cash and Cash Equivalent Investments, over
Current Liabilities of the Company and its Subsidiaries for such
applicable period;
plus
(vi) Investments permitted and actually made, in cash,
pursuant to clause (k) of Section 7.2.5 during such applicable
period;
plus
(viii) Restricted Payments of the type described in
clauses (c)(ii) and (c)(iii) of Section 7.2.6 made during such
period;
plus
(ix) gains on sales of assets (other than sales permitted
under clause (a) of Section 7.2.9).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Equivalent" means, on any date of determination, with (a)
respect to any Foreign Currency, the equivalent amount in U.S. Dollars of such
Foreign Currency, and (b) with respect to U.S. Dollars, the equivalent amount in
the applicable Foreign Currency of U.S. Dollars, in each case as determined by
reference to the New York foreign exchange selling rates, as determined by the
Administrative Agent (in accordance with its standard practices).
"Existing Borrowers" is defined in the first recital.
"Existing Credit Agreement" is defined in the first recital.
-22-
"Existing Lenders" is defined in the first recital.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to (i) 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 for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or (ii) if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated as of April 25,
1998, among the Institutional Investors, the Arranger and the Syndication Agent.
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
"Fiscal Year" means any twelve-month period ending on December 31 of
any calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter,
subject to clause (b) of Section 1.4, the ratio computed for the period
consisting of such Fiscal Quarter and each of the three immediately prior Fiscal
Quarters of
(a) EBITDA for all such Fiscal Quarters
to
(b) the sum (without duplication) of
(i) Capital Expenditures actually made during all
such Fiscal Quarters pursuant to clause (a) of Section 7.2.7
(excluding (x) Capital Expenditures constituting Capitalized
Lease Liabilities and (y) the principal component of any
funded Debt incurred pursuant to clause (c) of Section 7.2.2
to finance such Capital Expenditures);
plus
(ii) the cash portion of Interest Expense for all
such Fiscal Quarters, provided that for the first three Fiscal
Quarters ending after the Original Closing Date, Interest
Expense shall be determined on an Annualized basis;
-23-
plus
(iii) all scheduled payments of principal of the Term
Loans and other funded Debt (including the principal portion
of any Capitalized Lease Liabilities and any funded Debt of
the type described in clause (i)(y) above) during all such
Fiscal Quarters, provided that for the first three Fiscal
Quarters ending after the Original Closing Date, such payments
shall be determined on an Annualized basis;
plus
(iv) Restricted Payments permitted pursuant to clause
(d) of Section 7.2.6 made during such period;
plus
(v) all federal, state and foreign income taxes
actually (without duplication) paid or payable in cash by the
Company and its Restricted Subsidiaries and Restricted
Payments made by the Company pursuant to clause (c)(ii) of
Section 7.2.6 during such period.
"Fixed Rate Loan" means a LIBO Rate Loan or a Canadian BA.
"FMH" is defined in the third recital.
"FMH Guaranty and Pledge Agreement" means the Guaranty and Pledge
Agreement, dated as of May 1, 1998, executed and delivered by an Authorized
Officer of FMH pursuant to the Existing Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"FMH Intercompany Loan" means the intercompany loan made by FMH to
Holdings, and evidenced by the FMH Intercompany Note.
"FMH Intercompany Note" means the promissory note issued by Holdings to
FMH on the Original Closing Date.
"FMH Preferred Stock" means the preferred stock of FMH.
"FMH Preferred Stock Issuance" means the issuance on the Original
Closing Date by FMH to the Equity Investors of FMH Preferred Stock for cash
proceeds of approximately $50,000,000.
-24-
"Foreign Borrowers" means, collectively, the Foreign Term Borrowers and
the Foreign Revolver Borrowers.
"Foreign Currency" means any currency other than U.S. Dollars.
"Foreign Currency Equivalent" means the Exchange Equivalent in the
applicable Foreign Currency of any amount of U.S. Dollars.
"Foreign Currency Issuer" means any Lender as may be designated by the
Company (and consented to by the Agents and such Lender, such consent by the
Agents not to be unreasonably withheld) in its capacity as issuer of Foreign
Currency Letters of Credit; provided that such Lender shall undertake to perform
certain administrative functions (including, without limitation, the calculation
of relevant fees and the forwarding of notices) in connection with the issuance
of Foreign Currency Letters of Credit as considered necessary by the
Administrative Agent.
"Foreign Currency Letter of Credit" means a Letter of Credit
denominated in a Foreign Currency.
"Foreign Currency Letter of Credit Commitment" means a Letter of Credit
Commitment in respect of Foreign Currency Letters of Credit.
"Foreign Currency Letter of Credit Commitment Amount" means, on any
date in respect of any Foreign Borrower, the aggregate amount of the Commitments
of all applicable Issuers to issue Foreign Currency Letters of Credit to such
Foreign Borrower denominated in a Foreign Currency; provided, that the Foreign
Currency Letter of Credit Commitment Amount in respect of each Foreign Borrower
shall not exceed the then applicable Foreign Currency Revolving Loan Commitment
Amount for such Borrower, as such amount may be reduced pursuant to Section 2.2
or increased pursuant to Section 2.5.
"Foreign Currency Letter of Credit Outstandings" means, on any date,
an amount equal to the sum of
(a) the then aggregate outstanding amount which is undrawn and
available under all issued and outstanding Foreign Currency Letters of
Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of Foreign Currency Letters of
Credit.
-25-
"Foreign Currency Loan" means, as the context may require, a Foreign
Currency Revolving Loan or a Foreign Currency Term Loan.
"Foreign Currency Revolving Loan" means, as the context may require, a
Committed Foreign Currency Revolving Loan or an Uncommitted Revolving Loan.
"Foreign Currency Revolving Loan Commitment" means, as the context may
require, a Lender's U.K. Revolving Loan Commitment, Spanish Revolving Loan
Commitment, French Revolving Loan Commitment, Canadian Revolving Loan Commitment
or any other commitment of a Lender to make Committed Foreign Currency Revolving
Loans to a Foreign Borrower pursuant to Section 2.5 hereof.
"Foreign Currency Revolving Loan Commitment Addendum" means an addendum
to this Agreement among one or more Lenders, the Company and a Foreign Borrower,
substantially in the form of Exhibit G-1 hereto, setting forth, among other
things, the commitment of such Lender or Lenders to make, and the obligation of
such Foreign Borrower to repay, Committed Foreign Currency Revolving Loans, and,
in certain cases, issue and/or participate in Foreign Currency Letters of
Credit, in accordance with this Agreement.
"Foreign Currency Revolving Loan Commitment Amount" means, as the
context may require, the U.K. Revolving Loan Commitment Amount, the Spanish
Revolving Loan Commitment Amount, the French Revolving Loan Commitment Amount,
the Canadian Revolving Loan Commitment Amount or, with respect to any other
Foreign Currency Revolving Loan Commitment, the amount (expressed in U.S.
Dollars) set forth as the committed amount for such Commitment in the Foreign
Currency Revolving Loan Commitment Addendum with respect to such Foreign
Currency Revolving Loan Commitment.
"Foreign Currency Revolving Loan Limit" means $60,000,000.
"Foreign Currency Term Loan" means, as the context may require, a
Canadian Term Loan, a U.K. Term Loan or a Spanish Term Loan.
"Foreign Currency Term Loan Commitment" means, as the context may
require, a Lender's Canadian Term Loan Commitment, U.K. Term Loan Commitment or
Spanish Term
Loan Commitment.
"Foreign Currency Term Loan Commitment Addendum" means an addendum to
this Agreement among one or more Lenders, the Company and the Spanish Term
Borrower, substantially in the form of Exhibit G-2 hereto, setting forth, among
other things, the commitment of such Lender or Lenders to make, and the
obligation of the Spanish Term Borrower to repay, Spanish Term Loans in
accordance with this Agreement.
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"Foreign Currency Term Loan Commitment Amount" means, as the context
may require, the Canadian Term Loan Commitment Amount, the U.K. Term Loan
Commitment Amount or the Spanish Term Loan Commitment Amount.
"Foreign Revolver Borrowers" means, collectively, the U.K. Revolver
Borrower, the Spanish Revolver Borrower, the French Revolver Borrower, the
Canadian Borrower and any other Non-U.S. Subsidiary of the Company that shall
have satisfied all of the conditions set forth in Section 5.3.
"Foreign Subsidiary Pledge Supplement" means any supplement to a Pledge
Agreement in respect of Subsidiaries of the Company incorporated outside of the
United States of America, in form and substance reasonably satisfactory to the
Administrative Agent, as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time.
"Foreign Term Borrowers" means, collectively, the Canadian Borrower,
the U.K. Term Borrower and the Spanish Term Borrower.
"Formica Business" is defined in Section 7.2.1.
"Formica International" means Formica International Corporation, a New
Jersey corporation.
"Fountainhead Acquisition" means the purchase by Holdings from
International Paper Company and its Subsidiaries ("International Paper") of all
of the assets exclusively relating to International Paper's Fountainhead solid
surfacing operations, such purchase to be on terms reasonably satisfactory to
the Agents.
"French Francs" means the lawful currency of the French Republic.
"French Revolver Borrower" is defined in the preamble.
"French Revolving Loan Commitment" is defined in clause (d) of Section
2.1.2.
"French Revolving Loan Commitment Amount" means $5,000,000 (with French
Revolving Loans to be denominated in French Francs), as such amount may be
modified pursuant to the terms hereof.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
-27-
"Hazardous Material" means (i) any "hazardous substance", as defined by
CERCLA, (ii) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended, (iii) any petroleum product, or (iv) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material or substance
within the meaning of any other applicable Environmental Law.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate or currency swap agreements,
interest or currency exchange rate cap agreements and interest or currency
exchange rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Holdings" is defined in the third recital.
"Holdings Equity Issuance" means the issuance on the Original Closing
Date by Holdings to the Equity Investors of common stock and preferred stock of
Holdings (and warrants to purchase common stock and/or preferred stock of
Holdings) for cash proceeds of approximately $85,000,000.
"Holdings Guaranty and Pledge Agreement" means the Guaranty and Pledge
Agreement, dated as of May 1, 1998, executed and delivered by an Authorized
Officer of Holdings pursuant to the Existing Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Immaterial Subsidiary" means each Subsidiary of the Company that (a)
accounted for no more than 1% of the consolidated gross revenues of the Company
and its Subsidiaries for the most recently completed Fiscal Quarter with respect
to which, pursuant to Section 7.1.1(a) or 7.1.1(b), financial statements have
been, or are required to have been, delivered by the Company on or before the
date as of which any such determination is made, as reflected in such financial
statements; and (b) has assets which represent no more than 1% of the
consolidated gross assets of the Company and its Subsidiaries as of the last day
of the most recently completed Fiscal Quarter with respect to which, pursuant to
Section 7.1.1(a) or 7.1.1(b), financial statements have been, or are required to
have been, delivered by the Company on or before the date as of which any such
determination is made, as reflected in such financial statements.
-28-
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(i) which is of a "going concern" or similar nature, (ii) which relates to the
limited scope of examination of matters relevant to such financial statement
(except, in the case of matters relating to any acquired business or assets, in
respect of the period prior to the acquisition by such Obligor of such business
or assets), or (iii) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause the
Company to be in default of any of its obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or for
the deferred purchase price of property or services (exclusive of
deferred purchase price arrangements in the nature of open or other
accounts payable owed to suppliers on normal terms in connection with
the purchase of goods and services in the ordinary course of business)
and all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance
with GAAP, all Indebtedness of the types referred to in clauses (a)
through (d) above (excluding prepaid interest thereon) secured by a
Lien (other than a Lien on the Capital Stock of an Unrestricted
Subsidiary) on property owned or being purchased by such Person
(including Indebtedness arising under conditional sales or other title
retention agreements), whether or not such Indebtedness shall have been
assumed by such Person or is limited in recourse; provided, however,
that, to the extent such Indebtedness is
-29-
limited in recourse to the assets securing such Indebtedness, the
amount of such Indebtedness shall be limited to the fair market value
of such assets; and
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Institutional Investors" means the CVC Entities and the DLJMB
Entities.
"Intercompany Loans" means, collectively, the Company Intercompany Loan
and the FMH Intercompany Loan.
"Intercompany Notes" means, collectively, the Company Intercompany Note
and the FMH Intercompany Note.
"Interest Coverage Ratio" means, at the end of any Fiscal Quarter,
subject to clause (b) of Section 1.4, the ratio computed for the period
consisting of such Fiscal Quarter and each of the three immediately prior Fiscal
Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) the cash portion of Interest Expense (for all such Fiscal
Quarters; provided that for the first three Fiscal Quarters ending
after the Original Closing Date, Interest Expense shall be determined
on an Annualized basis).
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense of the Company and its Restricted Subsidiaries for
such applicable period, as determined in accordance with GAAP, including the
portion of any payments made in respect of Capitalized Lease Liabilities
allocable to interest expense, but excluding (to the extent included in interest
expense) up-front fees and expenses and the amortization of all deferred
financing costs.
"Interest Period" means, (a) as to any LIBO Rate Loan that is a
Committed Loan, the period commencing on the Borrowing date of such Loan or on
the date on which the Loan is
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converted into or continued as a LIBO Rate Loan, and ending on the date one,
two, three, six or, if available to the applicable Lenders, nine or twelve
months thereafter as selected by the applicable Borrower in its Borrowing
Request or its Conversion/Continuation Notice, (b) as to any Uncommitted LIBO
Revolving Loan, the period commencing on the Borrowing date of such Loan and
ending on the date such integral number of weeks or months thereafter as
selected by the applicable Foreign Borrower in its Uncommitted Revolving Loan
Borrowing Request, and (c) as to any Canadian BA or Acceptance Note, the period
beginning on (and including) the date on which such Canadian BA is accepted or
rolled over pursuant to Section 2.3 or 2.6 or such Acceptance Note is issued
pursuant to Section 2.11.4 and continuing to (but excluding) the date which is
30, 60, 90 or 180 days thereafter as the Canadian Borrower may select in its
relevant notice pursuant to Section 2.3 or 2.6; provided however that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following 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 preceding Business Day;
(ii) 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 the calendar month at the
end of such Interest Period;
(iii) no Interest Period for any Loan shall extend beyond the
Stated Maturity Date for such Loan or the Revolving Loan Commitment
Termination Date, as applicable;
(iv) no Interest Period applicable to a Term Loan or portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of the Term Loans unless the aggregate
principal amount of Term Loans represented by Base Rate Loans, or by
LIBO Rate Loans having Interest Periods that will expire on or before
such date, equals or exceeds the amount of such principal payment; and
(v) there shall be no more than 20 Interest Periods in respect
of Committed Loans in effect at any one time;
provided that with respect to each Borrowing of Term Loans made on the Closing
Date, Interest Period (other than any Interest Period with respect to any
Uncommitted LIBO Loan with a duration of less than one month) means the period
commencing on the Business Day on which such Borrowing is made and ending on the
last Business Day of the month following the month in which such Borrowing is
made (or 30 days following such Business Day, as the case may be).
-31-
"Investment" means, relative to any Person, (i) any loan or advance
made by such Person to any other Person (excluding commission, travel,
relocation and similar advances to officers, directors and employees (or
individuals acting in similar capacities) made in the ordinary course of
business), or (ii) any investment, contribution or similar transfer made by such
Person for purposes of acquiring or maintaining any ownership or similar
interest in another Person or a business of another Person (whether through the
ownership or acquisition of Capital Stock, assets or otherwise, including by way
of merger, consolidation or otherwise). The amount of any Investment shall be
the original principal or capital amount thereof less all returns of principal
or equity thereon (and without adjustment by reason of the financial condition
of such other Person) and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or capital
amount equal to the fair market value of such property at the time of such
transfer or exchange.
"Investors' Agreement" means the Agreement, dated as of May 1, 1998,
among Holdings, FMH and certain other shareholders (as amended or otherwise
modified from time to time in accordance with Section 7.2.10).
"Invitation for Uncommitted Interest Quotes" means an invitation to the
Lenders having a Percentage of any Revolving Loan Commitment of greater than
zero, substantially in the form of Exhibit G-4 hereto, sent to such Lenders by
the Administrative Agent on behalf of the applicable Foreign Borrower pursuant
to Section 2.4, inviting the Lenders to submit Uncommitted Interest Quotes in
accordance with Section 2.4.3.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the applicable Borrower, substantially
in the form of Exhibit B-3 hereto.
"Issuer" means a U.S. Issuer or a Foreign Currency Issuer.
"Lender Assignment Agreement" means a Lender Assignment Agreement,
substantially in the form of Exhibit F hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to any Issuer in
respect of any Currency, such Issuer's obligation to issue Letters of Credit
denominated in such Currency pursuant to Section 2.1.3 and, with respect to each
of the other Lenders that has a Revolving Loan Commitment in respect of such
Currency, the obligation of each such Lender to participate in such Letters of
Credit pursuant to Section 2.6.1.
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"Letter of Credit Commitment Amount" means, on any date, with respect
to U.S. Letters of Credit and Foreign Currency Letters of Credit, a maximum
amount of $75,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.
"Letter of Credit Fee" is defined in Section 3.3.3.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of
(a) the U.S. Letter of Credit Outstandings on such date,
plus
(b) the U.S. Dollar Equivalent of the Foreign Currency Letter
of Credit Outstandings on such date.
"Letter of Credit Reimbursement Obligation Rate" means, in the case of
Foreign Currency Letters of Credit denominated in Canadian Dollars, French
Francs, Spanish Pesetas or British Pounds, the LIBO Rate or the Canadian BA
Rate, as applicable to Committed Canadian Revolving Loans, Committed French
Revolving Loans, Committed Spanish Revolving Loans or Committed U.K. Revolving
Loans, as the case may be, in each case made as Fixed Rate Loans in a principal
amount approximately equal to the amount of the applicable Reimbursement
Obligation and having an Interest Period of one month (or 30 days as
applicable), and in the case of Foreign Currency Letters of Credit denominated
in any other Foreign Currency, the rate set forth in the applicable Foreign
Currency Revolving Loan Commitment Addendum.
"Leverage Ratio" means, at the end of any Fiscal Quarter, subject to
clause (b) of Section 1.4, the ratio of
(a) total Debt less cash and Cash Equivalent Investments of
the Company and its Restricted Subsidiaries on a consolidated basis
outstanding at such time;
to
(b) EBITDA for the period of four consecutive Fiscal Quarters
ended on such date.
"Leverage Ratio Estimate" is defined in the definition of Applicable
Commitment Fee.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans
in any Currency, the rate of interest per annum determined by the Administrative
Agent to be the arithmetic mean (rounded upward to the next 1/100th of 1%) of
the rates of interest per annum at
-33-
which deposits in such Currency in the approximate amount of the Loan to be made
or continued as, or converted into, a LIBO Rate Loan by the Administrative Agent
(or, in the case of any LIBO Rate in respect of any LIBO Rate Loans in which the
Administrative Agent will not participate, $1,000,000 or the Foreign Currency
Equivalent thereof) and having a maturity comparable to such Interest Period
would be offered to the Administrative Agent in the London interbank market at
its request (i) in the case of LIBO Rate Loans denominated in any Currency other
than British Pounds, at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, or (ii) in the case of LIBO
Rate Loans denominated in British Pounds, at approximately 11:00 a.m., London
time, on the day such Interest Period commences.
"LIBO Rate (Additional Cost Adjusted)" means, relative to any Loan
denominated in British Pounds for any Interest Period, the LIBO Rate in respect
of such Loan for such Interest Period, adjusted for any Additional Costs.
"LIBO Rate Auction" means a solicitation of Uncommitted Interest Quotes
setting forth Uncommitted Interest Margins based on the LIBO Rate pursuant to
Section 2.4.
"LIBO Rate Loan" means a Loan in any Currency bearing interest, at all
times during an Interest Period applicable to such Loan, at a fixed rate of
interest determined by reference to the LIBO Rate for such Currency.
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan denominated
in U.S. Dollars to be made, continued or maintained as, or converted into, a
LIBO Rate Loan for any Interest Period, the rate of interest per annum (rounded
upwards to the next 1/100th of 1%) determined by the Administrative Agent as
follows:
LIBO Rate
LIBO Rate = -------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR Office" means, relative to any Lender, (i) in the case of Term
Loans or Committed Revolving Loans denominated in U.S. Dollars, British Pounds,
Canadian Dollars, French Francs or Spanish Pesetas, the office of such Lender
designated as such for such Currency on Schedule II hereto or designated in the
Lender Assignment Agreement pursuant to which such Lender became a Lender
hereunder, (ii) in the case of LIBO Rate Loans that are Committed Foreign
Currency Revolving Loans denominated in any other Foreign Currency, the office
of such Lender designated as such in the applicable Foreign Currency Revolving
Loan
-34-
Commitment Addendum or (iii) in either case, such other office of a Lender as
shall be so designated from time to time by notice from such Lender to the
Company and the Administrative Agent, which shall be making or maintaining LIBO
Rate Loans of such Lender in such Currency hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans denominated in U.S. Dollars, the percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such day
(whether or not applicable to any Lender) under regulations issued from time to
time by the F.R.S. Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
"Loan" means, as the context may require, a Revolving Loan, a Term Loan
or a Swing Line Loan, of any type and in any available Currency and shall
include without limitation the face amount of all Canadian BAs in respect of
which any Lender has not received payout in full. References herein to the
"principal amount" of a Loan shall, when referring to a Canadian BA, mean the
face amount thereof.
"Loan Document" means this Agreement, the Notes, the Letters of Credit,
each Foreign Currency Revolving Loan Commitment Addendum, each Foreign Currency
Term Loan Commitment Addendum, each Rate Protection Agreement relating to
Hedging Obligations of the Company or any of its Subsidiaries, each Uncommitted
Revolving Borrowing Addendum, each Borrowing Request, each Issuance Request, the
Fee Letter, the Administrative Agent's Fee Letter, each Pledge Agreement, the
Subsidiary Guaranty, each Mortgage (upon execution and delivery thereof), each
Security Agreement, the Affirmation and Consent and each other agreement,
document or instrument delivered in connection with this Agreement or any other
Loan Document, whether or not specifically mentioned herein or therein.
"Management Investors" mean certain current members of the management
of FMH and the Company that purchased or were granted equity interests in
Holdings on the Original Closing Date.
-35-
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of the Company
and its Restricted Subsidiaries, taken as a whole, (b) a material impairment of
the ability of the Company or any other Obligor to perform its respective
material obligations under the Loan Documents to which it is or will be a party,
or (c) an impairment of the validity or enforceability of, or a material
impairment of the rights, remedies or benefits available to the Issuers, the
Agents, the Arranger or the Lenders under, this Agreement or any other Loan
Document.
"Material Documents" means the Stock Purchase Agreement, the Investors'
Agreement and the Senior Subordinated Debt Documents, each as amended or
otherwise modified from time to time as permitted in accordance with the terms
hereof or of any other Loan Document.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means, collectively, each mortgage or deed of trust executed
and delivered pursuant to the terms of this Agreement, including clause (b) of
Section 7.1.8 or 7.1.12, in form and substance reasonably satisfactory to the
Agents.
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance by the Company or any of its Restricted Subsidiaries of any Debt (other
than Debt permitted by Section 7.2.2 as in effect on the date hereof), the
excess of
(a) the gross cash proceeds received by the Company or any of
its Restricted Subsidiaries from such incurrence, sale or issuance,
over
(b) the sum, without duplication, of (i) all reasonable and
customary underwriting commissions and legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and charges,
in each case actually incurred in connection with such incurrence, sale
or issuance, (ii) in the case of any Debt incurred, sold or issued by
any Restricted Subsidiary that is a Non-U.S. Subsidiary, any taxes or
other costs or expenses resulting from repatriating any such proceeds
to the United States, and (iii) to the extent used to refinance the
Senior Subordinated Bridge Notes, cash proceeds of the Permanent
Financing.
"Net Disposition Proceeds" means, with respect to any sale, transfer or
other disposition of any assets of the Company or any of its Restricted
Subsidiaries (other than sales permitted pursuant to clause (a) or clause (b) of
Section 7.2.9, but including any sales or issuances of Capital Stock or other
equity interests of or by any Subsidiary of the Company), the excess of
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(a) the gross cash proceeds received by the Company or any of
its Restricted Subsidiaries from any such sale, transfer or other
disposition and any cash payments received in respect of promissory
notes or other non-cash consideration delivered to the Company or such
Restricted Subsidiary in respect thereof,
over
(b) the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and charges,
in each case actually incurred in connection with such sale, transfer
or other disposition, (ii) all taxes and other governmental costs and
expenses actually paid or estimated by the Company (in good faith) to
be payable in cash in connection with such sale, transfer or other
disposition (including, in the case of a transfer, sale or other
disposition of non-U.S. assets, any such taxes or other costs or
expenses resulting from repatriating any such proceeds to the United
States), (iii) payments made by the Company or any of its Restricted
Subsidiaries to retire Indebtedness (other than the Loans) of the
Company or any of its Restricted Subsidiaries where payment of such
Indebtedness is required in connection with such sale, transfer or
other disposition and (iv) reserves for purchase price adjustments
reasonably expected to be payable by the Company and its Restricted
Subsidiaries in cash in connection therewith;
provided, however, that if, after the payment of all taxes and purchase price
adjustments with respect to such sale, transfer or other disposition, the amount
of estimated taxes or purchase price adjustments, if any, pursuant to clause
(b)(ii) or (b)(iv) above exceeded the tax or purchase price adjustment amount
actually paid in cash in respect of such sale, transfer or other disposition,
the aggregate amount of such excess shall, at such time, constitute Net
Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by the
Company, FMH or Holdings to any Person of any of its Capital Stock or any
warrants or options with respect to its Capital Stock or the exercise of any
such warrants or options after the Original Closing Date (other than pursuant to
(i) capital contributions or Capital Stock issuances (from other than a Public
Offering), (ii) any subscription agreement, incentive plan or similar
arrangement with any officer, employee or director of Holdings, FMH, the Company
or any Subsidiary of the Company, (iii) any loan by the Company, FMH or
Holdings, to such officer, employee or director solely for the purpose of
purchasing such shares pursuant to clause (h) of Section 7.2.5, (iv) proceeds
from the sale of any Capital Stock of Holdings to any officer, director or
employee of Holdings, FMH, the Company or any Subsidiary of the Company in an
aggregate amount not to exceed $15,000,000 after the Original Closing Date or
(vi) proceeds from the exercise of any options or warrants issued to any Equity
Investor or any officer, employee or director of Holdings, FMH, the Company or
any Subsidiary of the Company), the excess of
-37-
(a) the gross cash proceeds received by Holdings and its
Subsidiaries from such sale or issuance,
over
(b) the sum, without duplication, of (i) all reasonable and
customary underwriting commissions and legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and charges,
in each case actually incurred in connection with such sale or
issuance, and (ii) to the extent used to refinance the Senior
Subordinated Bridge Notes, cash proceeds of the Permanent Financing.
"Net Income" means, for any period, the net income of the Company and
its Subsidiaries for such period on a consolidated basis, excluding
extraordinary or non-recurring gains; provided, however, that the Net Income of
any Person that is, during such period, not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid to the Company or a
Restricted Subsidiary in cash during such period.
"Non-Recourse Debt" means Indebtedness (i) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against the issuer of such Indebtedness) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity, and (ii) as to which the Persons to whom such Indebtedness
is owed have acknowledged and consented, in writing, that they do not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries (other than stock of Unrestricted Subsidiaries pledged by the
Company or any Restricted Subsidiary to secure Debt of an Unrestricted
Subsidiary); provided, however, that in no event shall Indebtedness of any
Unrestricted Subsidiary fail to be Non-Recourse Debt solely as a result of any
default provisions contained in a guarantee thereof by the Company or any of its
Restricted Subsidiaries if the Company or such Restricted Subsidiary was
otherwise permitted to provide such guarantee pursuant to clause (i) of Section
7.2.2 or clause (j) of Section 7.2.5.
"Non-U.S. Lender" means any Lender (including each Assignee Lender)
that is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) an estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"Non-U.S. Subsidiary" means a Subsidiary of the Company that is not a
U.S. Subsidiary, including without limitation any Foreign Borrower.
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"Note" means, as the context may require, a Revolving Note, a Term Note
or a Swing Line Note.
"Notice of Uncommitted Revolving Borrowing" is defined in clause (a) of
Section 2.4.4.
"Notional BA Proceeds" means, with respect to any Canadian BA, the face
amount of such Canadian BA less the aggregate of:
(a) a discount from the face amount determined in accordance
with the normal market practice based on either (i) on any day, with
respect to any Canadian BA accepted by a Lender that is listed on
Schedule I to the Bank Act (Canada), the bankers' acceptance rate for
bankers' acceptances having a maturity comparable to that of such
Canadian BA as quoted on the Reuters Screen CDOR (Canadian Deposit
Offered Rate) Page (or any successor page) as of 10:00 a.m., Toronto
time, on the date of issuance of such Canadian BA or, if such rate is
not available at such time, the bankers' acceptance rate for bankers'
acceptances having a maturity comparable to those of such Canadian BA
as calculated by the Administrative Agent in accordance with normal
market practice on such day (the "CDOR Rate") or (ii) on any day, with
respect to any Canadian BA accepted by a Lender that is listed on
Schedule II to the Bank Act (Canada), the lesser of (x) the CDOR Rate
on such day plus .07% per annum and (y) the arithmetic average,
determined by the Administrative Agent, of the bankers' acceptance
rates quoted to the Administrative Agent by two Lenders selected and
agreed to by the Company and the Administrative Agent which are listed
on Schedule II to the Bank Act (Canada) as the rate at which such
Lenders would purchase at 10:00 a.m., Toronto time, on such date
bankers' acceptances having a maturity comparable to those of such
Canadian BA; and
(b) an acceptance fee calculated at the rate per annum, on the
basis of a year of 365 days or 366 days, as the case may be, equal to
the Applicable Canadian BA Stamping Fee on the face amount of such
Canadian BA for its term, being the actual number of days in the period
commencing on the date of acceptance by such Lender of such Canadian BA
and continuing to (but excluding) the maturity date of such Canadian
BA, such acceptance fee to be non-refundable and fully earned when due.
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers and the other Obligors arising under or in connection with this
Agreement and each other Loan Document.
"Obligor" means any Borrower or any other Person (other than any Agent,
the Arranger, the Issuers, the Swing Line Lender or any Lender) obligated under
any Loan Document.
"Original Closing Date" means May 1, 1998.
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"Participant" is defined in Section 11.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Company or any corporation, trade or business that is, along with the Company, a
member of a Controlled Group, has or within the prior six years has had any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five, or by reason of being deemed to be a contributing sponsor under
section 4069 of ERISA.
"Percentage" means, relative to any Lender, (i) the applicable
percentage relating to U.S. Term Loans, U.K. Term Loans or Canadian Term Loans
or Committed Revolving Loans denominated in U.S. Dollars, British Pounds,
Canadian Dollars, French Francs or Spanish Pesetas, as the case may be, as set
forth opposite its name on Schedule II hereto under the applicable column
heading or set forth in Lender Assignment Agreement(s) under the applicable
column heading or (ii) the applicable percentage relating to Spanish Term Loans
or Committed Foreign Currency Revolving Loans in any other Foreign Currency as
set forth opposite its name in a Foreign Currency Term Loan Commitment Addendum
or a Foreign Currency Revolving Loan Commitment Addendum, as applicable, or
Lender Assignment Agreement(s) under the applicable heading, in each case, as
such percentage may be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 11.11 or, in the case of a Lender's Percentage relating to
Committed Revolving Loans, pursuant to clause (h) of Section 2.1.2. A Lender
shall not have any Commitment to make Committed Revolving Loans in any Currency,
U.S. Term Loans, U.K. Term Loans, Canadian Term Loans or Spanish Term Loans (as
the case may be) if its percentage under the applicable column heading or in the
applicable Foreign Currency Revolving Loan Commitment Addendum, Foreign Currency
Term Loan Commitment Addendum or Lender Assignment Agreement is zero.
"Permanent Financing" has the meaning set forth in the Securities
Purchase Agreement dated as of the Original Closing Date in respect of the
Senior Subordinated Bridge Notes.
"Permitted Refinancing" means, relative to any Indebtedness, any other
Indebtedness which is incurred to repay and retire in full such refinanced
Indebtedness and all other monetary obligations in respect of such refinanced
Indebtedness; provided, however, that (a) the weighted average life of such
refinancing Indebtedness shall not be less than the weighted average life on the
date of such refinancing of such refinanced Indebtedness; and (b) the
refinancing Indebtedness shall not contain terms and conditions that, taken as a
whole, make the refinancing Indebtedness materially more burdensome to the
Company or Restricted Subsidiaries, or
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materially more detrimental to the Lenders (including without limitation with
respect to the subordination provisions contained therein) than the terms in
effect on the date of such refinancing of the refinanced Indebtedness.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the Company
Pledge Agreement, the FMH Guaranty and Pledge Agreement, the Holdings Guaranty
and Pledge Agreement, the Subsidiary Pledge Agreement or any Foreign Subsidiary
Pledge Supplement.
"Pro Forma Balance Sheet" is defined in Section 5.1.8.
"Public Offering" means with respect to any Person, any sale after the
Closing Date of the Capital Stock of such Person to the public pursuant to any
primary offering registered under the Securities Act of 1933.
"Purchased Foreign Subsidiaries" means Formica Nederland BV, Formica
Italia SRL and Formica (▇▇▇▇▇▇▇▇) AG.
"Quarterly Payment Date" means the last day of each of March, June,
September and December, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing with June 30, 1998.
"Rate Protection Agreement" means, collectively, any interest rate or
currency swap agreements and interest or currency exchange rate cap, collar or
similar agreement entered into by the Company pursuant to the terms of this
Agreement under which the counterparty to such agreement is (or, at the time
such Rate Protection Agreement was entered into, was) a Lender or an Affiliate
of a Lender.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in clause (b) of Section 2.9.
"Reimbursement Obligation" is defined in Section 2.8.3.
"Release" means a "release", as such term is defined in CERCLA.
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"Replacement Lender" is defined in Section 4.11.
"Replacement Notice" is defined in Section 4.11.
"Required Lenders" means, at any time, (i) prior to the Closing Date,
Lenders having at least 51% of the sum of the Revolving Loan Commitments and
Term Loan Commitments, and (ii) on and after the Closing Date, Lenders holding
at least 51% of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Restricted Agreements" is defined in Section 7.2.10.
"Restricted Payments" is defined in Section 7.2.6.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Revolving Loan" means a U.S. Revolving Loan or a Foreign Currency
Revolving Loan.
"Revolving Loan Commitment" means a U.S. Revolving Loan Commitment or a
Foreign Currency Revolving Loan Commitment.
"Revolving Loan Commitment Amount" means the U.S. Revolving Loan
Commitment Amount or a Foreign Currency Revolving Loan Commitment Amount.
"Revolving Loan Commitment Termination Date" means the earliest of (i)
July 31, 1998, if the Term Loans have not been made on or prior to such date,
(ii) the sixth anniversary of the Original Closing Date, (iii) the date on which
any Revolving Loan Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2, and (iv) the date on which any Commitment Termination
Event occurs.
"Revolving Note" means a promissory note of any Borrower payable to any
Lender, substantially in the form of Exhibit A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of such Borrower to such Lender resulting from
outstanding Revolving Loans in the applicable Currency, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc.
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"Secured Parties" means, collectively, the Lenders, the Issuers, the
Agents and all Affiliates of the Lenders which may be party to any Loan Document
(including any Rate Protection Agreement).
"Security Agreement" means, as the context may require, the Company
Security Agreement or the Subsidiary Security Agreement.
"Senior Subordinated Bridge Notes" means the $200,000,000 senior
subordinated bridge notes issued by the Borrower on the Original Closing Date.
"Senior Subordinated Bridge Note Issuance" means the issuance by the
Company of the Senior Subordinated Bridge Notes on May 1, 1998.
"Senior Subordinated Debt" means (i) the Senior Subordinated Bridge
Notes, (ii) any Permitted Refinancing thereof and (iii) up to an aggregate
principal amount of $15,000,000 of additional Indebtedness with terms and
conditions substantially similar to the Senior Subordinated Bridge Notes or any
Permitted Refinancing thereof.
"Senior Subordinated Debt Document" means all instruments, agreements
or other documents evidencing or governing any Senior Subordinated Debt or
pursuant to which any Senior Subordinated Debt has been issued.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) 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, and
(d) such Person is not engaged in business or a transaction, and such Person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.
"Spanish Loan" means, as the context may require, a Committed Spanish
Revolving Loan or a Spanish Term Loan.
"Spanish Pesetas" means the lawful currency of the Kingdom of Spain.
"Spanish Revolver Borrower" is defined in the preamble.
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"Spanish Revolving Loan Commitment" is defined in clause (c) of Section
2.1.2.
"Spanish Revolving Loan Commitment Amount" means $5,000,000 (with
Spanish Revolving Loans to be denominated in Spanish Pesetas), as such amount
may be modified pursuant to the terms hereof.
"Spanish Term Borrower" means, in the event a Spanish Term Loan
Commitment is provided, a wholly-owned Subsidiary of the Company organized under
the laws of the Kingdom of Spain that is so designated by the Company.
"Spanish Term Loan Commitment" is defined in clause (d) of Section
2.1.1.
"Spanish Term Loan Commitment Amount" means, in the event a Spanish
Term Loan Commitment is provided, the amount (expressed in U.S. Dollars) set
forth as the committed amount in the Foreign Currency Term Loan Commitment
Addendum in respect of such Spanish Term Loan Commitment (representing a
commitment to make Term Loans denominated in Spanish Pesetas), as such amount
may be modified pursuant to the terms hereof.
"Spanish Term Loans" is defined in clause (d) of Section 2.1.1.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.8.
"Stated Maturity Date" means (i) in the case of any Committed Loan, the
sixth anniversary of the Original Closing Date and (ii) in the case of any
Uncommitted Revolving Loan, the earlier of (x) the Stated Maturity Date for
Committed Revolving Loans and (y) the maturity date that shall have been agreed
between the applicable Foreign Borrower and the Lender or Lenders that shall
have made, or offered or agreed to make, such Uncommitted Revolving Loan, or, in
the case of any such day that is not a Business Day, the first Business Day
following such day.
"Stock Purchase Agreement" means the Share Sale and Purchase Agreement,
dated March 16, 1998 (as amended or otherwise modified from time to time in
accordance with Section 7.2.10) among BTR Australia Ltd. and Holdings.
"Subordination Provisions" is defined in Section 8.1.1.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership
-44-
interests) having ordinary voting power to elect a majority of the board of
directors, managers or other voting members of the governing body of such entity
(irrespective of whether at the time Capital Stock (or other ownership
interests) of any other class or classes of such entity shall or might have
voting power upon the occurrence of any contingency) is at the time directly or
indirectly owned by such Person, by such Person and one or more other
Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person.
"Subsidiary Guarantor" means, on the Original Closing Date, each U.S.
Subsidiary of the Company (other than the Trademark Subsidiary and any
Unrestricted Subsidiary) and, thereafter, each U.S. Subsidiary of the Company
that is required, pursuant to clause (b) of Section 7.1.7, to execute and
deliver a Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty, dated as of May 1, 1998,
executed and delivered by an Authorized Officer of each Subsidiary Guarantor
pursuant to the Existing Credit Agreement, as such Guaranty may be supplemented
from time to time by each future Subsidiary Guarantor pursuant to Section 7.1.7,
as amended, supplemented, amended and restated or otherwise modified from time
to time.
"Subsidiary Pledge Agreement" means the Pledge Agreement, dated as of
May 1, 1998, executed and delivered by an Authorized Officer of certain U.S.
Subsidiaries of the Company signatory thereto pursuant to the Existing Credit
Agreement, as such Pledge Agreement may be supplemented from time to time by
each future U.S. Subsidiary of the Company pursuant to Section 7.1.7, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Subsidiary Security Agreement" means the Security Agreement, dated as
of May 1, 1998, executed and delivered by an Authorized Officer of the U.S.
Subsidiaries of the Company (other than the Trademark Subsidiary and any
Unrestricted Subsidiary) pursuant to the Existing Credit Agreement, as such
Security Agreement may be supplemented from time to time by each future U.S.
Subsidiary of the Company pursuant to Section 7.1.7, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Swing Line Lender" means the Administrative Agent in its capacity as
Swing Line Lender hereunder.
"Swing Line Loan" is defined in clause (g) of Section 2.1.2.
"Swing Line Loan Commitment" is defined in clause (g) of Section 2.1.2.
"Swing Line Loan Commitment Amount" means, on any date, $10,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
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"Swing Line Note" means a promissory note of the Company payable to the
Swing Line Lender, in the form of Exhibit A-3 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Company to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to Section 9.4.
"Taxes" is defined in Section 4.6.
"Term Loan" means a U.S. Term Loan or a Foreign Currency Term Loan.
"Term Loan Commitment" means, as the context may require, a U.S. Term
Loan Commitment or a Foreign Currency Term Loan Commitment.
"Term Loan Commitment Amount" means the U.S. Term Loan Commitment
Amount or a Foreign Currency Term Loan Commitment Amount.
"Term Loan Commitment Termination Date" means the earliest of (i) July
31, 1998, if the Term Loans have not been made on or prior to such date, (ii)
the Closing Date (immediately after the making of the Term Loans on such date),
and (iii) the date on which any Commitment Termination Event occurs.
"Term Note" means a promissory note of any Borrower payable to the
order of any Lender, in the form of Exhibit A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of such Borrower to such Lender resulting from
outstanding Term Loans in the applicable Currency, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Total Exposure Amount" means, at any time,
(a) with respect to any provision of this Agreement other than
the declaration of the acceleration of the maturity of all or any
portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable pursuant to Section 8.3, the sum of
(i) the aggregate principal amount of all Term Loans outstanding at
such time (included, in the case of any Foreign Currency Term Loan, at
the U.S. Dollar Equivalent thereof) and (ii) (x) the Total Revolving
Loan Commitment Amount if there are any Revolving Loan Commitments then
outstanding or (y) if all Revolving Loan Commitments shall have expired
or been terminated, the sum of (1) the aggregate
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principal amount of all Revolving Loans and Swing Line Loans
outstanding at such time (included, in the case of any Foreign Currency
Revolving Loan, at the U.S. Dollar Equivalent thereof) and (2) the
Letter of Credit Outstandings at such time; and
(b) with respect to the declaration of the acceleration of the
maturity of all or any portion of the outstanding principal amount of
the Loans and other Obligations to be due and payable pursuant to
Section 8.3, the sum of (i) the aggregate principal amount of all Loans
outstanding at such time (included, in the case of any Foreign Currency
Loan, at the U.S. Dollar Equivalent thereof) and (y) the Letter of
Credit Outstandings at such time.
"Total Foreign Currency Revolving Loan Commitment Amount" means, at any
time, the aggregate of all Foreign Currency Revolving Loan Commitment Amounts at
such time.
"Total Revolving Loan Commitment Amount" means, with respect to the
U.S. Revolving Loan Commitments and all Foreign Currency Revolving Loan
Commitments, on any date, $120,000,000, as such amount may be increased from
time to time pursuant to clause (h) of Section 2.1.2 or reduced from time to
time pursuant to Section 2.2.
"Trademark Subsidiary" means a wholly-owned Restricted Subsidiary of
the Company that is designated as such by the Company and that conducts no
business activity other than that directly connected with the ownership or
licensing of trademarks, trade names, trade secrets, trade dress, service marks,
patents, copyrights, mask works and other intellectual property associated with
the Formica Business and the licensing of such trademarks, trade names, trade
secrets, trade dress, service marks, patents, copyrights, mask works and other
intellectual property associated with the Formica Business to the Company and
its Restricted Subsidiaries and the lending of the proceeds thereof to the
Company and its Restricted Subsidiaries.
"Tranche" means, as the context may require, the Loans constituting
U.S. Term Loans, U.K. Term Loans, Canadian Term Loans, Spanish Term Loans, U.S.
Revolving Loans, Committed Canadian Revolving Loans, Committed French Revolving
Loans, Committed Spanish Revolving Loans, Committed U.K. Revolving Loans, other
Committed Foreign Currency Revolving Loans in a particular Currency, Uncommitted
Revolving Loans of a particular Borrowing or Swing Line Loans.
"Transaction" means the Capital Transactions and the Acquisition
Transactions.
"Transaction Documents" means each of the Material Documents and all
other agreements, documents, instruments, certificates, filings, consents,
approvals, board of directors resolutions and opinions furnished pursuant to or
in connection with the Transaction or any other transaction contemplated hereby
or thereby, each as amended, supplemented, amended and
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restated or otherwise modified from time to time as permitted in accordance with
the terms hereof or of any other Loan Document.
"type" means, (i) relative to any Loan, the portion thereof, if any,
being maintained as a Base Rate Loan or a Fixed Rate Loan, and, (ii) relative to
any Uncommitted Revolving Loan, whether such Uncommitted Revolving Loan is an
Uncommitted Absolute Rate Revolving Loan or an Uncommitted LIBO Revolving Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"U.K. Loan" means, as the context may require, a Committed U.K.
Revolving Loan or a U.K. Term Loan.
"U.K. Revolver Borrower" is defined in the preamble.
"U.K. Revolving Loan Commitment" is defined in clause (b) of Section
2.1.2.
"U.K. Revolving Loan Commitment Amount" means $5,000,000 (with U.K.
Revolving Loans to be denominated in British Pounds), as such amount may be
modified pursuant to the terms hereof.
"U.K. Term Borrower" is defined in the preamble.
"U.K. Term Loan Commitment" is defined in clause (b) of Section 2.1.1.
"U.K. Term Loan Commitment Amount" means $40,000,000 (with U.K. Term
Loans to be denominated in British Pounds).
"U.K. Term Loans" is defined in clause (b) of Section 2.1.1.
"Uncommitted Absolute Interest Rate" is defined in clause (b)(v) of
Section 2.4.3.
"Uncommitted Absolute Rate Revolving Loan" means a loan made or to be
made by a Lender pursuant to an Absolute Rate Auction.
"Uncommitted Interest Margin" is defined in clause (b)(iv) of Section
2.4.3.
"Uncommitted Interest Quote" means an offer by a Lender to make an
Uncommitted Revolving Loan in accordance with Section 2.4.
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"Uncommitted Interest Rate" means, with respect to any Uncommitted
Revolving Loan, the interest rate per annum for such Uncommitted Revolving Loan,
as agreed to and accepted by the applicable Foreign Borrower and the Lender that
shall have made or offered or agreed to make such Uncommitted Revolving Loan,
pursuant to Section 2.4.
"Uncommitted LIBO Revolving Loans" means a loan made or to be made by a
Lender pursuant to a LIBO Rate Auction.
"Uncommitted Revolving Borrowing Addendum" shall mean an addendum to
this Agreement executed by the Administrative Agent and a Non-U.S. Subsidiary,
substantially in the form of Exhibit G-3 hereto, delivered pursuant to clause
(c) of Section 5.3.
"Uncommitted Revolving Loan" means an Uncommitted Absolute Rate
Revolving Loan or an Uncommitted LIBO Revolving Loan.
"Uncommitted Revolving Loan Borrowing" shall mean a Borrowing of
Uncommitted Revolving Loans made by each of the Lenders whose offer to make such
Uncommitted Revolving Loans as part of such Borrowing has been accepted by the
applicable Foreign Borrower pursuant to Section 2.4.4.
"Uncommitted Revolving Loan Borrowing Request" shall mean a loan
request and certificate requesting Uncommitted Revolving Loans, duly executed by
an Authorized Officer of the applicable Foreign Borrower, substantially in the
form of Exhibit B-2 hereto, delivered pursuant to Section 2.4.1.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by a resolution of the Board of Directors of the Company as an
Unrestricted Subsidiary, but only to the extent that such Subsidiary: (i) has no
Indebtedness other than Non-Recourse Debt; (ii) is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; (iii) is a Person with respect to which
neither the Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional Capital Stock or warrants,
options or other rights to acquire Capital Stock or (b) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results; and (iv) has no Indebtedness which has
been guaranteed by, or otherwise directly or indirectly received any credit
support for any such Indebtedness from, the Company
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or any of its Restricted Subsidiaries. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes hereof. The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if no Default or Event
of Default would be in existence following such designation.
"U.S. Dollar" and the sign "$" mean the lawful currency of the United
States.
"U.S. Dollar Equivalent" means the Exchange Equivalent in U.S. Dollars
of any amount of the applicable Foreign Currency.
"U.S. Issuer" means (i) Bankers Trust Company, in its capacity as
issuer of U.S. Letters of Credit, and (ii) any Lender as may be designated by
the Company (and consented to by the Agents and such Lender, such consent by the
Agents not to be unreasonably withheld) in its capacity as issuer of U.S.
Letters of Credit.
"U.S. Letter of Credit" means a Letter of Credit denominated in U.S.
Dollars.
"U.S. Letter of Credit Commitment" means a Letter of Credit Commitment
in respect of U.S. Letters of Credit.
"U.S. Letter of Credit Commitment Amount" means, on any date the Letter
of Credit Commitment Amount on such date less the aggregate Foreign Currency
Letter of Credit Commitment Amount on such date.
"U.S. Letter of Credit Outstandings" means, on any date, an amount
equal to the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding U.S. Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of U.S. Letters of Credit.
"U.S. Loan" means, as the context may require, a U.S. Revolving Loan or
a U.S. Term Loan.
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"U.S. Subsidiary" means any Subsidiary of the Company that is
incorporated or organized in or under the laws of the United States or any state
thereof.
"U.S. Revolving Loans" is defined in clause (a) of Section 2.1.2.
"U.S. Revolving Loan Commitment" is defined in clause (a) of Section
2.1.2.
"U.S. Revolving Loan Commitment Amount" means, on any date, the Total
Revolving Loan Commitment Amount on such date less the Total Foreign Currency
Revolving Loan
Commitment Amount on such date.
"U.S. Term Loans" is defined in clause (a) of Section 2.1.1.
"U.S. Term Loan Commitment" is defined in clause (a) of Section 2.1.1.
"U.S. Term Loan Commitment Amount" means $35,000,000.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
"Waiver" means an agreement in favor of the Agents for the benefit of
the Lenders in form and substance reasonably satisfactory to the Agents.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA, and to which the Company has any liability.
"wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or more
wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each other Loan Document, notice and other communication delivered from time to
time in connection with this Agreement or any other Loan Document.
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SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations.
(a) Unless otherwise specified, all accounting terms used herein or in
any other Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder (including under Section 7.2.4) shall be
made, and all financial statements required to be delivered hereunder or
thereunder shall be prepared, in accordance with those generally accepted
accounting principles ("GAAP") as in effect in the United States on December 31,
1997 and, unless otherwise expressly provided herein, shall be computed or
determined on a consolidated basis and without duplication.
(b) For purposes of computing the Fixed Charge Coverage Ratio, Interest
Coverage Ratio and Leverage Ratio (and any financial calculations required to be
made or included within such ratios) as of the end of any Fiscal Quarter, all
components of such ratios (other than Capital Expenditures) for the period of
four Fiscal Quarters ending at the end of such Fiscal Quarter shall include,
without duplication, such components of such ratios attributable to any business
or assets that have been acquired or disposed of by the Company or any of its
Subsidiaries (including through mergers or consolidations) after the first day
of such period of four Fiscal Quarters and prior to the end of such period, as
determined in good faith by the Company on a pro forma basis for such period of
four Fiscal Quarters as if such acquisition had occurred on such first day of
such period (including, whether or not such inclusion would be permitted under
GAAP or Regulation S-X of the Securities and Exchange Commission, cost savings
that would have been realized had such acquisition occurred on such day).
(c) Unless the context otherwise requires, for purposes of determining
the outstanding principal amount of Loans or Letter of Credit Outstandings
denominated in a Foreign Currency (including without limitation pursuant to
Section 3.1.2), the term "pro rata" as used in this Agreement shall be based
upon the U.S. Dollar Equivalent of the particular Foreign Currency at the time
of determination.
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ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Sections 2.1.4, 2.1.5 and Article V),
(a) each Lender severally agrees to make Loans (other than
Swing Line Loans) pursuant to each of its Commitments, and the Swing
Line Lender agrees to make Swing Line Loans (to be denominated in U.S.
Dollars only) pursuant to the Swing Line Loan Commitment, in each case
as described in this Section 2.1 and each applicable Lender agrees to
accept Canadian BAs in accordance with the terms hereof; and
(b) each Issuer that has a Letter of Credit Commitment in
respect of any Currency severally agrees that it will issue Letters of
Credit denominated in such Currency pursuant to Section 2.1.3, and each
other Lender that has a Revolving Loan Commitment in respect of such
Currency severally agrees that it will purchase participation interests
in such Letters of Credit pursuant to Section 2.8.1.
Any term or provision of this Agreement or any other Loan Document (including
this Article II or Article III hereof) to the contrary notwithstanding, (i) all
Foreign Currency Loans shall be made in the applicable Foreign Currency and
shall be repaid in the same Foreign Currency in which such Loans were made and
(ii) all Foreign Currency Letters of Credit shall be issued, and all
Reimbursement Obligations in respect of Foreign Currency Letters of Credit shall
be paid, in the applicable Foreign Currency.
SECTION 2.1.1. Term Loan Commitments. Subject to compliance by the
Company with the terms of Sections 2.1.4, 5.1 and 5.2.1, and compliance by the
applicable Borrower with the terms of Section 5.2.2,
(a) on (but solely on) the Closing Date (which shall be a
Business Day), each Lender having a Percentage of the U.S. Term Loan
Commitment in excess of zero will make loans denominated in U.S.
Dollars (relative to such Lender, its "U.S. Term Loans") to the Company
equal to such Lender's Percentage, if any, of the aggregate amount of
the Borrowing or Borrowings of U.S. Term Loans requested by the Company
to be made on the Closing Date (with the commitment of each such Lender
described in this clause (a) herein referred to as its "U.S. Term Loan
Commitment");
(b) on (but solely on) the Closing Date (which shall be a
Business Day), each Lender having a Percentage of the U.K. Term Loan
Commitment in excess of zero will
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make loans denominated in British Pounds (relative to such Lender, its
"U.K. Term Loans") to the U.K. Term Borrower, equal to such Lender's
Percentage, if any, of the aggregate amount of the Borrowing or
Borrowings of U.K. Term Loans requested by the U.K. Term Borrower to be
made on the Closing Date (with the commitment of each such Lender
described in this clause (b) herein referred to as its "U.K. Term Loan
Commitment");
(c) on (but solely on) the Closing Date (which shall be a
Business Day), each Lender having a Percentage of the Canadian Term
Loan Commitment in excess of zero will make loans (or accept Canadian
BAs) denominated in Canadian Dollars (relative to such Lender, its
"Canadian Term Loans") to the Canadian Borrower, equal to such Lender's
Percentage, if any, of the aggregate amount of the Borrowing or
Borrowings of Canadian Term Loans requested by the Canadian Borrower to
be made on the Closing Date (with the commitment of each such Lender
described in this clause (c) herein referred to as its "Canadian Term
Loan Commitment"); and
(d) in the event the Administrative Agent has received a
Foreign Currency Term Loan Commitment Addendum in respect of a Spanish
Term Loan Commitment, each Lender having a Percentage of the Spanish
Term Loan Commitment in excess of zero will, subject to satisfaction of
the conditions set forth in Section 5.3, make loans denominated in
Spanish Pesetas (relative to such Lender, its "Spanish Term Loans") to
the Spanish Term Borrower equal to such Lender's Percentage, if any, of
the aggregate amount of the Borrowing or Borrowings of Spanish Term
Loans requested by the Spanish Term Borrower to be made on the Closing
Date (with the commitment of each such Lender described in this clause
(d) herein referred to as its "Spanish Term Loan Commitment").
No amounts paid or prepaid with respect to Term Loans may be reborrowed.
SECTION 2.1.2. Revolving Loan Commitments and Swing Line Loan
Commitment. Subject to compliance by the Company with the terms of Sections
2.1.4, 5.1 and Section 5.2.1, and compliance by the applicable Borrower with the
terms of Section 5.2.2 (and, in the case of any Foreign Borrower other than the
U.K. Revolver Borrower, the Canadian Borrower, the French Revolver Borrower or
the Spanish Revolver Borrower, compliance by the applicable Foreign Borrower
with the terms of Section 5.3), from time to time on any Business Day occurring
concurrently with (or after) the making of the Term Loans but prior to the
Revolving Loan Commitment Termination Date,
(a) each Lender that has a Percentage of the U.S. Revolving
Loan Commitment in excess of zero will make loans denominated in U.S.
Dollars (relative to such Lender, its "U.S. Revolving Loans") to the
Company equal to such Lender's Percentage, if any, of
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the aggregate amount of the Borrowing or Borrowings of U.S. Revolving
Loans requested by the Company to be made on such day (with the
commitment of each such Lender described in this clause (a) herein
referred to as its "U.S. Revolving Loan Commitment"). On the terms and
subject to the conditions hereof, the Company may from time to time
borrow, prepay and reborrow U.S. Revolving Loans;
(b) each Lender that has a Percentage of the U.K. Revolving
Loan Commitment in excess of zero will make loans denominated in
British Pounds (relative to such Lender, its "Committed U.K. Revolving
Loans") to the U.K. Revolver Borrower equal to such Lender's
Percentage, if any, of the aggregate amount of the Borrowing or
Borrowings of Committed U.K. Revolving Loans requested by the U.K.
Revolver Borrower to be made on such day (with the commitment of each
such Lender described in this clause (b) herein referred to as its
"U.K. Revolving Loan Commitment"). On the terms and subject to the
conditions hereof, the U.K. Revolver Borrower may from time to time
borrow, prepay and reborrow Committed U.K. Revolving Loans;
(c) each Lender that has a Percentage of the Spanish Revolving
Loan Commitment in excess of zero will make loans denominated in
Spanish Pesetas (relative to such Lender, its "Committed Spanish
Revolving Loans") to the Spanish Revolver Borrower equal to such
Lender's Percentage, if any, of the aggregate amount of the Borrowing
or Borrowings of Committed Spanish Revolving Loans requested by the
Spanish Revolver Borrower to be made on such day (with the commitment
of each such Lender described in this clause (c) herein referred to as
its "Spanish Revolving Loan Commitment"). On the terms and subject to
the conditions hereof, the Spanish Revolver Borrower may from time to
time borrow, prepay and reborrow Committed Spanish Revolving Loans;
(d) each Lender that has a Percentage of the French Revolving
Loan Commitment in excess of zero will make loans denominated in French
Francs (relative to such Lender, its "Committed French Revolving
Loans") to the French Revolver Borrower equal to such Lender's
Percentage, if any, of the aggregate amount of the Borrowing or
Borrowings of Committed French Revolving Loans requested by the French
Revolver Borrower to be made on such day (with the commitment of each
such Lender described in this clause (d) herein referred to as its
"French Revolving Loan Commitment"). On the terms and subject to the
conditions hereof, the French Revolver Borrower may from time to time
borrow, prepay and reborrow Committed French Revolving Loans;
(e) each Lender that has a Percentage of the Canadian
Revolving Loan Commitment in excess of zero will make loans (or accept
Canadian BAs) denominated in Canadian Dollars (such loans and Canadian
BAs relative to such Lender, its "Committed Canadian Revolving Loans")
to the Canadian Borrower equal to such Lender's
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Percentage, if any, of the aggregate amount of the Borrowing or
Borrowings of Committed Canadian Revolving Loans requested by the
Canadian Borrower to be made on such day (with the commitment of each
such Lender described in this clause (e) herein referred to as its
"Canadian Revolving Loan Commitment"). On the terms and subject to the
conditions hereof, the Canadian Borrower may from time to time borrow,
prepay (or, in the case of Canadian BA's, cash collateralize) and
reborrow Committed Canadian Revolving Loans;
(f) in the event any other Foreign Currency Revolving Loan
Commitment is created pursuant to Section 2.5, each Lender having a
Percentage of such Foreign Currency Revolving Loan Commitment in excess
of zero will make Committed Foreign Currency Revolving Loans
denominated in the applicable Foreign Currency to the applicable
Foreign Borrower equal to such Lender's Percentage of the aggregate
amount of the Borrowing or Borrowings of Committed Foreign Currency
Revolving Loans requested by such Foreign Borrower under such Foreign
Currency Revolving Loan Commitment to be made on such day. On the terms
and subject to the conditions hereof and of the applicable Foreign
Currency Revolving Loan Commitment Addendum, the applicable Foreign
Borrower may from time to time borrow, prepay and reborrow Committed
Foreign Currency Revolving Loans under such Foreign Currency Revolving
Loan Commitment;
(g) the Swing Line Lender will make loans denominated in U.S.
Dollars ("Swing Line Loans") to the Company equal to the principal
amount of Swing Line Loans requested by the Company to be made on such
day (with the commitment of the Swing Line Lender described in this
clause (g) herein referred to as its "Swing Line Loan Commitment"). On
the terms and subject to the conditions hereof, the Company may from
time to time borrow, prepay and reborrow Swing Line Loans; and
(h) at any time that no Default has occurred and is
continuing, the Company may, by notice to the Agents, request that, on
the terms and subject to the conditions contained in this Agreement,
the Lenders and/or other financial institutions not then a party to
this Agreement provide up to an aggregate amount of $25,000,000 in
additional Revolving Loan Commitments denominated in any Currency or
Currencies. Upon receipt of such notice, the Syndication Agent shall
use its best commercially reasonable efforts to arrange for the Lenders
or other financial institutions to provide such additional Revolving
Loan Commitments; provided that the Syndication Agent will first offer
each of the Lenders that then has a Percentage of any Revolving Loan
Commitments a pro rata portion (based upon the Total Revolving Loan
Commitment Amount at such time) of any such additional Revolving Loan
Commitment. Alternatively, any Lender may commit to provide the full
amount of the requested additional Revolving Loan Commitment and then
offer portions of such additional Revolving Loan Commitment to the
other Lenders
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or other financial institutions, subject to the proviso in the
immediately preceding sentence. Nothing contained in this clause (h) or
otherwise in this Agreement is intended to commit any Lender or any
Agent to provide any portion of any such additional Revolving Loan
Commitments. If and to the extent that any Lenders and/or other
financial institutions agree, in their sole discretion, to provide any
such additional Revolving Loan Commitments, (i) the Total Revolving
Loan Commitment Amount and the U.S. Revolving Loan Commitment Amount or
the Foreign Currency Revolving Loan Commitment Amount, as the case may
be, shall be increased by the amount of the additional U.S. Revolving
Loan Commitments or Foreign Currency Revolving Loan Commitments, as the
case may be, agreed to be so provided, (ii) the Percentages of the
respective Lenders in respect of the U.S. Revolving Loan Commitment
and/or Foreign Currency Revolving Loan Commitments, as the case may be,
shall be proportionally adjusted, as applicable, (iii) at such time and
in such manner as the Company and the Syndication Agent shall agree (it
being understood that the Company and the Agents will use their best
commercially reasonable efforts to avoid the prepayment or assignment
of any Fixed Rate Loan on a day other than the last day of the Interest
Period applicable thereto), the Lenders shall assign and assume
outstanding Committed Revolving Loans and participations in outstanding
Letters of Credit so as to cause the amount of such Committed Revolving
Loans and participations in Letters of Credit held by each Lender to
conform to the respective percentages of the applicable Revolving Loan
Commitments of the Lenders and (iv) the Company shall execute and
deliver any additional Notes or other amendments or modifications to
this Agreement or any other Loan Document as the Agents may reasonably
request.
SECTION 2.1.3. Letter of Credit Commitment. Subject to compliance by
the Company with the terms of Sections 2.1.5, 5.1 and 5.2.1 and compliance by
the applicable Borrower with Section 5.2.2 (and, in the case of any Foreign
Borrower other than the U.K. Revolver Borrower, the Canadian Borrower, the
French Revolver Borrower or the Spanish Revolver Borrower, compliance by the
applicable Foreign Borrower with the terms of Section 5.3), from time to time on
any Business Day occurring concurrently with (or after) the Closing Date but
prior to the Revolving Loan Commitment Termination Date, the applicable Issuer
will (i) issue one or more standby or commercial letters of credit on a sight
basis and denominated in the applicable Currency (each referred to as a "Letter
of Credit") for the account of the Company or any of its Subsidiaries in the
Stated Amount requested by the applicable Borrower on such day, to expire, in
the case of standby Letters of Credit on a date not later than the date that is
five Business Days prior to the sixth anniversary of the Original Closing Date
and not later than one year from the date of such issuance, and, in the case of
commercial Letters of Credit, on a date not later than the date that is thirty
Business Days prior to the sixth anniversary of the Original Closing Date and
not later than 180 days from the date of such issuance, or (ii) extend the
Stated Expiry Date of an existing standby or commercial Letter of Credit
previously issued hereunder, in the case of standby Letters of Credit, to a date
not later than the date that is five Business Days prior to the
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sixth anniversary of the Original Closing Date and not later than one year from
the date of the Stated Expiry Date, and, in the case of commercial Letters of
Credit, to a date not later than the date that is thirty Business Days prior to
the sixth anniversary of the Original Closing Date and not later than 180 days
from the Stated Expiry Date; provided that a standby Letter of Credit may, if
required by the beneficiary thereof, contain "evergreen" provisions pursuant to
which the Stated Expiry Date shall be automatically extended, unless notice to
the contrary shall have been given to the beneficiary by the applicable Issuer
of such Letter of Credit more than a specified period prior to the then existing
Stated Expiry Date.
SECTION 2.1.4. Lenders Not Permitted or Required to Make the Loans. No
Lender shall be permitted or required to, and the applicable Borrower shall not
request any Lender to, make
(a) any U.S. Term Loan, U.K. Term Loan, Canadian Term Loan or
Spanish Term Loan if, after giving effect thereto, the aggregate
original principal amount (calculated at the U.S. Dollar Equivalent
thereof in the case of any Foreign Currency Term Loans) of all such
Term Loans of such Lender would exceed such Lender's Percentage of the
applicable Term Loan Commitment Amount;
(b) any U.S. Revolving Loan, Committed U.K. Revolving Loan,
Committed Spanish Revolving Loan, Committed French Revolving Loan,
Committed Canadian Revolving Loan or other Committed Foreign Currency
Revolving Loan if, after giving effect thereto, the aggregate
outstanding principal amount (calculated at the U.S. Dollar Equivalent
thereof in the case of any Foreign Currency Revolving Loans) of all of
such Lender's Committed Revolving Loans of such Tranche, together with
such Lender's Percentage of the aggregate amount of all Letter of
Credit Outstandings of such Tranche and, in the case of U.S. Revolving
Loans, such Lender's Percentage of the outstanding principal amount of
all Swing Line Loans, would exceed such Lender's applicable Percentage
of the then existing Revolving Loan Commitment Amount in respect of
such Tranche; or
(c) in the case of the Swing Line Lender, any Swing Line Loan
if, after giving effect thereto, the aggregate outstanding principal
amount of all Swing Line Loans would exceed the lesser of (x) the then
existing Swing Line Loan Commitment Amount and (y) an amount equal to
(i) the then existing U.S. Revolving Loan Commitment Amount less (ii)
the sum of the aggregate outstanding principal amount of all U.S.
Revolving Loans and U.S. Letter of Credit Outstandings.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue, extend or renew any
Letter of Credit if, after giving effect thereto, (a) the Letter of Credit
Outstandings would exceed the then existing Letter of Credit
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Commitment Amount or (b) the aggregate amount of all Letter of Credit
Outstandings in respect of the applicable Tranche (plus, in the case of U.S.
Dollar Letters of Credit only, the aggregate principal amount of all Swing Line
Loans then outstanding) would exceed (x) the then existing Revolving Loan
Commitment Amount in respect of such Tranche less (y) the sum of the aggregate
amount of all Committed Revolving Loans in such Currency.
SECTION 2.2. Optional Reduction of the Revolving Loan Commitment
Amounts. The Company may, from time to time on any Business Day occurring after
the Closing Date, voluntarily reduce any Revolving Loan Commitment Amount;
provided, however, that all such reductions shall require at least three
Business Days' prior notice to the Administrative Agent and be permanent, and
any partial reduction of any Revolving Loan Commitment Amount shall be in a
minimum amount of $500,000 or any larger integral multiple of $100,000. Any such
reduction of any Revolving Loan Commitment Amount which reduces such Revolving
Loan Commitment Amount below the Letter of Credit Commitment Amount with respect
to the same Currency, if applicable, (or, in the case of the U.S. Revolving Loan
Commitment only, the Swing Line Loan Commitment Amount) shall result in an
automatic and corresponding reduction of such Letter of Credit Commitment Amount
(or the Swing Line Loan Commitment Amount, as the case may be) to an aggregate
amount not in excess of the applicable Revolving Loan Commitment Amount, as so
reduced, without any further action on the part of the applicable Issuer (or the
Swing Line Lender, if applicable); provided that any such reduction in any such
Letter of Credit Commitment Amount or the Swing Line Loan Commitment Amount
shall be reinstated to the extent that, whether pursuant to clause (h) of
Section 2.1.2, Section 2.5 or otherwise, the corresponding Revolving Loan
Commitment Amount is thereafter increased.
SECTION 2.3. Borrowing Procedures and Funding Maintenance. Committed
Loans (other than Swing Line Loans) shall be made by the Lenders in accordance
with Section 2.3.1, and Swing Line Loans shall be made by the Swing Line Lender
in accordance with Section 2.3.2.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering the
appropriate Committed Loan Borrowing Request to the Administrative Agent on or
before 12:00 noon, New York time (in the case of U.S. Loans or Canadian Loans)
or 11:00 a.m., London time (in the case of any Foreign Currency Loans other than
Canadian Loans), on a Business Day, a Borrower may from time to time irrevocably
request, on not less than one Business Day's notice (in the case of Base Rate
Loans) or three Business Days' notice (in the case of Fixed Rate Loans) nor more
than five Business Days' notice (in the case of any Committed Loans), that a
Committed Borrowing be made in a minimum amount of $500,000 (or, in the case of
Foreign Currency Revolving Loans, the multiple of 100,000 units of the Currency
of such Loans the U.S. Dollar Equivalent of which is nearest to $500,000) or any
larger integral multiple of $100,000 (or, in the case of Foreign Currency
Revolving Loans, the multiple of 50,000 units of the Currency of such Loans the
U.S. Dollar Equivalent of which is nearest to $100,000) or in the unused amount
of the applicable Commitment. No Committed Loan Borrowing Request shall be
required, and the
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minimum aggregate amounts specified under this Section 2.3.1 shall not apply, in
the case of U.S. Revolving Loans made under clause (b) of Section 2.3.2 to
refund Refunded Swing Line Loans or Committed Revolving Loans deemed made under
Section 2.8.2 in respect of unreimbursed Disbursements. On the terms and subject
to the conditions of this Agreement, each Committed Borrowing shall be comprised
of the type of Committed Loans, shall be made in the Currency and shall be made
on the Business Day, specified in such Committed Loan Borrowing Request. On or
before 11:00 a.m., New York time (11:00 a.m., London time, in the case of
Foreign Currency Loans other than Canadian Loans), on such Business Day, each
Lender shall deposit with the Administrative Agent same day funds in the
applicable Currency in an amount equal to such Lender's Percentage of the
requested Borrowing. Such deposit will be made to an account which the
Administrative Agent shall specify from time to time by notice to the Lenders.
To the extent funds are received from the Lenders, the Administrative Agent
shall make such funds available to the applicable Borrower by wire transfer to
the accounts such Borrower shall have specified in its Committed Loan Borrowing
Request. No Lender's obligation to make any Committed Loan shall be affected by
any other Lender's failure to make any Committed Loan.
SECTION 2.3.2. Swing Line Loans. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Committed
Loan Borrowing Request, to the Swing Line Lender on or before 1:00 p.m., New
York time, on the Business Day the proposed Swing Line Loan is to be made, the
Company may from time to time irrevocably request that a Swing Line Loan be made
by the Swing Line Lender in a minimum principal amount of $50,000 or any larger
integral multiple of $10,000. All Swing Line Loans shall be made in U.S. Dollars
as Base Rate Loans and shall not be entitled to be converted into LIBO Rate
Loans. The proceeds of each Swing Line Loan shall be made available by the Swing
Line Lender, by 2:00 p.m., New York time, on the Business Day telephonic notice
is received by it as provided in this clause (a), to the Company by wire
transfer to the account the Company shall have specified in its notice therefor.
(b) If (i) any Swing Line Loan shall be outstanding for more than three
Business Days or (ii) any Default shall occur and be continuing, each Lender
with a U.S. Revolving Loan Commitment (other than the Swing Line Lender)
irrevocably agrees that it will, at the request of the Swing Line Lender and
upon notice from the Administrative Agent, unless such Swing Line Loan shall
have been earlier repaid in full, make a U.S. Revolving Loan (which shall
initially be funded as a Base Rate Loan) in an amount equal to such Lender's
Percentage in respect of the U.S. Revolving Loan Commitments of the aggregate
principal amount of all such Swing Line Loans then outstanding (such outstanding
Swing Line Loans hereinafter referred to as the "Refunded Swing Line Loans");
provided, that the Swing Line Lender shall not request, and no Lender with a
U.S. Revolving Loan Commitment shall make, any Refunded Swing Line Loan if,
after giving effect to the making of such Refunded Swing Line Loan, the sum of
all Swing Line Loans and U.S. Revolving Loans made by such Lender, plus such
Lender's Percentage in respect
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of the U.S. Revolving Loan Commitment of the U.S. Letter of Credit Outstandings,
would exceed such Lender's Percentage of the then existing U.S. Revolving Loan
Commitment Amount. On or before 12:00 noon, New York time, on the first Business
Day following receipt by each Lender of a request to make U.S. Revolving Loans
as provided in the preceding sentence, each such Lender with a U.S. Revolving
Loan Commitment shall deposit in an account specified by the Swing Line Lender
the amount so requested in same day funds and such funds shall be applied by the
Swing Line Lender to repay the Refunded Swing Line Loans. At the time the
aforementioned Lenders make the above referenced U.S. Revolving Loans, the Swing
Line Lender shall be deemed to have made, in consideration of the making of the
Refunded Swing Line Loans, a U.S. Revolving Loan in an amount equal to the Swing
Line Lender's Percentage in respect of the U.S. Revolving Loan Commitment of the
aggregate principal amount of the Refunded Swing Line Loans. Upon the making (or
deemed making, in the case of the Swing Line Lender) of any U.S. Revolving Loans
pursuant to this clause (b), the amount so funded shall become outstanding as a
U.S. Revolving Loan of such Lender and shall no longer be a Swing Line Loan. All
interest payable with respect to any U.S. Revolving Loans made (or deemed made,
in the case of the Swing Line Lender) pursuant to this clause (b) shall be
appropriately adjusted to reflect the period of time during which the Swing Line
Lender had outstanding Swing Line Loans in respect of which such U.S. Revolving
Loans were made. Each Lender's obligation (in the case of Lenders with a U.S.
Revolving Loan Commitment) to make the U.S. Revolving Loans referred to in this
clause (b) 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 Lender may have against the Swing
Line Lender, the Company or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of any Default; (iii) any adverse change in the
condition (financial or otherwise) of the Company or any other Obligor; (iv) the
acceleration or maturity of any Loans or the termination of any Commitment after
the making of any Swing Line Loan; (v) any breach of this Agreement or any other
Loan Document by any Borrower or any Lender; or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
SECTION 2.4. Uncommitted Revolving Loans. Subject to compliance by the
Company with the terms of Section 2.1.4, Section 5.1 and Section 5.2.1, and
compliance by the applicable Foreign Borrower with the terms of Section 5.2.2
(and, in the case of any Foreign Borrower other than the U.K. Term Borrower, the
U.K. Revolver Borrower, the Canadian Borrower, the French Revolver Borrower and
the Spanish Revolver Borrower, compliance by the applicable Foreign Borrower
with the terms of Section 5.3), each Lender severally agrees that any Foreign
Borrower may request that Uncommitted Revolving Loan Borrowings be made to it
pursuant to this Section 2.4 from time to time on any Business Day prior to the
Revolving Loan Commitment Termination Date.
SECTION 2.4.1. Uncommitted Revolving Loan Borrowing Request. (a) A
Foreign Borrower may request that a Borrowing of Uncommitted Revolving Loans be
made to it in any
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Foreign Currency by delivering to the Administrative Agent an Uncommitted
Revolving Loan Borrowing Request, which shall specify:
(i) the Foreign Currency in which each such Loan is requested
to be made (provided, that such Foreign Borrower may only request and
receive Uncommitted Revolving Loans denominated in the Foreign Currency
of the country in which such Foreign Borrower's principal business
operations are located);
(ii) the principal amount of the Uncommitted Revolving Loan
Borrowing requested to be made to such Foreign Borrower (which shall be
in an aggregate principal amount the U.S. Dollar Equivalent of which is
not less than $500,000) and that, after giving effect to such
Uncommitted Revolving Loan Borrowing, the conditions set forth in
Section 5.2.1 applicable thereto shall have been satisfied;
(iii) the proposed date of each such proposed Uncommitted
Revolving Loan Borrowing, which shall be a Business Day;
(iv) in the case of a proposed Borrowing of Uncommitted
Revolving Loans that are to be Fixed Rate Loans, the proposed Interest
Period for each such proposed Borrowing, subject to the provisions of
the definition of Interest Period;
(v) the proposed Stated Maturity Date for the Uncommitted
Revolving Loans to be made pursuant to each such Uncommitted Revolving
Loan Borrowing; and
(vi) whether the Uncommitted Interest Quotes requested are to
set forth an Uncommitted Interest Margin or an Uncommitted Absolute
Interest Rate.
(b) Each Uncommitted Revolving Loan Borrowing Request shall be
transmitted to the Administrative Agent by telex or facsimile so as to be
received by the Administrative Agent (i) no later than 10:30 a.m., New York time
(10:30 a.m., London time, in the case of Foreign Currency Loans other than
Canadian Loans), on the fourth Business Day before the date of the Borrowing
proposed therein, in the case of a LIBO Rate Auction, or (ii) not later than
10:30 a.m., New York time, on the Business Day next preceding the date of the
Borrowing proposed therein, in the case of an Absolute Rate Auction, or, in any
such case, such other time or date as the Company and the Administrative Agent
shall have mutually agreed and shall have notified to the Lenders having a
Percentage of any Revolving Loan Commitment of greater than zero no later than
the date of the Uncommitted Revolving Loan Borrowing Request for the first LIBO
Rate Auction or Absolute Rate Auction for which such change is to be effective.
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(c) No Foreign Borrower shall deliver to the Administrative Agent any
Uncommitted Revolving Loan Borrowing Request within five Business Days after the
delivery by such Foreign Borrower of any other Uncommitted Revolving Loan
Borrowing Request.
SECTION 2.4.2. Invitation for Uncommitted Interest Quotes. Promptly
upon receipt of an Uncommitted Revolving Loan Borrowing Request delivered
pursuant to Section 2.4.1, but in no event later than the Business Day following
such receipt, the Administrative Agent shall send to each of the Lenders having
a Percentage of any Revolving Loan Commitment of greater than zero (by telecopy)
an Invitation for Uncommitted Interest Quotes (which shall include a copy of
each Uncommitted Revolving Loan Borrowing Request delivered pursuant to Section
2.4.1), which shall constitute an invitation on behalf of the relevant Foreign
Borrower to each such Lender to submit Uncommitted Interest Quotes offering to
make all or a portion of the Uncommitted Revolving Loan Borrowing requested by
such Foreign Borrower pursuant to Section 2.4.1. The Lenders may, but shall have
no obligation to, make such offers and such Foreign Borrower may, but shall have
no obligation to, accept any such offers in the manner set forth herein.
SECTION 2.4.3. Submission and Contents of Uncommitted Interest Quotes.
(a) Each Lender having a Percentage of any Revolving Loan Commitment of greater
than zero may submit an Uncommitted Interest Quote containing an offer or offers
to make Uncommitted Revolving Loans in response to any Invitation for
Uncommitted Interest Quotes. Each Uncommitted Interest Quote must comply with
the requirements of this Section 2.4.3 and must be submitted to the
Administrative Agent (by telecopy) (i) not later than 2:00 p.m., New York time,
on the fourth Business Day before the proposed date of the Borrowing, in the
case of a LIBO Rate Auction, or (ii) not later than 9:30 a.m., New York time, on
the proposed date of the Borrowing, in the case of an Absolute Rate Auction, or,
in any such case, such other time or date as the Company and the Administrative
Agent shall have mutually agreed and shall have notified to the Lenders having a
Percentage of any Revolving Loan Commitment of greater than zero not later than
the date of the Uncommitted Revolving Loan Borrowing Request for the first LIBO
Rate Auction or Absolute Rate Auction for which such change is to be effective;
provided, however, that Uncommitted Interest Quotes submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Lender may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the relevant Foreign Borrower of
the terms of the offer or offers contained therein not later than (x) one hour
before the deadline for the other Lenders, in the case of a LIBO Rate Auction or
(y) 15 minutes before the deadline for the other Lenders, in the case of an
Absolute Rate Auction.
(b) Each Uncommitted Interest Quote shall be substantially in the form
of Exhibit G-5 hereto, shall comply with the provisions of this Section 2.4.3,
and shall in any case specify the following:
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(i) the proposed date of Borrowing,
(ii) each Foreign Borrower to which the Lender would be
willing to make its Uncommitted Revolving Loans,
(iii) the principal amount (stated in the applicable Foreign
Currency) of the Uncommitted Revolving Loan for which each such offer
is being made, which principal amount (x) may be greater than or less
than the Revolving Loan Commitments of the quoting Lender, (y) shall be
in an amount the U.S. Dollar Equivalent of which is at least $500,000
and (z) may not exceed the principal amount of Uncommitted Revolving
Loans for which offers were requested,
(iv) in the case of a LIBO Rate Auction, the margin above the
applicable LIBO Rate (the "Uncommitted Interest Margin") offered for
each such Uncommitted Revolving Loan, expressed as a percentage
(specified to the nearest 1/10,000 of 1%) to be added to or subtracted
from such LIBO Rate,
(v) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000 of 1%) (the
"Uncommitted Absolute Interest Rate") offered for each such Uncommitted
Revolving Loan, and
(vi) the identity of the quoting Lender;
provided, however, that any Uncommitted Interest Quote submitted by a Lender
pursuant to this Section 2.4.3 shall be irrevocable (subject to Articles V and
VIII hereof), unless otherwise consented to in writing by the Administrative
Agent acting upon the instructions of the applicable Foreign Borrower.
(c) Any Uncommitted Interest Quote that: (i) is not substantially in
the form of Exhibit G-5 hereto, as determined by the Administrative Agent in its
sole discretion, or does not specify all of the information required in clause
(b) above; (ii) contains qualifying, conditional or similar language; or (iii)
arrives after the time set forth in clause (a) above, may be disregarded by the
applicable Foreign Borrower and the Administrative Agent.
(d) The Administrative Agent (by telephone, promptly confirmed in
writing) shall promptly notify the relevant Foreign Borrower of the terms of all
Uncommitted Interest Quotes submitted by the Lenders in accordance with this
Section 2.4.3, as well as the identity of any such Lender.
SECTION 2.4.4. Uncommitted Revolving Loan Acceptance. (a) The relevant
Foreign Borrower shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers
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notified to it pursuant to clause (d) of Section 2.4.3 (x) not later than 4:00
p.m., New York time, on the fourth Business Day before the proposed date of
Borrowing, in the case of a LIBO Rate Auction, or (y) not later than 10:30 a.m.,
New York time, on the proposed date of Borrowing, in the case of an Absolute
Rate Auction, or, in any such case, such other time or date as the Company and
the Administrative Agent shall have mutually agreed and shall have given notice
thereof to each Lender having a Percentage of any Revolving Loan Commitment of
greater than zero not later than the date of the Uncommitted Revolving Loan
Borrowing Request for the first LIBO Rate Auction or Absolute Rate Auction for
which such change is to be effective. In the case of acceptance, such notice (a
"Notice of Uncommitted Revolving Borrowing") shall specify the aggregate
principal amount of offers for each requested maturity date and, in the case of
LIBO Rate Loans, Interest Period that are accepted.
(b) The relevant Foreign Borrower may accept any Uncommitted Interest
Quote in whole or in part; provided, however, that:
(i) the aggregate principal amount of each Uncommitted
Revolving Loan Borrowing may not exceed the applicable amount set forth
in the related Uncommitted Revolving Loan Borrowing Request;
(ii) the aggregate principal amount (calculated at the U.S.
Dollar Equivalent thereof) of each Uncommitted Revolving Loan Borrowing
must not be less than $500,000;
(iii) acceptance of offers may only be made on the basis of
ascending Uncommitted Interest Margins or Uncommitted Absolute Interest
Rates, as the case may be;
(iv) the relevant Foreign Borrower may not accept any offer
that fails to comply with the requirements of this Agreement; and
(v) the conditions set forth in Section 5.2.1 applicable to
such Uncommitted Revolving Loan Borrowing shall have been satisfied.
(c) Not later than 12:00 noon, New York time, on the date specified for
each Uncommitted Revolving Loan Borrowing hereunder, each Lender participating
therein shall, by wire transfer in same day funds, deposit to an account of the
applicable Foreign Borrower specified by such Foreign Borrower the amount of the
Uncommitted Revolving Loans to be made by it on such date in the applicable
Foreign Currency.
(d) As soon as practicable after the Uncommitted Revolving Loan
Borrowing is made, the Administrative Agent shall notify each Lender having a
Percentage of any Revolving Loan
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Commitment greater than zero of (i) the amount of the Uncommitted Revolving Loan
Borrowing, (ii) the U.S. Dollar Equivalent of the outstanding principal amount
of all Foreign Currency Revolving Loans (in the aggregate and for each Foreign
Borrower) immediately after giving effect to such Borrowing and (iii) the date
on which such Uncommitted Revolving Loan Borrowing was made.
SECTION 2.5. Committed Foreign Currency Revolving Loans; Spanish Term
Loans. (a) At any time that no Event of Default has occurred and is continuing,
one or more Foreign Borrowers from time to time may enter into one or more
Foreign Currency Revolving Loan Commitment Addenda, each with one or more
Lenders that have, immediately prior to the effectiveness of such Foreign
Currency Revolving Loan Commitment Addendum, Percentages in respect of the U.S.
Revolving Loan Commitments of greater than zero, whereby such Lenders commit to
make, from time to time on and subsequent to the Closing Date but prior to the
Revolving Loan Commitment Termination Date, Committed Foreign Currency Revolving
Loans denominated in the Foreign Currency of the country in which such Foreign
Borrower's principal business operations are located, provided, however, that
after giving effect to any Foreign Currency Revolving Loan Commitment created
pursuant to this Section 2.5, the Total Foreign Currency Revolving Loan
Commitment Amount shall not exceed the Foreign Currency Revolving Loan Limit.
Any Foreign Currency Revolving Loan Commitment Addendum entered into pursuant to
this Section 2.5 shall become effective upon (and subject to) the Company's
delivery of a duly executed copy thereof to the Administrative Agent pursuant to
Section 11.2 hereof.
(b) Any Foreign Currency Revolving Loan Commitment Addendum entered
into pursuant to this Section 2.5 may, but need not, include a commitment (a
"Foreign Currency Letter of Credit Commitment") by an Issuer party thereto to
issue, and a commitment by the Lenders party thereto to participate in, from
time to time on and subsequent to the Closing Date but prior to the Revolving
Loan Commitment Termination Date, Foreign Currency Letters of Credit denominated
in the Foreign Currency of the country in which such Foreign Borrower's
principal business operations are located for the account of the Foreign
Borrower or Foreign Borrowers party thereto and their respective Subsidiaries;
provided, however, that in respect of any Foreign Currency Letter of Credit
Commitment so created under this Section 2.5, the Foreign Currency Letter of
Credit Commitment Amount shall not exceed the Foreign Currency Revolving Loan
Commitment Amount set forth in the applicable Foreign Currency Revolving Loan
Commitment Addendum;
(c) Each Foreign Currency Revolving Loan Commitment Addendum shall set
forth:
(i) the Foreign Borrowers eligible to make Borrowings of
Committed Foreign Currency Revolving Loans (and, if Foreign Currency
Letters of Credit are therein contemplated, request the issuance of
Foreign Currency Letters of Credit) thereunder;
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(ii) the Foreign Currency in which Committed Foreign Currency
Revolving Loans are to be made (and, if applicable, Foreign Currency
Letters of Credit are to be issued) thereunder;
(iii) the Foreign Currency Revolving Loan Commitment Amount
under such Foreign Currency Revolving Loan Commitment Addendum, which
shall be stated in U.S. Dollars;
(iv) the Percentage of each Lender party to such Foreign
Currency Revolving Loan Commitment Addendum in respect of such Foreign
Currency Revolving Loan Commitment Amount; and
(v) if such Foreign Currency Revolving Loan Commitment
Addendum includes Foreign Currency Letter of Credit Commitments,
(A) the Issuer in respect of the Foreign Currency Letters of
Credit to be issued thereunder;
(B) the Foreign Currency Letter of Credit Commitment Amount
under such Foreign Currency Revolving Loan Commitment Addendum, which
shall be stated in U.S. Dollars and shall not exceed the Foreign
Currency Revolving Loan Commitment Amount set forth in such Foreign
Currency Revolving Loan Commitment Addendum; and
(C) the Letter of Credit Reimbursement Obligation Rate in
respect of Foreign Currency Letters of Credit issued thereunder.
(d) Upon the effectiveness of any Foreign Currency Revolving Loan
Commitment Addendum pursuant to clause (a) of Section 2.5 or any reduction in
any Foreign Currency Revolving Loan Commitment pursuant to Section 2.2, the
Percentages of each Lender with a Percentage in respect of the applicable
Foreign Currency Revolving Loan Commitments or the U.S. Revolving Loan
Commitments in excess of zero shall be automatically adjusted so that, after
giving effect to such adjustment, the aggregate amount of the respective
Percentages of each Lender in respect of such Revolving Loan Commitments
multiplied by the respective Revolving Loan Commitment Amounts shall, before and
after giving effect to such Foreign Currency Revolving Loan Commitment Addendum
or reduction and such adjustment, be equal. Schedule III hereto sets forth an
illustration of the operation of this Section 2.5(d).
(e) If and when any adjustment is made to any Percentage of any Lender
pursuant to clause (d) at any time when any Committed Revolving Loans or Letters
of Credit are outstanding, at such time and in such manner as the Company and
the Syndication Agent shall agree (it being understood that the Company and the
Agents will use all commercially reasonable
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efforts to avoid prepayment or assignment of any Fixed Rate Loan on a day other
than the last day of the Interest Period applicable thereto), the Lenders shall
assign and assume outstanding Committed Revolving Loans and participations in
outstanding Letters of Credit held by each Lender to conform to the respective
Percentages of the respective Revolving Loan Commitments of the Lenders.
(f) At any time that no Event of Default has occurred and is
continuing, the Spanish Term Borrower may enter into a Foreign Currency Term
Loan Commitment Addendum with one or more Lenders or other financial
institutions, whereby such Lenders or other financial institutions commit to
make Spanish Term Loans denominated in Spanish Pesetas (and, in the case of any
such financial institution that is not theretofore a Lender, to be a Lender
hereunder). Any Foreign Currency Term Loan Commitment Addendum entered into
pursuant to this Section 2.5 shall become effective upon (and subject to) the
Company's delivery of a duly executed copy thereof to the Administrative Agent
pursuant to Section 11.2 hereof.
(g) A Foreign Currency Term Loan Commitment Addendum shall set forth:
(i) the Spanish Term Borrower eligible to make Borrowings of
Spanish Term Loans thereunder;
(ii) the Spanish Term Loan Commitment Amount under such
Foreign Currency Term Loan Commitment Addendum, which shall be stated
in U.S. Dollars and shall not exceed the aggregate principal amount of
the then outstanding Term Loans; and
(iii) the Percentage of each Lender party to such Foreign
Currency Term Loan Commitment Addendum in respect of such Foreign
Currency Term Loan Commitment Amount.
SECTION 2.6. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time (in the case of U.S. Loans or Canadian Loans) or 11:00 a.m.,
London time (in the case of any Foreign Currency Loans other than Canadian
Loans), on a Business Day, a Borrower may from time to time irrevocably elect,
on not less than one Business Day's notice (in the case of a conversion of Fixed
Rate Loans into Base Rate Loans) or three Business Days' notice (in the case of
a continuation of Fixed Rate Loans or a conversion of Base Rate Loans into Fixed
Rate Loans) nor more than five Business Days' notice (in the case of any Loans)
that all, or any portion in a minimum amount of $500,000 (or, in the case of
Foreign Currency Loans, the multiple of 100,000 units of the Currency of such
Loans the U.S. Dollar Equivalent of which is nearest to $500,000) or any larger
integral multiple of $100,000 (or, in the case of Foreign Currency Loans, the
multiple of 50,000 units of the Currency of such Loans the U.S. Dollar
Equivalent of which is nearest to $100,000), of any Borrowing of Committed Loans
be, in the
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case of Base Rate Loans, converted into Fixed Rate Loans or, in the case of
Fixed Rate Loans, continued as Fixed Rate Loans or, in the case of U.S. Loans or
Canadian Loans only, converted to Base Rate Loans; provided, however, that, in
the absence of delivery of a Continuation/Conversion Notice with respect to any
Committed Loan that is a Fixed Rate Loan at least three Business Days before the
last day of the then current Interest Period with respect thereto, such Fixed
Rate Loan shall, (A) in the case of a Fixed Rate Loan that is a Foreign Currency
Loan (other than a Canadian Loan), automatically be continued as a Fixed Rate
Loan with an Interest Period of one month and (B) in the case of a Fixed Rate
Loan that is a U.S. Loan or a Canadian Loan, automatically convert to a Base
Rate Loan, in each case on such last day; provided, further, however, that (x)
each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of the relevant Lenders, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, Fixed
Rate Loans when any Default has occurred and is continuing.
SECTION 2.6.1. Converting Canadian Prime Rate Loans to, or Continuing
Canadian BAs as, Canadian BAs. Provided that the Canadian Borrower has, by
giving notice to the Administrative Agent in accordance with Section 2.6,
requested the Lenders to accept its drafts to replace all or a portion of an
outstanding Canadian Loan, then each Lender shall, on the date of conversion or
continuation, as applicable, and concurrent with the payment by the Canadian
Borrower to the Administrative Agent on behalf of the Lenders of an amount equal
to the difference between the principal or face amount of such outstanding
Canadian Loan or the portion thereof which is being converted or continued and
the aggregate Notional BA Proceeds with respect to the drafts to be accepted by
the Lenders, accept the Canadian Borrower's draft or drafts having an aggregate
face amount equal to its Percentage of the aggregate principal or face amount of
such Canadian Loan or the portion thereof which is being converted or continued,
such acceptance to be in accordance with Section 2.11.
SECTION 2.6.2. Converting Canadian BAs to Canadian Prime Rate Loans.
Each applicable Lender shall, at the end of an Interest Period with respect to
Canadian BAs which such Lender has accepted, pay to the holder thereof the face
amount of such Canadian BA. Provided that the Canadian Borrower has, by giving
notice to the Administrative Agent in accordance with Section 2.6, requested a
Lender to convert all or a portion of outstanding maturing Canadian BAs into a
Canadian Prime Rate Loan, such Lender shall, upon the end of the current
Interest Period with respect to such Canadian BAs and the payment by such Lender
to the holders of such Canadian BAs of the aggregate face amount thereof, be
deemed to have made to the Canadian Borrower the Canadian Prime Rate Loan into
which the matured Canadian BAs or a portion thereof are converted in the
aggregate principal amount equal to its Percentage of the aggregate face amount
of the matured Canadian BAs or the portion thereof which are being converted.
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SECTION 2.7. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to the applicable Borrower; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the applicable Borrower to
repay such LIBO Rate Loan shall nevertheless be to such Lender for the account
of such foreign branch, Affiliate or international banking facility; provided,
further, however, that, except for purposes of determining whether any such
increased costs are payable by the applicable Borrower, such Lender shall cause
such foreign branch, Affiliate or international banking facility to comply with
the applicable provisions of clause (b) of Section 4.6 with respect to such LIBO
Rate Loan. In addition, each Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of Section 4.1, 4.2, 4.3
or 4.4, it shall be conclusively assumed that each Lender elected to fund all
LIBO Rate Loans by purchasing deposits in the relevant Currency in its LIBOR
Office's interbank Eurodollar market.
SECTION 2.8. Issuance Procedures. By delivering to the applicable
Issuer and the Administrative Agent an Issuance Request on or before 12:00 noon,
New York time, on a Business Day, any Borrower as to which any Issuer has a
Letter of Credit Commitment may, from time to time irrevocably request, on not
less than three nor more than ten Business Days' notice (or such shorter or
longer notice as may be acceptable to such Issuer), in the case of an initial
issuance of a Letter of Credit, and not less than three nor more than ten
Business Days' notice (unless a shorter or longer notice period is acceptable to
such Issuer) prior to the then existing Stated Expiry Date of a Letter of
Credit, in the case of a request for the extension of the Stated Expiry Date of
a Letter of Credit, that such Issuer issue, or extend the Stated Expiry Date of,
as the case may be, an irrevocable Letter of Credit on behalf of such Borrower
denominated in the applicable Currency (whether issued for the account of or on
behalf of such Borrower or any of its Subsidiaries) in such form as may be
requested by such Borrower and approved by such Issuer, for the purposes
described in Section 7.1.9. Notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, each Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement paid under a Letter of Credit, and it
shall be deemed to be the obligor for purposes of each such Letter of Credit
issued hereunder by such Issuer at the request of such Borrower (whether the
account party on such Letter of Credit is such Borrower or a Subsidiary of such
Borrower). Upon receipt of an Issuance Request, the Administrative Agent shall,
in accordance with its usual business practices, notify the applicable Issuer
and each Lender that has a Percentage of more than zero in respect of the
relevant Revolving Loan Commitments thereof. Each Letter of Credit shall by its
terms be stated to expire on a date (its "Stated Expiry Date"), in the case of
standby Letters of Credit, not later than the date that is five Business Days
prior to the sixth anniversary of the Original Closing Date and not later than
one year from the date of such issuance, and, in the case of commercial Letters
of Credit, not later than the date that is thirty
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Business Days prior to the sixth anniversary of the Original Closing Date and
not later than 180 days from the date of such issuance; provided, that,
notwithstanding the terms of clause (ii) above, a Letter of Credit may, if
required by the beneficiary thereof, contain "evergreen" provisions pursuant to
which the Stated Expiry Date shall be automatically extended, unless notice to
the contrary shall have been given to the beneficiary by the applicable Issuer
or the account party more than a specified period prior to the then existing
Stated Expiry Date. The applicable Issuer will make available to the beneficiary
thereof the original of each Letter of Credit which it issues hereunder. In the
event that the Issuer is other than the Administrative Agent, such Issuer will
send by facsimile transmission to the Administrative Agent, promptly on the
first Business Day of each week, its daily maximum amount available to be drawn
under the Letters of Credit issued by such Issuer for the previous week. The
Administrative Agent shall deliver to each Lender upon each calendar month end,
and upon each Letter of Credit Fee payment, a report (which may be received from
the applicable Issuer in respect of Foreign Currency Letters of Credit) setting
forth the daily maximum amount available to be drawn for all Issuers during such
period.
SECTION 2.8.1. Other Lenders' Participation. Upon the issuance (or
deemed issuance) of each Letter of Credit issued by an Issuer pursuant hereto,
and without further action, each Lender (other than such Issuer) that has a
Percentage of more than zero in respect of the relevant Revolving Loan
Commitments shall be deemed to have irrevocably purchased from such Issuer, to
the extent of its Percentage in respect of the applicable Revolving Loan
Commitments and such Issuer shall be deemed to have irrevocably granted and sold
to such Lender a participation interest in such Letter of Credit (including the
Contingent Liability and any Reimbursement Obligation and all rights with
respect thereto), and such Lender shall, to the extent of its Percentage in
respect of the applicable Revolving Loan Commitments be responsible for
reimbursing promptly (and in any event within one Business Day) the applicable
Issuer for Reimbursement Obligations which have not been reimbursed by the
applicable Borrower in accordance with this Section 2.8. In addition, such
Lender shall, to the extent of its Percentage in respect of the applicable
Revolving Loan Commitments, be entitled to receive from the Administrative Agent
a ratable portion of the Letter of Credit Fees payable pursuant to Section 3.3.3
with respect to each Letter of Credit and of interest payable pursuant to
Section 3.2 with respect to any Reimbursement Obligation. To the extent that any
Lender has reimbursed an Issuer for a Disbursement as required by this Section,
such Lender shall be entitled to receive from the Administrative Agent its
ratable portion of any amounts subsequently received (from the applicable
Borrower or otherwise) in respect of such Disbursement.
SECTION 2.8.2. Disbursements; Conversion to Revolving Loans. Each
Issuer will notify the applicable Borrower and the Administrative Agent promptly
of the presentment for payment of any drawing under any Letter of Credit issued
by such Issuer, together with notice of the date (the "Disbursement Date") such
payment shall be made (each such payment, a "Disbursement"). Subject to the
terms and provisions of such Letter of Credit and this
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Agreement, such Issuer shall make such payment to the beneficiary (or its
designee) of such Letter of Credit. Prior to 12:30 p.m., New York time, on the
first Business Day following the Disbursement Date (the "Disbursement Due
Date"), the applicable Borrower will reimburse the Administrative Agent, for the
account of such Issuer, for all amounts which such Issuer has disbursed under
such Letter of Credit, together with interest thereon at the rate per annum
otherwise applicable to U.S. Revolving Loans made as Base Rate Loans (in the
case of U.S. Letters of Credit) or at the Letter of Credit Reimbursement
Obligation Rate in respect of such Letter of Credit (in the case of any other
Letter of Credit) from and including the Disbursement Date to but excluding the
Disbursement Due Date and, thereafter (unless such Disbursement is converted
into a Committed Revolving Loan on the Disbursement Due Date), at a rate per
annum equal to the rate per annum then in effect with respect to overdue U.S.
Revolving Loans made as Base Rate Loans pursuant to Section 3.2.2 (in the case
of U.S. Letters of Credit) or at a rate per annum equal to the Letter of Credit
Reimbursement Obligation Rate in respect of such Letter of Credit plus 2% (in
the case of any other Letter of Credit) for the period from the Disbursement Due
Date through the date of such reimbursement; provided, however, that, if no
Default shall have then occurred and be continuing, unless the applicable
Borrower has notified the Administrative Agent no later than one Business Day
prior to the Disbursement Due Date that it will reimburse such Issuer for the
applicable Disbursement, then the amount of the Disbursement shall be deemed to
be a Borrowing of Committed Revolving Loans in the applicable Currency which, in
the case of U.S. Dollars, shall constitute Base Rate Loans and, in the case of
any Foreign Currency, shall bear interest at the Letter of Credit Reimbursement
Obligation Rate in respect of such Letter of Credit, and following the giving of
notice thereof by the Administrative Agent to the applicable Lenders, each
Lender with a Percentage of greater than zero in respect of the applicable
Revolving Loan Commitments (other than such Issuer) will deliver to such Issuer
on the Disbursement Due Date immediately available funds in the applicable
Currency in an amount equal to such Lender's applicable Percentage of such
Borrowing. Each conversion of Disbursement amounts into Committed Revolving
Loans shall constitute a representation and warranty by the applicable Borrower
that on the date of the making of such Committed Revolving Loans all of the
statements set forth in Section 5.2.1 are true and correct.
SECTION 2.8.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of a Borrower under Section 2.8.2 to reimburse an Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Committed Revolving Loan pursuant to Section 2.8.2, and, upon the failure of any
Borrower to reimburse an Issuer and the giving of notice thereof by the
Administrative Agent to the applicable Lenders, each Lender's (to the extent it
has a Percentage of greater than zero in respect of the applicable Revolving
Loan Commitment Amount) obligation under Section 2.8.1 to reimburse such Issuer
or fund its Percentage of any Disbursement converted into a Committed Revolving
Loan, shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which such
Borrower or such Lender, as the case may be, may have or have had against such
Issuer or any such Lender, including any defense based upon the failure of any
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Disbursement to conform to the terms of the applicable Letter of Credit (if, in
the applicable Issuer's good faith opinion, such Disbursement is determined to
be appropriate) or any non-application or misapplication by the beneficiary of
the proceeds of such Letter of Credit; provided, however, that after paying in
full its Reimbursement Obligation hereunder, nothing herein shall adversely
affect the right of such Borrower or such Lender, as the case may be, to
commence any proceeding against the applicable Issuer for any wrongful
Disbursement made by such Issuer under a Letter of Credit as a result of acts or
omissions constituting gross negligence or willful misconduct on the part of
such Issuer determined by a court of competent jurisdiction.
SECTION 2.8.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in clauses (b)
through (d) of Section 8.1.9 or, with notice from the Administrative Agent
acting at the direction of the Required Lenders, upon the occurrence and during
the continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued at the request of any
Borrower and outstanding shall, without demand upon or notice to such
Borrower or any other Person, be deemed to have been paid or disbursed
by the applicable Issuer under such Letters of Credit (notwithstanding
that such amount may not in fact have been so paid or disbursed); and
(b) upon notification by the Administrative Agent to the
applicable Borrower of its obligations under this Section, such
Borrower shall be immediately obligated to reimburse the applicable
Issuer for the amount deemed to have been so paid or disbursed by the
applicable Issuer.
Any amounts so payable by any Borrower pursuant to this Section shall be
deposited in cash in the applicable Currency with the Administrative Agent and
held as collateral security for the Obligations in connection with the Letters
of Credit issued at the request of such Borrower by the applicable Issuer. At
such time as the Events of Default giving rise to the deemed disbursements
hereunder shall have been cured or waived, the Administrative Agent shall return
to the applicable Borrower all amounts then on deposit with the Administrative
Agent pursuant to this Section, together with accrued interest at the Federal
Funds Rate, which have not been applied to the satisfaction of such Obligations.
SECTION 2.8.5. Nature of Reimbursement Obligations. Each Borrower and,
to the extent set forth in Section 2.8.1, each Lender with an applicable
Revolving Loan Commitment, shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof. No Issuer (except to
the extent of its own gross negligence or willful misconduct determined by a
court of competent jurisdiction) shall be responsible for:
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(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Lender with an applicable
Revolving Loan Commitment hereunder. In furtherance and extension and not in
limitation or derogation of any of the foregoing, any action taken or omitted to
be taken by any Issuer in good faith (and not constituting gross negligence or
willful misconduct determined by a court of competent jurisdiction) shall be
binding upon the applicable Borrower, each Obligor and each such Lender, and
shall not put such Issuer under any resulting liability to such Borrower, any
Obligor or any such Lender, as the case may be.
SECTION 2.8.6. Deemed Issuance of Existing Letters of Credit. All
Letters of Credit outstanding under the Existing Credit Agreement on the Closing
Date shall, for all purposes hereof, be deemed to be Letters of Credit issued
hereunder on the Closing Date.
SECTION 2.9. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of each
Borrower to such Lender resulting from each Loan made by such Lender to
such Borrower, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder. In the case of a
Lender that does not request, pursuant to clause (b)(ii) below,
execution and delivery of a Note or Notes evidencing the Loans made by
such Lender to a Borrower, such account or accounts shall, to the
extent not inconsistent with the notations made by the
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Administrative Agent in the Register, be conclusive and binding on such
Borrower absent manifest error; provided, however, that the failure of
any Lender to maintain such account or accounts shall not limit or
otherwise affect any Obligations of any Borrower or any other Obligor.
(b)(i) Each Borrower hereby designates the Administrative
Agent to serve as its agent, solely for the purpose of this clause (b),
to maintain a register (the "Register") on which the Administrative
Agent will record each Lender's Commitments, the Loans made by each
Lender to each Borrower and each repayment in respect of the principal
amount of the Loans of each Lender to each Borrower and together with
which the Administrative Agent shall retain a copy of each Foreign
Currency Revolving Loan Commitment Addendum delivered to the
Administrative Agent pursuant to Section 2.5 and each Lender Assignment
Agreement delivered to the Administrative Agent pursuant to Section
11.11.1. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrowers' obligations in respect of
such Loans. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrowers, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan (and, as
provided in clause (ii), the Note evidencing such Loan, if any) is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. Any
Commitment of any Lender and the Loans made pursuant thereto may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer in the Register. Any
assignment or transfer of any Commitment of any Lender or the Loans
made pursuant thereto shall be registered in the Register only upon
delivery to the Administrative Agent of a Lender Assignment Agreement
duly executed by the assignor thereof. No assignment or transfer of any
Commitment of any Lender or the Loans made pursuant thereto shall be
effective unless such assignment or transfer shall have been recorded
in the Register by the Administrative Agent as provided in this
Section.
(ii) Each Borrower agrees that, upon the request by any Lender
to the Administrative Agent, such Borrower will execute and deliver to
such Lender, as applicable, an applicable Revolving Note, Term Note and
Swing Line Note evidencing the Loans made by such Lender to such
Borrower. Each Borrower hereby irrevocably authorizes each Lender to
make (or cause to be made) appropriate notations on the grid attached
to such Lender's Notes of such Borrower (or on any continuation of such
grid), which notations, if made, shall evidence, inter alia, the date
of, the outstanding principal amount of, and the interest rate and
Interest Period applicable to the Loans evidenced thereby. Such
notations shall, to the extent not inconsistent with the notations made
by the Administrative Agent in the Register, be conclusive and binding
on the Borrower that shall have issued such Note absent manifest error;
provided, however, that the failure of any Lender to make any such
notations shall not limit or otherwise affect any Obligations
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of the Borrowers or any other Obligor. The Loans evidenced by any such
Note and interest thereon shall at all times (including after
assignment pursuant to Section 11.11.1) be represented by one or more
Notes payable to the order of the payee named therein and its
registered assigns. A Note and the obligation evidenced thereby may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Note and the
obligation evidenced thereby in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of an
obligation evidenced by a Note shall be registered in the Register only
upon surrender for registration of assignment or transfer of the Note
evidencing such obligation, accompanied by a Lender Assignment
Agreement duly executed by the assignor thereof, and thereupon, if
requested by the assignee, one or more new Notes shall be issued by the
applicable Borrower to the designated assignee and the old Note shall
be returned by the Administrative Agent to the applicable Borrower
marked "exchanged". No assignment of a Note and the obligation
evidenced thereby shall be effective unless it shall have been recorded
in the Register by the Administrative Agent as provided in this
Section.
SECTION 2.10. European Monetary Union. If, as a result of the
implementation of the European Monetary Union (the "EMU"), (a) any Foreign
Currency ceases to be lawful currency of the nation issuing the same and is
replaced by a European common currency (the "Euro"), then any amount payable
hereunder in such replaced Foreign Currency by any Lender or any Borrower in
respect of a Credit Extension shall instead be payable in Euros and the amount
so payable shall be determined by translating the amount payable in such Foreign
Currency to Euros at the exchange rate recognized by the European Central Bank
for the purpose of implementing the EMU; and (b) any nation issuing a Foreign
Currency also issues or recognizes both the Foreign Currency and the Euro as the
national currency, any amounts payable hereunder by any Lender or any Borrower
in respect of a Credit Extension in such Foreign Currency shall be payable
either in such Foreign Currency or the Euro (determined in accordance with the
method described in the foregoing clause (a)), upon notice delivered to the
applicable Lender. Prior to the applicability of clause (a) or (b) of the
preceding sentence, each amount payable hereunder in any Foreign Currency will
continue to be payable only in such Foreign Currency. Each of the Borrowers and
the Lenders agree, at the request of any such party at the time of, or at any
time following, the implementation of the EMU, to enter into good faith
negotiations concerning an agreement to amend this Agreement in such manner as
any such party shall reasonably request in order to reflect the implementation
of the EMU and to place the parties hereto in the position they would have been
in had the EMU not been implemented. Notwithstanding anything to the contrary in
Section 11.1, in the event that the Borrowers and the Lenders are able to agree
to an amendment of this Agreement, which amendment solely addresses issues
raised by the EMU, this Agreement, as of such amendment's effective date, shall
be deemed to be amended by such amendment without the requirement of any further
action hereunder by the Lenders or the Required Lenders, as the case may be.
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SECTION 2.11. Canadian BAs. Not in limitation of any other provision of
this Agreement, but in furtherance thereof, the provisions of this Section 2.11
shall further apply to the acceptance, rolling over and conversion of Canadian
BAs.
SECTION 2.11.1. Funding of Canadian BAs. If the Administrative Agent
receives a Borrowing Request or a Continuation/Conversion Notice from the
Canadian Borrower requesting a Borrowing or a rollover of or a conversion into a
Canadian Loan by way of Canadian BAs, the Administrative Agent shall notify each
of the applicable Lenders, prior to 11:00 a.m., Toronto time, on the second
Business Day prior to the date of such Credit Extension, of such request and of
each such Lender's Percentage of such Canadian Loan. Each applicable Lender
shall, not later than 11:00 a.m., Toronto time, on the date of each Canadian
Loan by way of Canadian BAs (whether in respect of the Credit Extension or
pursuant to a rollover or conversion), accept drafts of the Canadian Borrower
which are presented to it for acceptance and which have an aggregate face amount
equal to such Lender's Percentage of the total Credit Extension being made
available by way of Canadian BAs on such date. With respect to each drawdown of,
rollover of or conversion into Canadian BAs, each such Lender shall not be
required to accept any draft which has a face amount which is not in an integral
multiple of Cdn $100,000. Concurrent with the acceptance of drafts of the
Canadian Borrower as aforesaid, each applicable Lender shall make available to
the Administrative Agent the aggregate Notional BA Proceeds with respect to the
Canadian BAs being purchased by such Lender (net of the aggregate amount
required to repay such Lender's outstanding Canadian BAs that are maturing on
such date and/or Canadian Prime Rate Loans of such Lender that are being
converted on such date). The Administrative Agent shall, upon fulfillment by the
Canadian Borrower of the terms and conditions set forth in Article V, make such
amount, if any, received from the applicable Lenders available to the Canadian
Borrower on the date of such Credit Extension by crediting the designated
account of the Canadian Borrower. Each Canadian BA to be accepted by any Lender
shall be accepted by such Lender at its Domestic Office located in Canada.
SECTION 2.11.2. Presigned Draft Forms. To enable the applicable Lenders
to accept Canadian BAs, the Canadian Borrower shall supply each such Lender with
such number of drafts as such Lender may reasonably request, duly endorsed and
executed on behalf of the Canadian Borrower. Each Lender agrees that, in respect
of the safekeeping of executed drafts of the Canadian Borrower which are
delivered to it for acceptance hereunder, it will exercise the same degree of
care which it gives to its own negotiable instruments; provided that such Lender
shall not be deemed to be an insurer thereof. Such Lender will, upon request by
the Canadian Borrower, promptly advise the Canadian Borrower of the number and
designations, if any, of the uncompleted drafts then held by it. The signature
of any duly authorized officer of the Canadian Borrower on a draft may be
mechanically reproduced in facsimile and drafts and Canadian BAs bearing such
facsimile signature shall be binding upon the Canadian Borrower as if they had
been manually signed by such officer. Notwithstanding that any of the
individuals whose manual or facsimile signature appears on any draft as one of
such officers may no longer hold
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office at the date thereof or at the date of its acceptance by such Lender
hereunder or at any time thereafter, any draft or Canadian BA so signed shall be
valid and binding upon the Canadian Borrower. The receipt by the Administrative
Agent of a request for a Borrowing by way of Canadian BAs shall be each
applicable Lender's sufficient authority to complete, and each applicable Lender
shall, subject to the terms and conditions of this Agreement, complete the
pre-signed forms of drafts in accordance with such request and the advice of the
Administrative Agent as to the amount of the Canadian BAs to be accepted by such
Lender, and the drafts so completed shall thereupon be deemed to have been
presented for acceptance. Except as set forth in the immediately preceding
sentence, no Lender shall complete any pre-signed forms of drafts.
SECTION 2.11.3. Depository Bills and Notes Act. It is the intention of
the parties that all Canadian BAs accepted by Lenders under this Agreement after
clearing services acceptable to the Canadian Borrower, the applicable Lenders
and the Administrative Agent are available, shall be issued in the form of a
"depository ▇▇▇▇" and deposited with a "clearing house," as those terms are
defined in the Depository Bills and Notes Act, S.C. 1998, c. 13 (the "Act"). At
that time, the Administrative Agent shall, in consultation with the Canadian
Borrower and the applicable Lenders, establish and notify the Canadian Borrower
and the applicable Lenders of such procedures, consistent with the terms of this
Agreement and the requirements of the Act, as are reasonably necessary to
accomplish the parties' intention. The Lenders are also authorized at that time
to issue Canadian BAs in the form of depository bills as replacements for
previously issued Canadian BAs (on the same terms as those being replaced) and
deposit them with a clearing house against cancellation of the previously issued
Canadian BAs. All such depository bills so issued shall be governed by the
provisions of Article II. On and after the establishment of such clearing
services, any request by the Canadian Borrower for the acceptance of Canadian
BAs shall, notwithstanding anything herein to the contrary, be deemed to be a
request for the issuance of a Canadian BA in the form of a depository ▇▇▇▇ and
the deposit thereof with a clearing house, in each case as referred to in the
Act.
SECTION 2.11.4. Special Provisions Relating to Acceptance Notes. (a)
The Canadian Borrower and each applicable Lender hereby acknowledge and agree
that from time to time certain Lenders which are not Canadian chartered banks or
which are Canadian chartered banks listed on Schedule II of the Bank Act
(Canada) may not be authorized to or may, as a matter of general corporate
policy, elect not to accept Canadian BA drafts, and the Canadian Borrower and
each applicable Lender agrees that any such Lender may purchase Acceptance Notes
of the Canadian Borrower in accordance with the provisions of Section 2.11.4(b)
in lieu of accepting Canadian BAs for its account.
(b) In the event that any Lender described in Section 2.11.4(a) above
is unable to, or elects as a matter of general corporate policy not to, accept
Canadian BAs hereunder, such Lender shall not accept Canadian BAs hereunder, but
rather, if the Canadian Borrower requests the acceptance of such Canadian BAs,
the Canadian Borrower shall deliver to such Lender non-
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interest bearing promissory notes (each, an "Acceptance Note") of the Canadian
Borrower, substantially in the form of Exhibit A-4 hereto, having the same
maturity as the Canadian BAs that would otherwise be accepted by such Lender and
in an aggregate principal amount equal to the undiscounted face amount of such
Canadian BAs. Each such Lender hereby agrees to purchase each Acceptance Note
from the Canadian Borrower at a purchase price equal to the Notional BA Proceeds
for a Lender listed on Schedule II to the Bank Act (Canada) which would have
been applicable if a Canadian BA draft had been accepted by such bank and such
Acceptance Notes shall be governed by the provisions of this Article II as if
they were Canadian BAs.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. Each Borrower shall repay in
full the unpaid principal amount of each Loan made to it upon the Stated
Maturity Date therefor. Prior thereto, payments and prepayments of Loans shall
or may be made as set forth below.
(a) From time to time on any Business Day, the Company or a
Foreign Borrower, as the case may be, may make a voluntary prepayment,
in whole or in part, of the outstanding principal amount of any
(i) Loans (other than Swing Line Loans and Canadian
BAs); provided, however, that
(A) any such prepayment of the Loans of any
Tranche shall be made pro rata among Loans of such
Tranche of the same type and, if applicable, having
the same Interest Period of all Lenders that have
made such Loans;
(B) each Borrower shall comply with Section
4.4 in the event that any LIBO Rate Loan is prepaid
on any day other than the last day of the Interest
Period for such Loan;
(C) all such voluntary prepayments shall
require at least one Business Day's notice in the
case of Base Rate Loans and three Business Days'
notice in the case of LIBO Rate Loans, but no more
than five
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Business Days' notice in the case of any Loans, in
each case in writing to the Administrative Agent; and
(D) all such voluntary partial prepayments
shall be in a minimum aggregate amount of $500,000
(or, in the case of Foreign Currency Loans, the
multiple of 100,000 units of the Currency of such
Loans the U.S. Dollar Equivalent of which is nearest
to $500,000) or any larger integral multiple of
$100,000 (or, in the case of Foreign Currency Loans,
the multiple of 50,000 units of the Currency of such
Loans the U.S. Dollar Equivalent of which is nearest
to $100,000) , or in the aggregate principal amount
of all Loans of the applicable Tranche and type then
outstanding; or
(ii) Swing Line Loans, provided that
(A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line
Lender on or before 1:00 p.m., New York time, on the
day of such prepayment (such notice to be confirmed
in writing by the Company within 24 hours
thereafter); and
(B) all such voluntary partial prepayments
shall be in a minimum aggregate amount of $50,000 or
any larger integral multiple of $10,000, or in the
aggregate principal amount of all Swing Line Loans
then outstanding.
In addition, from time to time on any Business Day, the Company or any
Foreign Borrower may, upon not less than one Business Day's notice to
the Administrative Agent, elect to deposit with the Administrative
Agent Canadian Dollars in immediately available funds to be held by the
Administrative Agent, pursuant to collateral arrangements satisfactory
to it, for application to the payment of Canadian BAs designated by
such Borrower in such notice (provided that any such designation shall
be made pro rata among the Lenders on the basis of the aggregate face
amount of Canadian BAs then outstanding). If such a deposit is made,
then such Canadian BAs shall (to the extent of such deposit) be deemed
no longer outstanding for purposes of this Agreement.
(b) No later than five Business Days following the delivery by
the Company of its annual audited financial reports required pursuant
to clause (b) of Section 7.1.1 (beginning with the financial reports
delivered in respect of the 1998 Fiscal Year), the Company shall
deliver to the Administrative Agent a calculation of the Excess Cash
Flow for the Fiscal Year last ended (or, in the case of the 1998 Fiscal
Year, from the Original Closing Date through December 31, 1998) and, no
later than five Business Days
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following the delivery of such calculation, make or caused to be made a
mandatory prepayment of the Term Loans in an amount equal to (i) 50% of
the Excess Cash Flow (if any) for such Fiscal Year (or period) less
(ii) the aggregate amount of all voluntary prepayments of the principal
of the Term Loans actually made in such Fiscal Year pursuant to clause
(a) of Section 3.1.1, to be applied as set forth in Section 3.1.2;
provided, however, that no such prepayment shall be required to be made
beyond the extent that the amount of Debt as reduced by giving effect
to such prepayment would result, on a pro forma basis, in a Leverage
Ratio of 3.50:1 or less as of the end of the immediately preceding
Fiscal Quarter.
(c) No later than one Business Day (in the case of Net Debt
Proceeds) or 30 calendar days (in the case of Net Disposition Proceeds)
following the receipt of any Net Disposition Proceeds or Net Debt
Proceeds by the Company or any of its Restricted Subsidiaries, the
Company shall deliver to the Administrative Agent a calculation of the
amount of such Net Disposition Proceeds or Net Debt Proceeds, as the
case may be, and, to the extent the amount of such Net Disposition
Proceeds or Net Debt Proceeds, as the case may be, with respect to any
single transaction or series of related transactions, exceeds
$2,500,000, make or cause to be made a mandatory prepayment of (or
shall cash collateralize, in the case of Canadian BAs) the Term Loans
in an amount equal to 100% of such Net Disposition Proceeds or Net Debt
Proceeds, as the case may be, to be applied as set forth in Section
3.1.2; provided, that no mandatory prepayment (or cash
collateralization in the case of Canadian BAs) on account of such Net
Disposition Proceeds shall be required under this clause if the Company
informs the Agents no later than 30 days following the receipt of any
Net Disposition Proceeds of its or its Restricted Subsidiary's good
faith intention to apply such Net Disposition Proceeds to the
acquisition of other assets or property consistent with the Formica
Business (including by way of merger or Investment) within 365 days
following the receipt of such Net Disposition Proceeds, with the amount
of such Net Disposition Proceeds unused after such 365-day period being
applied to the Loans as set forth in Section 3.1.2.
(d) Concurrently with the consummation of any transaction
giving rise to any Net Equity Proceeds, the Company shall deliver to
the Administrative Agent a calculation of the amount of such Net Equity
Proceeds, and no later than five Business Days following the delivery
of such calculation, and, to the extent that the amount of such Net
Equity Proceeds with respect to any single transaction or series of
related transactions exceeds $2,500,000, make or cause to be made a
mandatory prepayment of the Term Loans (or shall cash collateralize, in
the case of Canadian BAs) in an amount equal to 50% of such Net Equity
Proceeds to be applied as set forth in Section 3.1.2; provided,
however, that no such prepayment (or cash collateralization in the case
of Canadian BAs) shall be required to be made beyond the extent that
the amount of Debt as reduced by giving
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effect to such prepayment would result, on a pro forma basis, in a
Leverage Ratio of 3.50:1 or less as of the end of the immediately
preceding Fiscal Quarter.
(e) Concurrently with the receipt by the Company or any of its
Restricted Subsidiaries of any Casualty Proceeds in excess of
$2,500,000 (individually or in the aggregate over the course of a
Fiscal Year), the Company shall deposit or cause to be deposited such
Casualty Proceeds in an account maintained with the Administrative
Agent and, within 60 days following the receipt by the Company or any
of its Restricted Subsidiaries of such Casualty Proceeds, direct the
Administrative Agent to apply such Casualty Proceeds to prepay the Term
Loans (or cash collateralize in the case of Canadian BAs) in an amount
equal to 100% of such Casualty Proceeds, to be applied as set forth in
Section 3.1.2; provided, however, that no mandatory prepayment (or cash
collateralization, in the case of Canadian BAs) on account of Casualty
Proceeds shall be required hereunder if the Company informs the Agents
no later than 60 days following the occurrence of the Casualty Event
resulting in such Casualty Proceeds of its or its Restricted
Subsidiary's good faith intention to apply such Casualty Proceeds to
the rebuilding or replacement (including through the acquisition or
construction of facilities providing equivalent capacity) of the assets
or property subject to such Casualty Event or the acquisition of other
assets or property consistent with the Formica Business (including by
way of merger or investment) and in fact uses such Casualty Proceeds to
rebuild or replace the assets or property subject to such Casualty
Event or to acquire such other assets or property within 365 days
following the receipt of such Casualty Proceeds, with the amount of
such Casualty Proceeds unused after such 365-day period being applied
to the Loans pursuant to Section 3.1.2.
(f) On each date when any reduction in any Revolving Loan
Commitment Amount shall become effective in respect of any Revolving
Loan Commitment, including pursuant to Section 2.2, the Company or a
Foreign Borrower, as the case may be, shall make a mandatory prepayment
of Revolving Loans or shall cash collateralize Canadian BAs, if
applicable, (in the relevant Currency) and (if applicable and
necessary) Swing Line Loans, and (if necessary) deposit with the
Administrative Agent cash collateral for Letter of Credit Outstandings
(in the relevant Currency) in an aggregate amount equal to the excess,
if any, of the sum of (i) the aggregate outstanding principal amount of
all Revolving Loans (in the relevant Currency) and, with respect only
to the U.S. Revolving Loan Commitment, Swing Line Loans and (ii) the
aggregate amount of all Letter of Credit Outstandings (in the relevant
Currency), in each case under such Revolving Loan Commitment, over the
applicable Revolving Loan Commitment Amount in respect of such
Revolving Loan Commitment, in each case as so reduced.
(g) On each date when any reduction in the Total Revolving
Loan Commitment Amount shall become effective, including pursuant to
Section 2.2, the Company or a
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Foreign Borrower, as the case may be, shall make a mandatory prepayment
of Revolving Loans or cash collateralize Canadian BAs, if applicable,
and (if necessary) Swing Line Loans and (if necessary) deposit with the
Administrative Agent cash collateral for Letter of Credit Outstandings
in an aggregate amount equal to the excess, if any, of the sum of (i)
the aggregate outstanding principal amount of all Revolving Loans
(included, in the case of Foreign Currency Revolving Loans, at the U.S.
Dollar Equivalent thereof) and Swing Line Loans and (ii) the Letter of
Credit Outstandings, over the Total Revolving Loan Commitment Amount as
so reduced.
(h) On the Stated Maturity Date and on each Quarterly Payment
Date occurring during any period set forth below, the Company or a
Foreign Borrower, as the case may be, shall make a scheduled repayment
of the outstanding principal amount, if any, of its Term Loans, applied
as set forth in Section 3.1.2, so that the aggregate amount of such
repayments shall equal the amount set forth below opposite such Stated
Maturity Date or period, as applicable (as such amounts may have
otherwise been reduced pursuant to this Agreement); provided that, with
respect to repayments of Foreign Currency Term Loans made pursuant to
this clause such repayments shall be made in the applicable Foreign
Currency in an amount equal to the Foreign Currency Equivalent thereof
determined by reference to exchange rates applied in respect of such
Foreign Currency Term Loans on the date such Foreign Currency Term
Loans were made:
Scheduled
Principal
Period Repayment
------ ---------
6/15/99 to 6/15/00 $531,250
6/16/00 to 6/15/01 $2,125,000
6/16/01 to 6/15/02 $4,250,000
6/16/02 to 6/15/03 $5,312,500
6/15/03 to Stated
Maturity Date $9,031,250
(i) On the Business Day following the date upon which the
Company shall have delivered a certificate required to be delivered
pursuant to clause (h) of Section 7.1.1, the Company or a Foreign
Borrower, as the case may be, shall,
(i) if the U.S. Dollar Equivalent of the aggregate
outstanding principal amount of all Committed Foreign Currency
Revolving Loans and Committed Foreign Currency Letter of
Credit Outstandings in any Foreign Currency is equal to or
greater than 105% of the applicable Foreign Currency Revolving
Loan
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Commitment Amount with respect to such Foreign Currency, make
a prepayment of its Committed Foreign Currency Revolving Loans
in such Foreign Currency (or cash collateralize Canadian BAs,
if applicable) and (if necessary) deposit with the
Administrative Agent cash collateral for the Foreign Currency
Letter of Credit Outstandings in respect of such Foreign
Currency in an amount equal to such excess over the applicable
Foreign Currency Revolving Loan Commitment Amount; and
(ii) if the U.S. Dollar Equivalent of the sum of the
aggregate outstanding principal amount of all Foreign Currency
Revolving Loans and all Foreign Currency Letter of Credit
Outstandings is equal to or greater than 105% of the Foreign
Currency Revolving Loan Limit, make a prepayment of its
Foreign Currency Revolving Loans (or cash collateralize
Canadian BAs, if applicable) and (if necessary) deposit with
the Administrative Agent cash collateral for the Foreign
Currency Letter of Credit Outstandings (in the applicable
Foreign Currency) in an amount equal to such excess over the
Foreign Currency Revolving Loan Limit.
(j) Following the prepayment in full of the Term Loans, on the
date the Term Loans would otherwise have been required to be prepaid on
account of any Net Disposition Proceeds, Net Debt Proceeds, Excess Cash
Flow, Net Equity Proceeds or Casualty Proceeds, the Company or a
Foreign Borrower, as the case may be, shall first, prepay such Tranche
or Tranches of Revolving Loans and Swing Line Loans, to the extent then
outstanding (or cash collateralize Canadian BAs, if applicable), as the
Company shall elect, and, second, deposit with the Administrative Agent
cash collateral for Letter of Credit Outstandings, in an aggregate
amount equal to the amount by which the Term Loans would otherwise have
been required to be prepaid if Term Loans had been outstanding.
(k) Immediately upon any acceleration of the Stated Maturity
Date of any Loans or Obligations pursuant to Section 8.2 or Section
8.3, the Company or a Foreign Borrower, as the case may be, shall repay
all outstanding Loans and other Obligations, and cash collateralize all
outstanding Canadian BAs unless, pursuant to Section 8.3, only a
portion of all Loans and other Obligations are so accelerated (in which
case the portion so accelerated shall be so prepaid).
(l) Immediately upon the receipt by the Spanish Term Borrower
of the proceeds of any Spanish Term Loan, the Company or a Foreign
Borrower, as the case may be, shall prepay U.S. Term Loans, U.K. Term
Loans or Canadian Term Loans (as elected by the Company) in an amount
equal to such proceeds.
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Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. If any
such prepayment or repayments described above relate to Canadian BAs which have
not matured, the Canadian Borrower shall at such time deposit in a cash
collateral account opened and maintained by the Administrative Agent, an amount
equal to the aggregate undiscounted face amount (or the portion thereof relating
to the portion of all Canadian Loans so accelerated, in the case of clause (i)
of this Section 3.1.1) of all such unmatured Canadian BAs to be so repaid or
prepaid and such amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of such maturing Canadian BAs. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
clause (a), (i) or (j) of this Section 3.1.1 shall cause a reduction in any
Revolving Loan Commitment Amount or the Swing Line Loan Commitment Amount, as
the case may be. Any Letter of Credit outstanding that is cash collateralized
pursuant to clause (f), (g) or (i) of this Section 3.1.1 shall not thereafter,
so long as, and to the extent that, such Letter of Credit remains so cash
collateralized, be considered to be outstanding for purposes of such clauses
(f), (g) or (i) of this Section 3.1.1.
SECTION 3.1.2. Application. (a) Subject to clause (b) below, each
prepayment or repayment of principal of the Loans of any Tranche shall be
applied, to the extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second, to the principal
amount thereof being maintained as Fixed Rate Loans.
(b) Each prepayment of Term Loans made pursuant to clauses (a), (b),
(c), (d), (e), (h) and (l) of Section 3.1.1 shall be applied, (i) on a pro rata
basis, to the outstanding principal amount of all Tranches of Term Loans and
(ii) except in the case of prepayments pursuant to clause (h) of Section 3.1.1,
in direct order of maturity of the remaining scheduled quarterly amortization
payments under clause (h) of Section 3.1.1; provided that the Company may make,
or cause other Borrowers to make, any such prepayments to any Lender of Term
Loans of such Tranches as the Company shall elect so long as the aggregate
amount of all such prepayments made to each Lender is equal to its pro rata
portion of the aggregate prepayments made to all Lenders; provided, further,
that if the Company at any time elects in writing, in its sole discretion, to
permit any Lender of Term Loans to decline to have such Term Loans prepaid, then
any Lender with Term Loans outstanding may, by delivering a notice to the Agents
at least one Business Day prior to the date that such prepayment is to be made,
decline to have its pro rata portion of such Term Loans prepaid with the amounts
set forth above.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of the Loans (other than interest payable with respect to Canadian BAs)
shall accrue and be payable in accordance with this Section 3.2.
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SECTION 3.2.1. Rates.
(a) Each Base Rate Loan shall accrue interest on the unpaid principal
amount thereof for each day from and including the day upon which such Loan was
made or converted to a Base Rate Loan to but excluding the date such Loan is
repaid or converted to a Fixed Rate Loan at a rate per annum equal to the sum of
the Alternate Base Rate (if such Loan is not a Canadian Loan) or Canadian Prime
Rate (if such loan is a Canadian Loan), as applicable, for such day plus the
Applicable Margin for such Loan on such day.
(b) Each Committed LIBO Rate Loan in any Currency shall accrue interest
on the unpaid principal amount thereof for each day during each Interest Period
applicable thereto at a rate per annum equal to the sum of the LIBO Rate (or
(i), in the case of U.S. Loans, LIBO Rate (Reserve Adjusted) and (ii) in the
case of U.K. Loans, LIBO Rate (Additional Cost Adjusted)) for such Currency and
Interest Period plus the Applicable Margin for such Loan on such day.
(c) Each Uncommitted Revolving Loan shall accrue interest on the unpaid
principal amount thereof for each day from and including the day upon which such
Loan was made to but excluding the date such Loan is repaid at a rate per annum
equal to the Uncommitted Interest Rate for such Loan.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan shall have become due and payable (whether on the applicable Stated
Maturity Date, upon acceleration or otherwise), or any other monetary Obligation
(other than overdue Reimbursement Obligations which shall bear interest as
provided in Section 2.8.2) of any Borrower shall have become due and payable,
such Borrower shall pay, but only to the extent permitted by law, interest
(after, as well as before, judgment) on such amounts at a rate per annum equal
to (i) in the case of any overdue principal of Loans, overdue interest thereon,
overdue commitment fees or other overdue amounts in respect of Loans or other
obligations (or the related Commitments) under a particular Tranche,(x) in the
case of Loans other than Foreign Currency Loans, the rate that would otherwise
be applicable to Base Rate Loans under such Tranche pursuant to clause (a) of
Section 3.2.1 plus 2%, (y) in the case of Committed Foreign Currency Loans, the
rate that would otherwise be applicable to such Loans under clause (b) of
Section 3.2.1 plus 2%, and (z) in the case of Uncommitted Revolving Loans, the
rate that would otherwise be applicable to such Loans pursuant to clause (c) of
Section 3.2.1 plus 2%, and (ii) in the case of other overdue monetary
Obligations, the rate that would otherwise be applicable to Committed Revolving
Loans that were Base Rate Loans plus 2%.
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SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) in the case of a LIBO Rate Loan or an Uncommitted Absolute
Rate Revolving Loan, on the date of any payment or prepayment, in whole
or in part, of principal outstanding on such Loan, to the extent of the
unpaid interest accrued through such date on the principal so paid or
prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the Closing Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period);
(e) with respect to the principal amount of any Base Rate
Loans converted into Fixed Rate Loans on a day when interest would not
otherwise have been payable pursuant to clause (c) above, on the date
of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers agree to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. Each Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment to such Borrower, for each day during the period (including any
portion thereof when any of the Lenders' applicable Revolving Loan Commitments
are suspended by reason of the Company's inability to satisfy any condition of
Article V) commencing on the Original Closing Date and continuing to but
excluding the Revolving Loan Commitment Termination Date, a commitment fee on
such Lender's Percentage of the unused portion, whether or not then available,
of the Revolving Loan Commitment Amount with respect to such Revolving Loan
Commitment (net of Letter of Credit Outstandings in respect of the related
Letter of Credit Commitment) for such day at a rate per
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annum equal to the Applicable Commitment Fee for such day. Such commitment fees
shall be payable by the applicable Borrower in arrears on each Quarterly Payment
Date, commencing with the first such day following the Original Closing Date,
and on the Revolving Loan Commitment Termination Date. The making of Swing Line
Loans and Uncommitted Revolving Loans shall not constitute usage of the
applicable Revolving Loan Commitment with respect to the calculation of
commitment fees to be paid by the Borrowers to the applicable Lenders however,
the acceptance of Canadian BAs shall constitute usage of the Canadian Revolving
Loan Commitment with respect to the calculation of such commitment fee. Any term
or provision hereof to the contrary notwithstanding, commitment fees payable for
any period prior to the Original Closing Date shall be payable in accordance
with the Fee Letter. Payments by the Company to the Swing Line Lender in respect
of accrued interest on Swing Line Loans shall be net of the commitment fee
payable in respect of the Swing Line Lender's Revolving Loan Commitment.
SECTION 3.3.2. Administrative Agent Fee. The Company agrees to pay an
annual administration fee to the Administrative Agent, for its own account, in
the amount set forth in the Administrative Agent's Fee Letter, payable in
advance on the Original Closing Date and quarterly thereafter.
SECTION 3.3.3. Letter of Credit Fee. Each Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the applicable Issuer and each
other Lender that has a Percentage greater than zero in respect of the
applicable Revolving Loan Commitment Amount, a Letter of Credit fee (the "Letter
of Credit Fee") for each day on which there shall be any Letters of Credit
outstanding under any Letter of Credit Commitment to such Borrower, at a rate
per annum equal to (i) with respect to each standby Letter of Credit, the then
Applicable Margin for Revolving Loans maintained as LIBO Rate Loans, multiplied
by the Stated Amount of each such Letter of Credit; and (ii) with respect to
each commercial Letter of Credit, 1.25% multiplied by the Stated Amount of each
such Letter of Credit, such fees being payable in U.S. Dollars quarterly in
arrears on each Quarterly Payment Date. Each Borrower further agrees to pay to
the applicable Issuer quarterly in arrears on each Quarterly Payment Date, an
issuance fee in an amount equal to .125% (or, if the Company and the applicable
Issuer shall have agreed to another percentage, such other percentage),
multiplied by the Stated Amount of each such Letter of Credit, such fees being
payable quarterly in arrears on each Quarterly Payment Date.
ARTICLE IV
CERTAIN LIBO RATE, CANADIAN BA AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Company and the Lenders,
be conclusive and
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binding on the Borrowers) that the introduction of or any change in or in the
interpretation of any law, in each case after (i) in the case of any such
introduction or change with respect to Committed Loans, the date upon which such
Lender shall have become a Lender hereunder, and (ii) in the case of any such
introduction or change with respect to Uncommitted Revolving Loans, the date on
which such Lender submitted an Uncommitted Interest Quote in respect of such
Uncommitted Revolving Loan pursuant to Section 2.4, makes it unlawful, or any
central bank or other governmental authority asserts, after such date, that it
is unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan, the obligations of such Lender to make,
continue, maintain or convert any Loans as or to LIBO Rate Loans shall, upon
such determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist (with the date of such notice being the "Reinstatement Date"), and (i) all
LIBO Rate Loans previously made by such Lender shall (A) in the case of U.S.
Loans, automatically convert into Base Rate Loans and (B) in the case of Foreign
Currency Loans, accrue interest at each applicable Lender's cost of funds, as
reasonably determined and as notified by such Lender to the Administrative Agent
and the Company, plus the Applicable Margin in respect of such Foreign Currency
Loans, in each case at the end of the then current Interest Periods with respect
thereto or sooner, if required by such law or assertion, and (ii) all Loans
thereafter to be made by such Lender and outstanding prior to the Reinstatement
Date shall (A) in the case of U.S. Loans, be made as Base Rate Loans, with
interest thereon being payable on the same date that interest is payable with
respect to the corresponding Borrowing of LIBO Rate Loans made by Lenders not so
affected, and (B) in the case of Foreign Currency Loans, accrue interest at each
applicable Lender's cost of funds, as reasonably determined and as notified by
such Lender to the Administrative Agent and the Company, plus the Applicable
Margin in respect of such Foreign Currency Loans.
SECTION 4.2. Deposits Unavailable; Circumstances Making Canadian BAs
Unavailable. (a) If the Administrative Agent shall have determined that (i)
deposits in the relevant Currency and amount and for the relevant Interest
Period are not available to the Administrative Agent in its relevant market, or
(ii) by reason of circumstances affecting the Administrative Agent's relevant
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans in a particular Currency, then, upon
notice from the Administrative Agent to the Company and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue
any Loans as, or to convert any Loans into, LIBO Rate Loans shall forthwith be
suspended and, in the case of U.S. Loans, such Loans shall accrue interest at
the Base Rate plus the Applicable Margin in respect of such Loans and, in the
case of Foreign Currency Loans, such Loans shall accrue interest at each
applicable Lender's cost of funds, as reasonably determined and as notified by
such Lender to the Administrative Agent and the Company, plus the Applicable
Margin in respect of such Loans, in each case from the end of the then current
Interest Period applicable thereto, until the Administrative Agent shall notify
the Company and the Lenders that the circumstances causing such suspension no
longer exist, and subsequent LIBO Rate Loans in respect of such Currency shall
be made at an interest
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rate equal to, in the case of U.S. Loans, the Base Rate plus the Applicable
Margin in respect of such Loans and, in the case of Foreign Currency Loans, each
applicable Lender's cost of funds, as reasonably determined and as notified by
such Lender to the Administrative Agent and the Company, plus the Applicable
Margin in respect of such Loans.
(b) If the Administrative Agent shall have determined that by reason of
circumstances affecting the Canadian money market, there is no market for
Canadian BAs, then the right of the Canadian Borrower to request the acceptance
of Canadian BAs and the acceptance thereof shall be suspended until the
Administrative Agent determines that the circumstances causing such suspension
no longer exist and the Administrative Agent so notifies the Canadian Borrower
and any Committed Loan Borrowing Request or Continuation/Conversion Notice
requesting the acceptance of Canadian BAs shall be canceled and the Loans
requested therein shall be made as, continued as or converted into Canadian
Prime Rate Loans or, in the case of a Credit Extension, if requested by the
Canadian Borrower at least one Business Day prior to the scheduled date of the
Credit Extension, not be made.
SECTION 4.3. Increased Fixed Rate Loan Costs, etc. The applicable
Borrower agrees to reimburse each Lender for any increase in the cost to such
Lender of, or any reduction in the amount of any sum receivable by such Lender
in respect of, making, continuing or maintaining (or of its obligation to make,
continue or maintain) any Loans as, or of converting (or of its obligation to
convert) any Loans into, Fixed Rate Loans (excluding any amounts, whether or not
constituting Taxes, referred to in Section 4.6) arising as a result of any
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any court,
central bank, regulator or other governmental authority that occurs after (i) in
the case of any such increased costs or reduced return in respect of Committed
Loans, the date upon which such Lender became a Lender hereunder and (ii) in the
case of any such increased costs or reduced return in respect of Uncommitted
Revolving Loans, the date on which such Lender submitted an Uncommitted Interest
Quote with respect to such Uncommitted Revolving Loan pursuant to Section 2.4.
Such Lender shall promptly notify the Administrative Agent and the Company in
writing of the occurrence of any such event, and such notice shall state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such Lender for such increased cost or reduced amount. Such
additional amounts shall be payable by the applicable Borrower directly to such
Lender within five days of its receipt of such notice, and such notice shall, in
the absence of manifest error, be conclusive and binding on the Borrowers.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan
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into, a Fixed Rate Loan, but excluding any loss of margin after the date of any
such conversion, repayment, prepayment or failure to borrow, continue or
convert) as a result of (i) any conversion or repayment or prepayment of the
principal amount of any Fixed Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to Section 3.1
or otherwise, (ii) any Loans not being borrowed as Fixed Rate Loans in
accordance with the Borrowing Request therefor, or (iii) any Loans not being
continued as, or converted into, Fixed Rate Loans in accordance with the
Continuation/Conversion Notice therefor, then, upon the written notice of such
Lender to the applicable Borrower (with a copy to the Administrative Agent),
such Borrower shall, within five days of its receipt thereof, pay directly to
such Lender such amount as will (in the reasonable determination of such Lender)
reimburse such Lender for such loss or expense. Such written notice (which shall
include calculations in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on such Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority, in each case occurring after (i) in the case of
any such change, introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in in respect of Committed Loans, the applicable
Lender becomes a Lender hereunder, and (ii) in the case of any such change,
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in in respect of Uncommitted Revolving Loans, the date upon which such
Lender submitted an Uncommitted Interest Quote in respect of such Uncommitted
Revolving Loan pursuant to Section 2.4, affects or would affect the amount of
capital required or expected to be maintained by any Lender or any Person
controlling such Lender, and such Lender determines (in its sole and absolute
discretion) that the rate of return on its or such controlling Person's capital
as a consequence of its Commitments, participation in Letters of Credit,
acceptance of or funding of Canadian BAs or the Loans made by such Lender is
reduced to a level below that which such Lender or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any such
case upon notice from time to time by such Lender to the Company, the applicable
Borrower shall immediately pay directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrowers. In determining such amount, such Lender may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable; provided, that such Lender may not impose materially greater
costs on the Borrowers than on other similarly situated borrowers by virtue of
any such averaging or attribution method.
SECTION 4.6. Taxes. (a) All payments by the Borrowers of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations, fees and expenses) shall be made free and clear of
and without deduction for any present or
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future income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding (i) any income, excise, stamp or franchise taxes and
other similar taxes, fees, duties, withholdings or other charges imposed on any
of the Agents as a result of a present or former connection between the
applicable lending office (or office through which it performs any of its
actions as Agent) of such Agent, and any income, excise, stamp or franchise
taxes and other similar taxes, fees, duties, withholdings or other charges
imposed on any Lender as a result of a present or former connection between the
applicable lending office of such Lender, in each case, 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 such Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or taken any action to enforce,
this Agreement or any Note) or (ii) any income, excise, stamp or franchise taxes
and other similar taxes, fees, duties, withholdings or other charges to the
extent that they are in effect and would apply (x) as of the date any Person
becomes a Lender or Assignee Lender to the extent such taxes, fees, duties,
withholdings or other charges relate to payments other than payments in respect
of Uncommitted Revolving Loans, (y) as of the date on which such Lender
submitted an Uncommitted Interest Quote with respect to such Uncommitted
Revolving Loans pursuant to Section 2.4, to the extent such taxes, fees, duties,
withholdings or other charges become applicable as a result of or in connection
with the Uncommitted Revolving Loans, or (z) in either case, as of the date that
any Lender changes its applicable lending office, to the extent such taxes
become applicable as a result of such change (other than a change in an
applicable lending office made pursuant to Section 4.10 below) (such
non-excluded items being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by any Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
such Borrower will 1) pay directly to the relevant taxing authority the full
amount required to be so withheld or deducted, 2) promptly forward to the
Administrative Agent an official receipt or other documentation available to
such Borrower reasonably satisfactory to the Administrative Agent evidencing
such payment to such authority, and 3) pay to the Administrative Agent for the
account of the applicable Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by each Lender will
equal the full amount such applicable Lender would have received had no such
withholding or deduction been required; provided, however, that the Company
shall not be required to pay any such additional amounts in respect of amounts
payable to any Lender or Agent that is not organized under the laws of the
United States or a state thereof if such Lender or Agent fails to comply with
the requirements of clause (b) of Section 4.6.
Moreover, if any Taxes are directly asserted against any of the Agents
or any Lender with respect to any payment received by such Agents or such Lender
hereunder, such Agents or such Lender may pay such Taxes and the applicable
Borrower will promptly pay to such Person such additional amount (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such Person (including any Taxes on such additional amount) shall
equal
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the amount of such Taxes paid by such Person; provided, however, that the
applicable Borrower shall not be obligated to make payment to the Lenders or the
Agents (as the case may be) pursuant to this sentence in respect of penalties or
interest attributable to any Taxes, if written demand therefor has not been made
by such Lenders or the Agents within 60 days from the date on which such Lenders
or the Agents knew of the imposition of Taxes by the relevant taxing authority
or for any additional imposition which may arise from the failure of the Lenders
or the Agents to apply payments in accordance with the applicable tax law after
any Borrower has made the payments required hereunder; provided, further, that
the Company shall not be required to pay any such additional amounts in respect
of any amounts payable to any Lender or Agent (as the case may be) that is not
organized under the laws of the United States or a state thereof to the extent
the related Tax is imposed as a result of such Lender or Agent failing to comply
with the requirements of clause (b) of Section 4.6. After a Lender or an Agent
(as the case may be) learns of the imposition of Taxes, such Lender or Agent
will act in good faith to notify the Borrowers of their obligations hereunder as
soon as reasonably possible.
If any Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, such Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
(b) Each Non-U.S. Lender shall, (i) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender listed on
the signature pages hereof, or, in the case of an Assignee Lender, on or prior
to the date it becomes a Lender, execute and deliver to the Company and the
Administrative Agent, two or more (as the Company or the Agents may reasonably
request) United States Internal Revenue Service Forms 4224 or Forms 1001 (or
successor forms) or, solely if such Lender is claiming exemption from United
States withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", United States Internal Revenue Service
Forms W-8 and a certificate signed by a duly authorized officer of such Lender
representing that such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, or such other forms or documents (or successor forms
or documents), appropriately completed, establishing that payments to such
Lender are exempt from withholding or deduction of Taxes imposed by the United
States; and (ii) deliver to the Company and the Administrative Agent two further
copies of any such form or documents on or before the date that any such form or
document expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent such form or document previously delivered
by it to the Company.
(c) If the Company determines in good faith that a reasonable basis
exists for contesting the imposition of a Tax with respect to a Lender or any of
the Agents, the relevant Lender or Agent, as the case may be, shall cooperate
with the Borrowers in challenging such Tax at the
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Borrowers' expense if requested by the Company; provided, however, that nothing
in this Section 4.6 shall require any Lender to submit to the Company or any
other Person any tax returns or any part thereof, or to prepare or file any tax
returns other than as such Lender in its sole discretion shall determine.
(d) If a Lender or an Agent shall receive a refund (including any
offset or credits) from a taxing authority (as a result of any error in the
imposition of Taxes by such taxing authority) of any Taxes paid by any Borrower
pursuant to subsection 4.6(a) above, such Lender or the Agent (as the case may
be) shall promptly pay such Borrower the amount so received, together with any
interest from the taxing authority with respect to such refund, net of any tax
liability incurred by such Lender or Agent that is attributable to the receipt
of such refund and such interest.
(e) Each Lender and each Agent agrees, to the extent reasonable and
without material cost to it, to cooperate with the Borrowers to minimize any
amounts payable by the Borrowers under this Section 4.6.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrowers pursuant to this
Agreement or any other Loan Document shall be made by the Borrowers to the
Administrative Agent for the pro rata account of the Lenders, Agents or
Arranger, as applicable, entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 1:00 p.m., New York time (1:00 p.m.,
London time, in the case of Foreign Currency Loans other than Canadian Loans),
on the date due, in same day or immediately available funds, to such account as
the Administrative Agent shall specify from time to time by notice to the
Company and the applicable Borrower. Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next succeeding
Business Day. The Administrative Agent shall promptly remit in same day funds to
each Lender (or, with respect to any LIBO Rate Loan made by any foreign branch
or Affiliate of any Lender, if requested by such Lender, directly to such
foreign branch or Affiliate), Agent or Arranger, as the case may be, its share,
if any, of such payments received by the Administrative Agent for the account of
such Lender, Agent or Arranger, as the case may be. All interest and fees shall
be computed on the basis of the actual number of days (including the first day
but excluding the last day) occurring during the period for which such interest
or fee is payable over a year comprised of 360 days (or, in the case of interest
on (i) a Base Rate Loan or (ii) a LIBO Rate Loan denominated in British Pounds,
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (i) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
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SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligations (other
than pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro
rata share of payments then or therewith obtained by all Lenders entitled
thereto, such Lender shall purchase from the other Lenders such participation in
the Credit Extensions made by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery ratably with
each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of (i) the amount of
such selling Lender's required repayment to the purchasing Lender in respect of
such recovery, to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of the applicable Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section to share in the benefits
of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Event of Default described in clauses (b) through (d) of Section 8.1.9 with
respect to any Obligor (other than immaterial Subsidiaries) or, with the consent
of the Required Lenders, upon the occurrence of any other Event of Default, to
the fullest extent permitted by law, have the right to appropriate and apply to
the payment of the Obligations then due to it from such Borrower, and (as
security for such Obligations) each Borrower hereby grants to each Lender a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of such Borrower then or thereafter maintained with or
otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the applicable Borrower and the Company and the
Administrative Agent after any such setoff and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may have.
SECTION 4.10. Mitigation. Each Lender agrees that if it makes any
demand for payment under Sections 4.3, 4.4, 4.5 or 4.6, or if any adoption or
change of the type described in
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Section 4.1 shall occur with respect to it, it will use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as such efforts would not be disadvantageous to it, as determined in its
sole discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for a Borrower to make payments
under Section 4.3, 4.4, 4.5 or 4.6, or would eliminate or reduce the effect of
any adoption or change described in Section 4.1.
SECTION 4.11. Replacement of Lenders. Each Lender hereby severally
agrees as set forth in this Section. If any Lender (a "Subject Lender") makes
demand upon any Borrower for (or if any Borrower is otherwise required to pay)
amounts pursuant to Section 4.3, 4.5 or 4.6, or gives notice pursuant to Section
4.1 requiring a conversion of such Subject Lender's LIBO Rate Loans to Base Rate
Loans or any other change in the basis upon which interest is to accrue in
respect of such Subject Lender's Fixed Rate Loans or suspending such Lender's
obligation to make Loans as, or to convert Loans into, Fixed Rate Loans, the
Company may, within 90 days of receipt by such Borrower of such demand or notice
(or the occurrence of such other event causing any Borrower to be required to
pay such compensation), as the case may be, give notice (a "Replacement Notice")
in writing to the Agents and such Subject Lender of its intention to replace
such Subject Lender with a financial institution (a "Replacement Lender")
designated in such Replacement Notice. If the Agents shall, in the exercise of
their reasonable discretion and within 30 days of their receipt of such
Replacement Notice, notify the Company and such Subject Lender in writing that
the designated financial institution is satisfactory to the Agents (such consent
not being required where the Replacement Lender is already a Lender), then such
Subject Lender shall, subject to the payment of any amounts due pursuant to
Section 4.4, assign, in accordance with Section 11.11.1, all of its Commitments,
Loans and other rights and obligations under this Agreement and all other Loan
Documents (including, without limitation, Reimbursement Obligations) to such
designated financial institution; provided, however, that (i) such assignment
shall be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Subject Lender and such designated
financial institution and (ii) the purchase price paid by such designated
financial institution shall be in the amount of such Subject Lender's Loans and
its Percentage in respect of any Revolving Loan Commitment under which there are
outstanding Reimbursement Obligations of such Reimbursement Obligation, together
with all accrued and unpaid interest and fees in respect thereof, plus all other
amounts (including the amounts demanded and unreimbursed under Sections 4.3, 4.5
and 4.6), owing to such Subject Lender hereunder. Upon the effective date of an
assignment described above, the assignee financial institution or Replacement
Lender shall become a "Lender" for all purposes under this Agreement and the
other Loan Documents.
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ARTICLE V
CONDITIONS TO EFFECTIVENESS
SECTION 5.1. Effectiveness. The amendment and restatement of the
Existing Credit Agreement shall be effective upon the satisfaction of each of
the conditions precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Agents shall have received from
each Obligor a certificate, dated either the Original Closing Date or the
Closing Date, of any of its Authorized Officers as to (i) resolutions of its
Board of Directors then in full force and effect authorizing the execution,
delivery and performance of each Loan Document to be executed by it, and (ii)
the incumbency and signatures of those of its officers authorized to act with
respect to each Loan Document executed by it, upon which certificate each Agent
and each Lender may conclusively rely until it shall have received a further
certificate of the Secretary or Assistant Secretary of such Obligor canceling or
amending such prior certificate.
SECTION 5.1.2. Closing Date Certificate. Each of the Agents shall have
received, with counterparts or copies for each Lender, the Closing Date
Certificate, dated the Closing Date and duly executed and delivered by the chief
executive financial or accounting (or equivalent) Authorized Officer of the
Company, in which certificate the Company shall agree and acknowledge that the
statements made therein shall be deemed to be true and correct representations
and warranties of the Company made as of such date under this Agreement, and, at
the time such certificate is delivered, such statements shall in fact be true
and correct.
SECTION 5.1.3. Delivery of Notes. The Agents shall have received, for
the account of each Lender that shall have requested a Note not less than two
Business Days prior to the Closing Date, a Note of each applicable Borrower in
respect of each applicable Tranche duly executed and delivered by such Borrower.
SECTION 5.1.4. Affirmation and Consent. The Agents shall have received
executed counterparts of the Affirmation and Consent, duly executed and
delivered by an Authorized Officer of each of the Obligors (other than the
Borrowers).
SECTION 5.1.5. Subsidiary Guaranty Supplement. The Agents shall have
received a supplement to the Subsidiary Guaranty, dated on or prior to the
Closing Date, duly executed and delivered by an Authorized Officer of the U.K.
Term Borrower.
SECTION 5.1.6. Pledge Agreements. The Agents shall have received
executed counterparts of
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(a) a supplement to the Subsidiary Pledge Agreement in form
and substance satisfactory to the Agents, dated on or prior to the
Closing Date, duly executed and delivered by an Authorized Officer of
Formica International, together with the certificates evidencing all of
the issued and outstanding shares of Capital Stock of the U.K. Term
Borrower not previously pledged pursuant to the Subsidiary Pledge
Agreement, which certificates shall in each case be accompanied by
undated stock powers duly executed in blank; and
(b) a pledge agreement in form and substance satisfactory to
the Agents, dated on or prior to the Closing Date, duly executed and
delivered by an Authorized Officer of the U.K. Term Borrower, together
with certificates evidencing 65% of the issued and outstanding shares
of Capital Stock of the U.K. Revolver Borrower, which certificates
shall in each case be accompanied by undated stock powers duly executed
in blank.
SECTION 5.1.7. Opinions of Counsel. The Agents shall have received
opinions, dated the Closing Date and addressed to the Agents and all Lenders
from
(a) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special New York counsel to the
Obligors, in form and substance satisfactory to the Agents;
(b) ▇▇▇▇▇ & ▇▇▇▇▇, Texas counsel to the Obligors, in form and
substance satisfactory to the Agents;
(c) Solomon, Ward, Seidenworm & ▇▇▇▇▇, California counsel to
the Obligors, in form and substance satisfactory to the Agents;
(d) Vorys ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, Ohio counsel to the
Obligors, in form and substance satisfactory to the Agents;
(e) ▇▇▇ & Li, Taiwanese counsel to the Obligors, in form and
substance satisfactory to the Agents;
(f) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Canadian counsel to the Obligors, in form
and substance satisfactory to the Agents;
(g) ▇▇▇▇▇▇▇▇ Chance, French counsel to the Obligors, in form
and substance satisfactory to the Agents;
(h) ▇▇▇▇▇▇▇▇ Chance, Spanish counsel to the Obligors, in form
and substance satisfactory to the Agents; and
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(i) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, U.K. counsel to the Lenders, in form
and substance satisfactory to the Agents.
SECTION 5.1.8. Financial Information. The Agents shall have received a
pro forma consolidated balance sheet of the Company, as at March 31, 1998 (the
"Pro Forma Balance Sheet"), certified by the chief financial or accounting
Authorized Officer of the Company and satisfactory in all respects to the
Arranger and the Syndication Agent.
SECTION 5.1.9. Insurance. The Agents shall have received satisfactory
evidence of the existence of insurance in compliance with Section 7.1.4
(including all endorsements included therein), and the Administrative Agent
shall be named additional insured or loss payee, on behalf of the Lenders,
pursuant to documentation reasonably satisfactory to the Agents.
SECTION 5.1.10. Purchase Price Adjustments. The Agents shall have
received an undertaking satisfactory to the Agents that in the event that
Holdings or any of its Subsidiaries receives any proceeds resulting from a
purchase price adjustment in connection with the Acquisition Transactions, such
proceeds shall be invested in the Company or any of its Subsidiaries that are
Subsidiary Guarantors.
SECTION 5.1.11. Closing Fees, Expenses, etc. The Agents and the
Arranger shall have received, each for its own respective account, or, in the
case of the Administrative Agent, for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable pursuant to Sections 3.3
and 10.3, if then invoiced.
SECTION 5.1.12. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Company, any of its
Subsidiaries or any other Obligors shall be reasonably satisfactory in form and
substance to the Agents and their counsel; the Agents and their counsel shall
have received all information, approvals, opinions, documents or instruments as
the Agents or their counsel may reasonably request.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and,
if applicable, each Issuer, to make any Credit Extension (including its initial
Credit Extension) shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) the representations and warranties set forth in Article VI
and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case
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such representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) in the case of a Committed Revolving Loan or Letter of
Credit issuance, the sum of (i) the aggregate outstanding principal
amount of all Committed Revolving Loans and, if applicable, Swing Line
Loans under the applicable Revolving Loan Commitment plus (ii) the
aggregate amount of all Letter of Credit Outstandings under such
Revolving Loan Commitment does not exceed the then existing Revolving
Loan Commitment Amount in respect of such Revolving Loan Commitment;
(c) the sum of (i) the aggregate outstanding principal amount
of all Revolving Loans (included in the case of Foreign Currency
Revolving Loans at the U.S. Dollar Equivalent thereof) and Swing Line
Loans and (ii) the Letter of Credit Outstandings shall not exceed the
Total Revolving Loan Commitment Amount;
(d) the sum of (i) the aggregate outstanding principal amount
of all Foreign Currency Revolving Loans (included at the U.S. Dollar
Equivalent thereof) and (ii) the Foreign Currency Letter of Credit
Outstandings shall not exceed the Foreign Currency Revolving Loan
Limit; and
(e) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request. The Administrative Agent shall
have received a Borrowing Request if Loans are being requested, or (except in
the case of the deemed issuance hereunder on the Closing Date of Letters of
Credit then outstanding under the Existing Credit Agreement pursuant to Section
2.8.6) an Issuance Request if a Letter of Credit is being requested or extended.
Each of the delivery of a Borrowing Request or Issuance Request and the
acceptance by any Borrower of proceeds of any Credit Extension shall constitute
a representation and warranty by the Company that on the date of such Credit
Extension (both immediately before and after giving effect thereto and the
application of the proceeds thereof) the statements made in Section 5.2.1 are
true and correct.
SECTION 5.3. First Borrowing by Each Foreign Subsidiary. The obligation
of any Lender to make a Loan on the occasion of the first Borrowing by any
Foreign Borrower (other than the U.K. Revolver Borrower, the U.K. Term Borrower,
the Canadian Borrower, the French Revolver Borrower and the Spanish Revolver
Borrower) is subject to the satisfaction of the following further conditions:
(a) receipt by the Administrative Agent for the account of
each Lender with an applicable Foreign Currency Revolving Loan
Commitment that shall have requested a Note not less than two Business
Days prior to the date of such Borrowing of a duly
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executed Note of such Foreign Borrower, dated on or before the date of
such Borrowing, complying with the provisions of Section 2.9;
(b) receipt by the Administrative Agent of an opinion of
counsel for such Foreign Borrower acceptable to the Administrative
Agent, in form and substance satisfactory to the Agents and covering
such additional matters relating to the transactions contemplated
hereby as the Required Lenders may reasonably request; and
(c) receipt by the Administrative Agent of a duly executed
Foreign Currency Revolving Loan Commitment Addendum, Foreign Currency
Term Loan Commitment Addendum or Uncommitted Revolving Borrowing
Addendum, together with all documents which it may reasonably request
relating to the existence of such Foreign Borrower, its corporate
authority for and the validity of its entry into this Agreement and the
other Loan Documents to which it is a party, and any other matters
relevant thereto, all in form and substance satisfactory to the
Administrative Agent.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuers and the Agents to enter
into this Agreement and to make Credit Extensions hereunder, the Company
represents and warrants unto the Agents, each Issuer and each Lender as set
forth in this Article VI.
SECTION 6.1. Organization, etc. The Company and each of its Restricted
Subsidiaries (a) is a corporation validly organized and existing and in good
standing to the extent required under the laws of the jurisdiction of its
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation to the extent required under the laws of each jurisdiction
where the nature of its business requires such qualification, except to the
extent that the failure to qualify would not reasonably be expected to result in
a Material Adverse Effect, and (b) has full power and authority and holds all
requisite governmental licenses, permits and other approvals to (i) enter into
and perform its Obligations under this Agreement and each other Loan Document to
which it is a party and (ii) own and hold under lease its property and to
conduct its business substantially as currently conducted by it except, in the
case of this clause (b)(ii), where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Company of this Agreement and each other Loan
Document executed or to be executed by it, and the execution, delivery and
performance by each other Obligor of each Loan Document executed or to be
executed by it, are within the Company's and each such
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Obligor's corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene the Company's or any such Obligor's Charter
Documents, (ii) other than as set forth in Item 6.2 ("Contractual Restrictions")
of the Disclosure Schedule, contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or affecting the
Company or any such Obligor, where such contravention, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, or
(iii) result in, or require the creation or imposition of, any Lien on any of
the Company's or any other Obligor's properties, except pursuant to the terms of
a Loan Document.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by the Company or any other Obligor of this Agreement or
any other Loan Document to which it is a party, except as have been duly
obtained or made and are in full force and effect or those which the failure to
obtain or make could not reasonably be expected to have a Material Adverse
Effect. None of the Company or any other Obligor, or any of the Company's
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and each other
Loan Document executed by any Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of any Borrower
party thereto enforceable in accordance with their respective terms; and each
Loan Document executed pursuant hereto by each other Obligor will, on the due
execution and delivery thereof by such Obligor, be the legal, valid and binding
obligation of such Obligor enforceable in accordance with its terms, in each
case with respect to this Section 6.4 subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
SECTION 6.5. Financial Information. The Company has delivered to the
Agents and each Lender copies of audited consolidated balance sheets of FMH and
its Subsidiaries as at December 31, 1996 and December 31, 1997 and the related
audited consolidated statements of operations, cash flows and changes in
stockholders' equity for the period from January 27, 1995 through December 31,
1995 and the Fiscal Years ended December 31, 1996 and December 31, 1997
(collectively, the "Base Financial Statements"). The Base Financial Statements
have been prepared in accordance with GAAP consistently applied and present
fairly in all material respects the consolidated financial position of FMH and
its Subsidiaries as of the date thereof and their
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results of operations and cash flows for the periods then ended (except for
footnote 12 thereto in which certain asset amounts were transposed).
SECTION 6.6. No Material Adverse Change. Since December 31, 1997, there
has been no material adverse change in the financial condition, operations,
assets, business, properties or prospects of the Company and its Restricted
Subsidiaries, taken as a whole.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Company, threatened litigation, action, proceeding,
labor controversy, arbitration or governmental investigation affecting any
Obligor, or any of their respective properties, businesses, assets or revenues,
which could reasonably be expected to result in a Material Adverse Effect except
as disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule. No material
adverse development has occurred in any litigation, action, labor controversy,
arbitration or governmental investigation or other proceeding disclosed in Item
6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Company has only those Subsidiaries (i)
which are identified in Item 6.8 ("Existing Subsidiaries") of the Disclosure
Schedule, or (ii) which are permitted to have been acquired in accordance with
Section 7.2.5 or 7.2.8.
SECTION 6.9. Ownership of Properties. Except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, the Company and each of its Restricted Subsidiaries owns good title to,
or leasehold interests in, all of its properties and assets (other than
insignificant properties and assets), real and personal, tangible and
intangible, of any nature whatsoever (including patents, trademarks, trade
names, service marks and copyrights), free and clear of all Liens or material
claims (including material infringement claims with respect to patents,
trademarks, copyrights and the like), except as permitted pursuant to Section
7.2.3.
SECTION 6.10. Taxes. Each of Holdings, FMH, the Company and each of the
Company's Subsidiaries has filed all Federal, State and other material tax
returns required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or charges
which are being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the Original Closing Date, no steps
have been taken to terminate any Pension Plan under section 4041(c) or section
4042 of ERISA, and no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA,
which, singly or in the aggregate, is reasonably expected to lead to a liability
to such Pension Plan in excess of $5,000,000. Except as disclosed in Item 6.11
("Employee Benefit Plans") of
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the Disclosure Schedule, no condition exists or event or transaction has
occurred with respect to any Pension Plan which could reasonably be expected to
result in the incurrence by the Company or any member of the Controlled Group of
any material liability, fine or penalty other than such condition, event or
transaction which would not reasonably be expected to have a Material Adverse
Effect. Except as disclosed in Item 6.11 ("Employee Benefit Plans") of the
Disclosure Schedule or otherwise approved by the Agents (such approval not to be
unreasonably withheld or delayed), since the date of the last financial
statement the Company has not increased any contingent liability with respect to
any post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA,
except as would not have a Material Adverse Effect.
SECTION 6.12. Environmental Warranties. Except as set forth in Item
6.12 ("Environmental Matters") of the Disclosure Schedule or as, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Company or any of its Subsidiaries
are, and continue to be, owned or leased by the Company and its
Subsidiaries in compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or
threatened (i) written claims, complaints, notices or requests for
information received by the Company or any of its Subsidiaries with
respect to any alleged violation of any Environmental Law, or (ii)
written complaints, notices or inquiries to the Company or any of its
Subsidiaries regarding potential liability under any Environmental Law;
(c) there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the Company
or any of its Subsidiaries;
(d) the Company and its Subsidiaries have been issued and are
in compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary
for their businesses;
(e) no property now owned or leased by the Company or any of
its Subsidiaries is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Company or any of its
Subsidiaries;
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(g) the Company and its Subsidiaries have not directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or to the knowledge
of the Company or any of its Subsidiaries, proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list;
(h) there are no polychlorinated biphenyls or friable asbestos
present in a manner or condition at any property now or previously
owned or leased by the Company or any Subsidiary of the Company; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Company or any of its Subsidiaries
which, with the passage of time, or the giving of notice or both, would
give rise to liability to the Company or any of its Subsidiaries under
any Environmental Law.
SECTION 6.13. Regulations U and X. Neither the Company nor FMH or
Holdings is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Credit Extension
will be used in violation of F.R.S. Board Regulation U or X. Terms for which
meanings are provided in F.R.S. Board Regulation U or X or any regulations
substituted therefor, as from time to time in effect, are used in this Section
with such meanings.
SECTION 6.14. Accuracy of Information. All material factual information
concerning the financial condition, operations or prospects of Holdings, FMH,
the Company, and the Company's Subsidiaries heretofore or contemporaneously
furnished by or on behalf of the Company in writing to the Agents, the Arranger,
any Issuer or any Lender for purposes of or in connection with this Agreement or
any transaction contemplated hereby, and all other such factual information
hereafter furnished by or on behalf of the Company, or any of its Subsidiaries
to the Agents, the Arranger, any Issuer or any Lender will be, taken as a whole,
true and accurate in every material respect on the date as of which such
information is dated or certified and such information is not, or shall not be,
taken as a whole, as the case may be, incomplete by omitting to state any fact
necessary to make such information not materially misleading; provided, that
this Section 6.14 shall only relate to information regarding Unrestricted
Subsidiaries to the extent such information was (i) required to be provided
hereunder or pursuant to any other Loan Document, or (ii) requested by the
Agents or the Lenders and was provided by Holdings, FMH, the Company or any of
its Subsidiaries, but shall not apply to any such information on Unrestricted
Subsidiaries which is otherwise received by the Agents or the Lenders or was
inadvertently provided to the Agents or the Lenders.
Any term or provision of this Section to the contrary notwithstanding,
insofar as any of the factual information described above includes assumptions,
estimates, projections or opinions,
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no representation or warranty is made herein with respect thereto; provided,
however, that to the extent any such assumptions, estimates, projections or
opinions are based on factual matters, the Company has reviewed such factual
matters and nothing has come to its attention in the context of such review
which would lead it to believe that such factual matters were not or are not
true and correct in all material respects or that such factual matters omit to
state any material fact necessary to make such assumptions, estimates,
projections or opinions not misleading in any material respect.
SECTION 6.15. Solvency. On the Original Closing Date, after giving
effect to the Transaction, the Company was Solvent.
SECTION 6.16. Year 2000 Compliance. As of the Closing Date, the Company
is reviewing the computer systems of the Company and its Restricted Subsidiaries
and is conducting an evaluation of the costs of upgrading such systems in
preparation for the year 2000. The Company has concluded that the costs of such
upgrading could not reasonably be expected to result in a Material Adverse
Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Company agrees with the Agents,
each Issuer and each Lender that, until all Commitments have terminated and all
Obligations have been paid and performed in full, the Company will perform the
obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Company will furnish, or will cause to be furnished, to each Lender and each
Agent copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 55 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of the Company (or, if the Company is required to file such information
on a Form 10-Q with the Securities and Exchange Commission, promptly
following such filing), a consolidated balance sheet of the Company and
its Subsidiaries as of the end of such Fiscal Quarter, together with
the related consolidated statement of operations for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter and the related
consolidated statements of cash flows for such period (it being
understood that the foregoing requirement may be satisfied by delivery
of the Company's report to the Securities and Exchange Commission on
Form 10-Q, if any), certified by the
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president, chief executive officer, treasurer, assistant treasurer,
controller or chief financial Authorized Officer of the Company;
(b) as soon as available and in any event within 100 days
after the end of each Fiscal Year of the Company (or, if the Company is
required to file such information on a Form 10-K with the Securities
and Exchange Commission, promptly following such filing), a copy of the
annual audit report for such Fiscal Year for the Company and its
Subsidiaries, including therein a consolidated balance sheet for the
Company and its Subsidiaries as of the end of such Fiscal Year,
together with the related consolidated statements of operations and
cash flows for such Fiscal Year (it being understood that the foregoing
requirement may be satisfied by delivery of the Company's report to the
Securities and Exchange Commission on Form 10-K, if any), in each case
certified (without any Impermissible Qualification) by a "Big Six" firm
of independent public accountants, together with a certificate from
such accountants as to whether, in making the examination necessary for
the signing of such annual report by such accountants, they have become
aware of any Default that has occurred and is continuing and, if in the
opinion of such accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof;
(c) together with the delivery of the financial information
required pursuant to clauses (a) and (b), a Compliance Certificate,
executed by the president, chief executive officer, treasurer,
assistant treasurer, controller or chief financial Authorized Officer
of the Company, showing (in reasonable detail and with appropriate
calculations and computations in all respects satisfactory to the
Agents) compliance with the financial covenants set forth in Section
7.2.4;
(d) as soon as possible and in any event within five Business
Days after obtaining knowledge of the occurrence of any Default, if
such Default is then continuing, a statement of the president, chief
executive officer, treasurer, assistant treasurer, controller or chief
financial Authorized Officer of the Company setting forth details of
such Default and the action which the Company has taken or proposes to
take with respect thereto;
(e) as soon as possible and in any event within ten Business
Days after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding or labor controversy
described in Section 6.7 or (y) the commencement of any labor
controversy, litigation, action or proceeding of the type described in
Section 6.7, notice thereof and of the action which the Company has
taken or proposes to take with respect thereto;
(f) promptly after the sending or filing thereof, copies of
all reports and registration statements (other than exhibits thereto
and any registration statement on
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Form S-8 or its equivalent) which the Company or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(g) as soon as practicable after the chief financial officer
or the chief executive officer of the Company or a member of the
Company's Controlled Group becomes aware of (i) formal steps in writing
to terminate any Pension Plan or (ii) the occurrence of any event with
respect to a Pension Plan which, in the case of (i) or (ii), could
reasonably be expected to result in a contribution to such Pension Plan
by (or a liability to) the Company or a member of the Company's
Controlled Group in excess of $10,000,000, (iii) the failure to make a
required contribution to any Pension Plan if such failure is sufficient
to give rise to a Lien under section 302(f) of ERISA in an amount in
excess of $10,000,000, (iv) the taking of any action with respect to a
Pension Plan which could reasonably be expected to result in the
requirement that the Company furnish a bond to the PBGC or such Pension
Plan in an amount in excess of $10,000,000 or (v) any material increase
in the contingent liability of the Company with respect to any
post-retirement Welfare Plan benefit, notice thereof and copies of all
documentation relating thereto;
(h) within 20 days after the end of each calendar month, a
certificate, in substantially the form of Exhibit E-2, executed by the
president, chief executive officer, treasurer, controller or chief
financial Authorized Officer of the Company showing the U.S. Dollar
Equivalent of the aggregate outstanding principal amount of all Foreign
Currency Revolving Loans, as of the end of such month, for (i) all
Foreign Borrowers, taken as a whole, and (ii) each Foreign Borrower,
individually; and
(i) such other information respecting the condition or
operations, financial or otherwise, of the Company or any of its
Restricted Subsidiaries as any Lender through the Administrative Agent
may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. The Company will, and will
cause each of its Restricted Subsidiaries to, comply in all material respects
with all applicable laws, rules, regulations and orders, such compliance to
include (without limitation) (i) except as permitted under Section 7.2.8, the
maintenance and preservation of its corporate existence and qualification as a
foreign corporation, except where the failure to so qualify could not reasonably
be expected to have a Material Adverse Effect, and (ii) the payment, before the
same become delinquent, of all material taxes, assessments and governmental
charges imposed upon it or upon its property, except to the extent being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. Except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, the Company will, and will
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cause each of its Restricted Subsidiaries to, maintain, preserve, protect and
keep its properties (other than insignificant properties) in good repair,
working order and condition (ordinary wear and tear excepted), and make
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times unless
the Company determines in good faith that the continued maintenance of any of
its properties is no longer economically desirable.
SECTION 7.1.4. Insurance. The Company will, and will cause each of its
Restricted Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses and with such provisions and
endorsements as the Agents may reasonably request and will, upon request of the
Agents, furnish to the Agents and each Lender a certificate of an Authorized
Officer of the Company setting forth the nature and extent of all insurance
maintained by the Company and its Restricted Subsidiaries in accordance with
this Section.
SECTION 7.1.5. Books and Records. The Company will, and will cause each
of its Restricted Subsidiaries to, keep books and records which accurately
reflect in all material respects all of its business affairs and transactions
and permit the Agents, each Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
but, unless an Event of Default shall have occurred and be continuing, not more
frequently than once in each Fiscal Year, to visit its corporate offices, to
discuss its financial matters with its officers and, only in the presence of a
representative of the Company (whose attendance at such discussion cannot be
unreasonably refused), its independent public accountants (and the Company
hereby authorizes such independent public accountants to discuss the Company's
financial matters with each Issuer and each Lender or its representatives, so
long as a representative of the Company is present) and to examine any of its
books or other financial records. The cost and expense of each such visit shall
be borne by the applicable Agent or Lender.
SECTION 7.1.6. Environmental Covenant. The Company will and will cause
each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply
with the terms of this clause could not reasonably be expected to have
a Material Adverse Effect;
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(b) promptly notify the Agents and provide copies of all
written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with
Environmental Laws which would have, or would reasonably be expected to
have, a Material Adverse Effect, and promptly cure and have dismissed
with prejudice any material actions and proceedings relating to
compliance with Environmental Laws, except to the extent being
diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP have been set aside on
its books; and
(c) provide such information and certifications which the
Agents may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. The Company hereby covenants and
agrees as follows:
(a) Upon any Person becoming, after the Closing Date, a
Subsidiary of the Company or (in the case of clause (a)(ii) below only)
upon the Company or any Subsidiary of the Company acquiring additional
Capital Stock of any existing Subsidiary other than an Unrestricted
Subsidiary, the Company shall notify the Agents thereof and:
(i) the Company shall promptly cause any such
Subsidiary that is a U.S. Subsidiary (unless such U.S.
Subsidiary is an Unrestricted Subsidiary or the Trademark
Subsidiary) to execute and deliver to the Administrative
Agent, with counterparts for each Lender, the Subsidiary
Security Agreement (or a supplement thereto) (and, if such
Subsidiary owns any real property, to the extent required by
clause (b) of Section 7.1.8, a Mortgage), together with
Uniform Commercial Code financing statements (Form UCC-1)
executed and delivered by such U.S. Subsidiary naming such
U.S. Subsidiary as the debtor and the Administrative Agent as
the secured party, or other similar instruments or documents,
in appropriate form for filing under the Uniform Commercial
Code and any other applicable recording statutes, in the case
of real property, of all jurisdictions as may be necessary or,
in the opinion of the Administrative Agent, desirable to
perfect the security interest of the Administrative Agent
pursuant to the Subsidiary Security Agreement or a Mortgage,
as the case may be (other than the perfection of security
interests in motor vehicles); and
(ii) the Company shall promptly deliver, or cause to
be delivered, to the Administrative Agent under a Pledge
Agreement (or a supplement thereto) certificates (if any)
representing all of the issued and outstanding shares of
Capital Stock of such Subsidiary (other than any Unrestricted
Subsidiary) owned by the Company or any Subsidiary of the
Company that is a U.S. Subsidiary or a
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Subsidiary Guarantor (other than any Unrestricted Subsidiary),
as the case may be, along with undated stock powers for such
certificates, executed in blank, or, if any securities subject
thereto are uncertificated securities, the Administrative
Agent shall have obtained "control" (as defined in the Uniform
Commercial Code applicable to the perfection of such
securities) over such securities, or other appropriate steps
shall have been taken under applicable law resulting in the
perfection of the security interest granted in such securities
in favor of the Administrative Agent pursuant to the terms of
such Pledge Agreement;
together, in each case, with such opinions, in form and substance and
from counsel satisfactory to the Agents, as the Agents may reasonably
require; provided, however, that notwithstanding the foregoing, no
Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage
or a Subsidiary Security Agreement (or a supplement thereto), nor will
the Company or any Subsidiary of the Company be required to deliver in
pledge pursuant to a Pledge Agreement in excess of 65% of the total
combined voting power of all classes of Capital Stock of a Non-U.S.
Subsidiary entitled to vote.
(b) Upon any Person (other than the Trademark Subsidiary or
any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S.
Subsidiary of the Company, the Company shall notify the Agents of such
event, and the Company shall promptly cause such Subsidiary to execute
and deliver to the Administrative Agent, with counterparts for each
Lender, a Subsidiary Guaranty, together with such opinions, in form and
substance and from counsel satisfactory to the Agents, as the Agents
may reasonably require.
(c) If the election is made to treat any Restricted Subsidiary
that is a Non-U.S. Subsidiary, whether existing on the date of this
Agreement or acquired or created hereafter, as a partnership or a
branch of the Company for United States federal income tax purposes,
within 60 days after the election is made, the Company shall notify the
Agents of such event, and the Company shall promptly cause such
Restricted Subsidiary to execute and deliver to the Administrative
Agent, with counterparts for each Lender, a Subsidiary Guaranty,
together with such opinions, in form and substance and from counsel
satisfactory to the Agents, as the Agents may reasonably require.
Notwithstanding the foregoing, if any such Restricted Subsidiary shall
cease to be treated as a partnership or branch of the Company, then, as
of the date of such status termination, such Restricted Subsidiary's
status as a Subsidiary Guarantor hereunder shall also cease.
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SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property.
(a) Prior to entering into any new lease of real property or
renewing any existing lease of real property following the Closing
Date, the Company shall, and shall cause each of its U.S. Subsidiaries
(other than the Trademark Subsidiary or any Unrestricted Subsidiary)
to, use its (and their) commercially reasonable efforts (which shall
not require the expenditure of cash or the making of any material
concessions under the relevant lease) to deliver to the Administrative
Agent a Waiver executed by the lessor of any real property that is to
be leased by the Company or such U.S. Subsidiary for a term in excess
of one year in any state which by statute grants such lessor a
"landlord's" (or similar) Lien which is superior to the Administrative
Agent's, to the extent the value of any personal property of the
Company or its U.S. Subsidiaries (other than the Trademark Subsidiary
or any Unrestricted Subsidiary) to be held at such leased property
exceeds (or it is anticipated that the value of such personal property
will, at any point in time during the term of such leasehold, exceed)
$5,000,000.
(b) In the event that the Company or any of its U.S.
Subsidiaries (other than any Unrestricted Subsidiary) shall acquire any
real property having a value as determined in good faith by the
Administrative Agent in excess of $3,000,000, the Company or the
applicable U.S. Subsidiary shall, promptly after such acquisition,
execute a Mortgage and provide the Administrative Agent with (i)
evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of such Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable effectively to create a valid, perfected, first priority
Lien, subject to the Liens permitted by Section 7.2.3, against the
properties purported to be covered thereby, (ii) mortgagee's title
insurance policies in favor of the Agents and the Lenders in amounts
and in form and substance and issued by insurers, reasonably
satisfactory to the Agents, with respect to the property purported to
be covered by such Mortgage, insuring that title to such property is
indefeasible and that the interests created by the Mortgage constitute
valid first Liens thereon free and clear of all defects and
encumbrances other than as approved by the Agents, and such policies
shall also include, to the extent available, a revolving credit
endorsement and such other endorsements as the Agents shall reasonably
request and shall be accompanied by evidence of the payment in full of
all premiums thereon, and (iii) such other approvals, opinions, or
documents as the Agents may reasonably request.
(c) In accordance with the terms and provisions of the Loan
Documents, the Company and each of its U.S. Subsidiaries (other than
any Unrestricted Subsidiary) shall provide the Agents with evidence of
all recordings and filings as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable to create a valid,
perfected, first priority Lien, subject to the Liens permitted by
Section 7.2.3, against all property
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acquired after the Closing Date (excluding motor vehicles and (except
to the extent required under clause (b) of this Section 7.1.8) leases
of and fee interests in real property).
SECTION 7.1.9. Use of Proceeds, etc. The Borrowers shall
(a) apply the proceeds of the Loans
(i) in the case of U.S. Term Loans, U.K. Term Loans,
Canadian Term Loans and certain of the Revolving Loans, to
refinance (either directly or indirectly through intervening
dividends) certain loans outstanding under the Existing
Credit Facility;
(ii) in the case of certain of the Revolving Loans
and Swing Line Loans, for working capital and general
corporate purposes of the Company and its Subsidiaries; and
(iii) in the case of Spanish Term Loans, if any, to
refinance certain other Term Loans then outstanding under this
Agreement; and
(b) use Letters of Credit only for purposes of supporting
working capital and general corporate purposes of the Company and its
Subsidiaries.
SECTION 7.1.10. Hedging Obligations. Within six months following the
Closing Date, the Administrative Agent shall have received evidence satisfactory
to it that the Borrowers have entered into Rate Protection Agreements which
shall protect the Borrowers against fluctuations in interest rates with respect
to at least 50% of the aggregate principal amount of the Term Loans and the
Senior Subordinated Debt for a period of at least three years from the Closing
Date, with terms reasonably satisfactory to the Company and the Agents.
SECTION 7.1.11. Mortgages. Within 60 days after the Closing Date, the
Company shall deliver to the Agents counterparts of a Mortgage relating to each
property listed on Item 7.1.11 ("Mortgaged Properties") of the Disclosure
Schedule, each dated as of the date of such delivery, duly executed by the
Company or the applicable U.S. Subsidiary, together with
(a) evidence of the completion (or satisfactory arrangements
for the completion) of all recordings and filings of such Mortgage as
may be necessary or, in the reasonable opinion of the Administrative
Agent, desirable effectively to create a valid, perfected, first
priority Lien, subject to the Liens permitted by Section 7.2.3, against
the properties purported to be covered thereby;
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(b) mortgagee's title insurance policies in favor of the
Agents and the Lenders in amounts and in form and substance and issued
by insurers, reasonably satisfactory to the Agents, with respect to the
property purported to be covered by such Mortgage, insuring that title
to such property is indefeasible and that the interests created by the
Mortgage constitute valid first Liens thereon free and clear of all
defects and encumbrances other than as approved by the Agents, and such
policies shall also include, to the extent available, a revolving
credit endorsement and such other endorsements as the Agents shall
request and shall be accompanied by evidence of the payment in full of
all premiums thereon; and
(c) such other approvals, opinions, or documents as the Agents
may reasonably request.
SECTION 7.1.12. Certain Indebtedness. The Company shall cause to be in
effect Letters of Credit or availability under the Foreign Currency Revolving
Loan Commitment in an aggregate principal amount equal to the outstanding
principal amount of all outstanding Indebtedness set forth in Item 6.2
("Contractual Restrictions") of the Disclosure Schedule as to which any default
or event of default exists on the Closing Date. If any such default or event of
default with respect to any such outstanding Indebtedness is not cured or waived
on or prior to the date occurring 60 days after the Closing Date, the Company
shall pay or cause to be paid, in full, the principal amount of such
Indebtedness outstanding on such 60th day.
SECTION 7.2. Negative Covenants. The Company agrees with the Agents and
each Lender that, from and after the Closing Date, until all Commitments have
terminated, and all Obligations have been paid and performed in full, the
Company will perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Company will not, and will not
permit any of its Restricted Subsidiaries to, engage in any business activity,
except business activities in the building products industry and any business
reasonably ancillary or related thereto (the "Formica Business"); provided,
however, that, any term or provision hereof (including this Section 7.2) to the
contrary notwithstanding, the Trademark Subsidiary shall conduct no business
activity other than that directly connected with the ownership or licensing of
trademarks, trade names, trade secrets, trade dress, service marks, patents,
copyrights, mask works and other intellectual property associated with the
Formica Business and the licensing of such trademarks, trade names, trade
secrets, trade dress, service marks, patents, copyrights, mask works and other
intellectual property associated with the Formica Business to Holdings and its
Restricted Subsidiaries and the lending of the proceeds thereof to the Company
and its Restricted Subsidiaries.
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SECTION 7.2.2. Indebtedness. The Company will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist
or otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness outstanding on the Original Closing Date and
identified in Item 7.2.2(a) ("Ongoing Indebtedness") of the Disclosure
Schedule, and refinancings and replacements thereof in a principal
amount not exceeding the principal amount of the Indebtedness so
refinanced or replaced and with an average life to maturity of not less
than the then average life to maturity of the Indebtedness so
refinanced or replaced;
(b) Indebtedness in respect of the Credit Extensions and other
Obligations;
(c) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries that is represented by Capitalized Lease
Liabilities, mortgage financings or purchase money obligations (but
only to the extent otherwise permitted by Section 7.2.7); provided,
that the maximum aggregate amount of all Indebtedness permitted under
this clause (c) shall not at any time exceed $20,000,000;
(d) Hedging Obligations of the Company or any of its
Restricted Subsidiaries in respect of the Credit Extensions;
(e) intercompany Indebtedness of (x) any Restricted Subsidiary
of the Company owing to the Company or any of its other Restricted
Subsidiaries or (y) the Company to any of its Restricted Subsidiaries,
which Indebtedness (i) shall be evidenced by one or more promissory
notes in form and substance satisfactory to the Agents which (except in
the case of any such notes held by a non-U.S. Subsidiary or the
Trademark Subsidiary) have been duly executed and delivered to (and
indorsed to the order of) the Administrative Agent in pledge pursuant
to a Pledge Agreement, and (ii) shall not be forgiven or otherwise
discharged for any consideration other than payment (dollar for dollar
or, if denominated in a Foreign Currency, the applicable Currency) in
cash unless the Agents otherwise consent; provided, that intercompany
Indebtedness incurred pursuant to this clause (e) which is owed by a
Non-U.S. Subsidiary of the Company that is not a Subsidiary Guarantor
(other than any such intercompany Indebtedness incurred to finance any
acquisition permitted hereunder) to the Company or a U.S. Subsidiary or
other Subsidiary Guarantor shall not exceed, at any time outstanding,
an aggregate principal amount equal to (x) $25,000,000 plus (y) the
principal amount of any Indebtedness permitted pursuant to clause (a)
of this Section 7.2.2 which is refinanced or replaced (in accordance
with such clause (a)) with intercompany Indebtedness pursuant to this
clause (e) plus (z) the amount of such Indebtedness constituting an
Investment permitted under clause (f) of Section 7.2.5.
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(f) Senior Subordinated Debt and guarantees thereof in an
aggregate outstanding principal amount not to exceed $215,000,000;
(g) Assumed Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $25,000,000
at any time outstanding incurred as a result of an Investment permitted
pursuant to clause (k) of Section 7.2.5;
(h) Indebtedness of Non-U.S. Subsidiaries of the Company which
are Restricted Subsidiaries but not Subsidiary Guarantors owing to a
Person other than the Company or any of its Subsidiaries (other than
Unrestricted Subsidiaries) in an aggregate principal amount not to
exceed (except if such excess is caused by changes in exchange rates
and is eliminated within five Business Days) $10,000,000 at any time
outstanding;
(i) other unsecured Indebtedness of the Company and its U.S.
Subsidiaries and other Subsidiary Guarantors which are, in either case,
Restricted Subsidiaries in an aggregate amount at any time outstanding
not to exceed $25,000,000 plus the difference between the maximum
amount of additional Revolving Loan Commitments that have been or could
be provided under clause (h) of Section 2.1.2 and the then outstanding
principal amount of additional Revolving Loans made pursuant to clause
(h) of Section 2.1.2; and
(j) Indebtedness of a Spanish Subsidiary of the Company in an
aggregate principal amount the U.S. Dollar Equivalent of which
(determined as of the date such Indebtedness was incurred) does not
exceed $10,000,000 and the net proceeds of which are applied to prepay
Term Loans;
provided, however, that (i) no Indebtedness otherwise permitted hereunder (other
than Indebtedness permitted under clause (c)) may be incurred by the Trademark
Subsidiary and (ii) no Indebtedness otherwise permitted by clause (c), (e), (g),
(h) or (i) may be incurred if, after giving effect to the incurrence thereof,
any Default shall have occurred and be continuing.
SECTION 7.2.3. Liens. The Company will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
(a) Liens existing on the Original Closing Date and identified
in Item 7.2.2(b) ("Ongoing Liens") of the Disclosure Schedule and
extensions and renewals thereof; provided that no such extension or
renewal shall increase the obligations secured by such Lien, extend
such Lien to additional assets or otherwise result in a Default
hereunder;
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(b) Liens securing payment of the Obligations or any
obligation under any Rate Protection Agreement granted pursuant to any
Loan Document;
(c) Liens granted to secure payment of Indebtedness of the
type permitted and described in clause (c) of Section 7.2.2;
(d) Liens for taxes, assessments or other governmental charges
or levies, including Liens pursuant to Section 107(l) of CERCLA or
other similar law, not at the time delinquent or thereafter payable
without penalty or being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(e) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen, contractors, laborers and landlords or other like Liens
incurred in the ordinary course of business for sums not overdue for a
period of more than 30 days or being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;
(f) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance
of tenders, bids, statutory or regulatory obligations, insurance
obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(g) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full by a bond or (subject to a
customary deductible) by insurance maintained with responsible
insurance companies;
(h) Liens with respect to minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and fixtures
which do not materially detract from the value or materially impair the
use by the Company or any such Restricted Subsidiary in the ordinary
course of their business of the property subject thereto;
(i) licenses, leases or subleases granted by the Company or
any of its Restricted Subsidiaries to any other Person in the ordinary
course of business;
(j) Liens in the nature of trustees' Liens granted pursuant to
any indenture governing any Indebtedness permitted by Section 7.2.2, in
each case in favor of the
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trustee under such indenture and securing only obligations to pay
compensation to such trustee, to reimburse its expenses and to
indemnify it under the terms thereof;
(k) Liens of sellers of goods to the Company and its
Restricted Subsidiaries arising under Article 2 of the UCC or similar
provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase
price for such goods and related expenses;
(l) Liens securing Assumed Indebtedness of the Company and its
Subsidiaries permitted pursuant to clause (g) of Section 7.2.2;
provided, however, that such Liens shall only be permitted if (i) such
Indebtedness constitutes Non-Recourse Debt and (ii) the Assumed
Indebtedness and other secured Indebtedness of the Company and its
Subsidiaries secured by any such Lien shall not exceed 100% of the fair
market value of the assets being acquired in connection with such
Assumed Indebtedness;
(m) Liens on assets of Restricted Subsidiaries of the Company
securing Indebtedness permitted pursuant to clause (h) or (j) of
Section 7.2.2;
(n) Liens on the Capital Stock of Unrestricted Subsidiaries;
provided, however, that no Liens (other than Liens permitted pursuant to clauses
(a), (b), (d) and (g)) may be created, incurred, assumed or otherwise permitted
to exist upon any property, revenues or assets of the Trademark Subsidiary.
SECTION 7.2.4. Financial Covenants.
(a) EBITDA. The Company will not permit EBITDA for the period
of four consecutive Fiscal Quarters ending on the last day of any
Fiscal Quarter occurring after the Closing Date and during any period
set forth below to be less than the amount set forth opposite such
period:
Period EBITDA
------ ------
07/01/98 to 09/30/98 $40,000,000
10/01/98 to 12/31/98 $42,500,000
01/01/99 to 03/31/99 $45,000,000
04/01/99 to 06/30/99 $47,500,000
07/01/99 to 09/30/99 $50,000,000
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10/01/99 to 03/31/00 $55,000,000
04/01/00 to 09/30/00 $60,000,000
10/01/00 to 03/31/01 $65,000,000
04/01/01 to 09/30/01 $70,000,000
10/01/01 to 03/31/02 $75,000,000
04/01/02 to 09/30/02 $80,000,000
10/01/02 to 06/30/03 $85,000,000
07/01/03 and thereafter $90,000,000
(b) Leverage Ratio. The Company will not permit the Leverage
Ratio as of the end of any Fiscal Quarter occurring after the Closing
Date and during any period set forth below to be greater than the ratio
set forth opposite such period:
Period EBITDA
------ ------
04/01/99 to 06/30/99 6.75:1
07/01/99 to 09/30/99 6.50:1
10/01/99 to 03/31/00 6.00:1
04/01/00 to 09/30/00 5.50:1
10/01/00 to 03/31/01 5.25:1
04/01/01 to 06/30/01 5.00:1
07/01/01 to 09/30/01 4.75:1
10/01/01 to 03/31/02 4.5:1
04/01/02 to 09/30/02 4.25:1
10/01/02 to 03/31/03 4.00:1
04/01/03 to 09/30/03 3.75:1
10/01/03 and thereafter 3.5:1
(c) Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter ending
after the Closing Date
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and occurring during any period set forth below to be less than the
ratio set forth opposite such period:
Interest Coverage
Period Ratio
------ -----
07/01/98 to 12/31/98 1.20:1
01/01/99 to 06/30/99 1.30:1
07/01/99 to 09/30/99 1.50:1
10/01/99 to 03/31/00 1.75:1
04/01/00 to 03/31/01 2.00:1
04/01/01 to 09/30/01 2.25:1
10/01/01 to 03/31/02 2.50:1
04/01/02 to 09/30/02 2.75:1
10/01/02 to 06/30/03 3.00:1
07/01/03 and thereafter 3.50:1
(d) Fixed Charge Coverage Ratio. The Company will not permit
the Fixed Charge Coverage Ratio as of the end of any Fiscal Quarter
ending after the Closing Date and occurring during any period set forth
below to be less than the ratio set forth opposite such period:
Fixed Charge
Period Coverage Ratio
------ --------------
10/01/99 to 03/31/01 1.10:1
04/01/01 and thereafter 1.20:1
SECTION 7.2.5. Investments. The Company will not, and will not permit
any of its Restricted Subsidiaries to, make, incur, assume or suffer to exist
any Investment in any other Person, except:
(a) Investments existing on the Original Closing Date and
identified in Item 7.2.5(a) ("Ongoing Investments") of the Disclosure
Schedule and, with respect to any such Investments constituting
Indebtedness, extensions and renewals thereof, provided
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that no such extension or renewal shall increase the amount of such
Investment at the time of such extension or renewal;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7;
(e) Investments by the Company in any of its Restricted
Subsidiaries, or by any such Restricted Subsidiary in any other
Restricted Subsidiary or the Company, by way of contributions to
capital, so long as, after giving effect to such Investment, the
Company and its Restricted Subsidiaries have maintained or increased
their equity ownership in the Restricted Subsidiary in which such
Investment was made; provided that Investments made pursuant to this
clause (e) in any Non-U.S. Subsidiaries of the Company that are not
Subsidiary Guarantors (exclusive of (i) any Investment permitted as
intercompany Indebtedness pursuant to clause (y) of the proviso to
clause (e) of Section 7.2.2 or (ii) any Investment made to finance any
acquisition permitted hereunder) shall not exceed $10,000,000 in the
aggregate;
(f) additional Investments by the Company or any of its
Restricted Subsidiaries made with the proceeds of cash capital
contributions by FMH to the Company, cash proceeds from sales of
Capital Stock by the Company to FMH or repayments in cash of the
Company Intercompany Loan by FMH to the Company, in each case after the
Original Closing Date for the purpose of making an Investment
identified in a written notice to the Agents on or prior to the date
that such contribution, sale or repayment is made (provided that in no
event shall such Investments be made with any portion of Net Equity
Proceeds required to be applied as a mandatory prepayment pursuant to
clause (d) of Section 3.1.1);
(g) Investments to the extent the consideration received
pursuant to clause (c)(i) of Section 7.2.9 is not all cash;
(h) Investments in the form of loans to officers, directors
and employees of the Company and its Restricted Subsidiaries for the
sole purpose of purchasing Holdings common stock (or purchases of such
loans made by others) in an aggregate amount at any time outstanding
not to exceed $5,000,000;
(i) the Company Intercompany Loan;
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(j) Investments in Unrestricted Subsidiaries of the Company
in an aggregate amount at any time outstanding not to exceed
$10,000,000; or
(k) other Investments (including Assumed Indebtedness) made by
the Company or any of its Restricted Subsidiaries in an aggregate
amount not to exceed (x) $25,000,000 in any single transaction or
series of related transactions or (y) $75,000,000 in the aggregate over
the term of this Agreement, which Investments shall result in the
Company or such Restricted Subsidiary acquiring (subject to Section
7.2.1) a majority controlling interest in the Person in which such
Investment was made or increasing any such controlling interest
maintained by it in such Person; provided that, (i) at all times when
the Leverage Ratio exceeds 6.00:1 (as set forth in the most recent
Compliance Certificate), the amount set forth in clause (x) above shall
be reduced to $10,000,000, and (ii) for purposes of determining
compliance with this clause (k), the aggregate amount of any Assumed
Indebtedness incurred pursuant to clause (g) of Section 7.2.2 by the
Company or any Restricted Subsidiary shall be included, dollar for
dollar, in computing the amount of any Investment made or to be made
pursuant to this clause (k);
(l) Investments in an aggregate amount not to exceed
$17,500,000 in connection with the Fountainhead Acquisition;
(m) extensions of trade credit in the ordinary course of
business;
(n) Investments in Hedging Obligations permitted hereunder;
and
(o) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of
and other disputes with customers and suppliers arising in the ordinary
course of business;
provided, however, that
(p) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment"
may continue to be held, notwithstanding that such Investment if made
thereafter would not comply with such requirements; and
(q) no Investment otherwise permitted by clause (c) (except to
the extent permitted under Section 7.2.2), (e), (f), (h), (j) or (k) of
this Section 7.2.5 shall be permitted to be made if, immediately before
or after giving effect thereto, any Default shall have occurred and be
continuing.
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SECTION 7.2.6. Restricted Payments, etc. On and at all times after
the date hereof:
(a) the Company will not, and will not permit any of its
Restricted Subsidiaries to, declare, pay or make any payment, dividend,
distribution or exchange (in cash, property or obligations) on or in
respect of any shares of any class of Capital Stock of the Company (now
or hereafter outstanding) or on any warrants, options or other rights
with respect to any shares of any class of Capital Stock of the Company
(now or hereafter outstanding) (other than (i) dividends or
distributions payable in its common stock or warrants to purchase its
common stock and (ii) splits or reclassifications of its stock into
additional or other shares of its common stock) or apply, or permit any
of its Restricted Subsidiaries to apply, any of its funds, property or
assets to the purchase, redemption, exchange, sinking fund or other
retirement of, or agree or permit any of its Restricted Subsidiaries to
purchase, redeem or exchange, any shares of any class of Capital Stock
of the Company (now or hereafter outstanding), or any warrants, options
or other rights with respect to any shares of any class of Capital
Stock of the Company (now or hereafter outstanding);
(b) other than pursuant to a Permitted Refinancing thereof,
the Company will not, and will not permit any of its Restricted
Subsidiaries to, (i) directly or indirectly make any payment or
prepayment of principal of, or make any payment of interest on, any
Senior Subordinated Debt on any day other than the stated, scheduled
date for such payment or prepayment set forth in the Senior
Subordinated Debt Documents (it being understood and agreed that for
purposes of this clause (b) the only stated, scheduled date for payment
of principal of the Senior Subordinated Bridge Notes shall be the
seventh anniversary of the date that the Senior Subordinated Bridge
Notes were issued), or which would violate the subordination provisions
of such Senior Subordinated Debt, or (ii) redeem, purchase or defease
any Senior Subordinated Debt (the foregoing prohibited acts referred to
in clauses (a) and (b) above are herein collectively referred to as
"Restricted Payments");
provided, however, that
(c) notwithstanding the provisions of clause (a) above, the
Company shall be permitted to make Restricted Payments to FMH to the
extent necessary to enable FMH and/or Holdings to:
(i) pay its overhead expenses in an amount not to
exceed $2,000,000 in the aggregate in any Fiscal Year
(exclusive of advisory fees in an amount not to exceed
$250,000 in the aggregate in any Fiscal Year);
(ii) pay taxes; and
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(iii) so long as (A) no Default shall have occurred
and be continuing on the date such Restricted Payment is
declared or to be made, nor would a Default result from the
making of such Restricted Payment, (B) after giving effect to
the making of such Restricted Payment, the Company shall be in
pro forma compliance with the covenant set forth in Section
7.2.4(b) for the most recent full Fiscal Quarter immediately
preceding the date of the making of such Restricted Payment
for which the relevant financial information has been
delivered pursuant to clause (a) or clause (b) of Section
7.1.1, and (C) an Authorized Officer of the Company shall have
delivered a certificate to the Administrative Agent in form
and substance satisfactory to the Administrative Agent
(including a calculation of the Company's pro forma compliance
with the covenant set forth in Section 7.2.4(b) in reasonable
detail) certifying as to the accuracy of clauses (c)(iii)(A)
and (c)(iii)(B) above, repurchase, redeem or otherwise acquire
or retire for value any Capital Stock of Holdings, or any
warrant, option or other right to acquire Capital Stock of
Holdings, held by any member of management of the Company or
any of its Subsidiaries (including Management Investors)
pursuant to any management equity subscription agreement or
stock option agreement; provided that the aggregate price paid
for all such repurchased, redeemed, acquired or retired
Capital Stock, warrants, options and other rights shall not
exceed (I) $7,500,000 over the life of this Agreement plus
(II) the aggregate cash proceeds received by the Company after
the Original Closing Date (net of any such proceeds
constituting Net Equity Proceeds required to be applied
pursuant to Section 3.1.1) from any issuance of Capital Stock
of Holdings, and warrants, options and other rights to acquire
Capital Stock of Holdings, by Holdings or the Company to
members of management of the Company and its Restricted
Subsidiaries;
(d) notwithstanding the provisions of clauses (a) and (b)
above, the Company and its Subsidiaries shall be permitted to make the
Restricted Payments included in the Transaction; and
(e) notwithstanding the provisions of clauses (a) and (b)
above, the Company may pay a non-cash dividend to FMH consisting solely
of a transfer of all or a portion of the Company Intercompany Loan.
SECTION 7.2.7. Capital Expenditures, etc. With respect to Capital
Expenditures, the parties covenant and agree as follows:
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make or commit to make Capital Expenditures
in any Fiscal Year, except Capital
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Expenditures of the Company and its Restricted Subsidiaries which do
not aggregate in excess of (x) the amount set forth below opposite such
Fiscal Year:
Maximum Capital
Fiscal Year Expenditures
-------------------- ---------------
1998 $50,000,000
1999 $30,000,000
2000 and thereafter $20,000,000;
plus (y) an additional aggregate amount equal to $25,000,000 over the
term of this Agreement; provided, however, that, to the extent the
amount of Capital Expenditures permitted to be made in any Fiscal Year
pursuant to clause (x) of this Section exceeds the aggregate amount of
Capital Expenditures actually made during such Fiscal Year, such excess
amount (up to an aggregate of 50% of the amount of Capital Expenditures
permitted for such Fiscal Year, without giving effect to this proviso)
may be carried forward to (but only to) the next succeeding Fiscal Year
(any such amount to be certified by the Company to the Agents in the
Compliance Certificate delivered for the last Fiscal Quarter of such
Fiscal Year, and any such amount carried forward to a succeeding Fiscal
Year shall be deemed to be used prior to the Company and its Restricted
Subsidiaries using the amount of Capital Expenditures permitted by this
Section in such succeeding Fiscal Year, without giving effect to such
carry-forward).
(b) The parties acknowledge and agree that the permitted
Capital Expenditure level set forth in clause (a) above shall be
exclusive of the amount of Capital Expenditures actually made with cash
capital contributions (other than any portion of Net Equity Proceeds
required to be applied as a mandatory prepayment pursuant to clause (d)
of Section 3.1.1) made, directly or indirectly, to the Company or any
of its Restricted Subsidiaries by FMH or Holdings, the proceeds of
equity issuances made by the Company or any of its Restricted
Subsidiaries, directly or indirectly, to FMH or Holdings, and
repayments by FMH or Holdings of the Intercompany Loans, in each case
after the Original Closing Date and specifically identified in a
certificate delivered by an Authorized Officer of the Company to the
Agents on or before the time such capital contribution or equity
issuance is made; provided, that, to the extent any such cash capital
contributions constitute Net Equity Proceeds, only that portion of such
Net Equity Proceeds which are not required to be applied as a
prepayment pursuant to clause (d) of Section 3.1.1 may be used for
Capital Expenditures pursuant to this clause (b).
SECTION 7.2.8. Consolidation, Merger, etc. The Company will not, and
will not permit any of its Restricted Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or
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with, any other corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division thereof)
except:
(a) any such Restricted Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Company (so long as
the Company is the surviving corporation of such combination or merger)
or any other Restricted Subsidiary, and the assets or stock of any
Restricted Subsidiary may be purchased or otherwise acquired by the
Company or any other Restricted Subsidiary; provided that,
notwithstanding the above, a Restricted Subsidiary may only liquidate
or dissolve into, or merge with and into, another Restricted Subsidiary
of the Company if, after giving effect to such combination or merger,
the Company continues to own (directly or indirectly), and the
Administrative Agent continues to have pledged to it pursuant to a
Pledge Agreement, a percentage of the issued and outstanding shares of
Capital Stock (on a fully diluted basis) of the Restricted Subsidiary
surviving such combination or merger that is equal to or in excess of
the percentage of the issued and outstanding shares of Capital Stock
(on a fully diluted basis) of the Restricted Subsidiary that does not
survive such combination or merger that was (immediately prior to the
combination or merger) owned by the Company or pledged to the
Administrative Agent; and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Company or any of its
Restricted Subsidiaries (other than the Trademark Subsidiary) may
purchase all or substantially all of the assets of any Person (or any
division thereof) not then a Subsidiary, or acquire such Person by
merger, if permitted (without duplication) pursuant to Section 7.2.7 or
clauses (f), (j), (k) or (l) of Section 7.2.5.
SECTION 7.2.9. Asset Dispositions, etc. The Company will not, and will
not permit any of its Restricted Subsidiaries to, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or other rights with
respect to, all or any part of its assets, whether now owned or hereafter
acquired (including accounts receivable and Capital Stock of Restricted
Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does not
constitute a sale, transfer, lease, contribution or other conveyance of
all or a substantial part of the Company's and its Restricted
Subsidiaries' assets, taken as a whole) or is of obsolete or worn-out
property, (ii) permitted by Section 7.2.8, or (iii) between the Company
and one of its Subsidiaries or between Subsidiaries of the Company;
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(b) such sale, transfer, lease, contribution or conveyance
constitutes (i) an Investment permitted under Section 7.2.5, (ii) a
Lien permitted under Section 7.2.3 or (iii) a Restricted Payment
permitted under Section 7.2.6; or
(c) (i) such sale, transfer, lease, contribution or conveyance
of such assets is for fair market value and the consideration consists
of no less than 75% in cash, (ii) the Net Disposition Proceeds received
from such assets, together with the Net Disposition Proceeds of all
other assets sold, transferred, leased, contributed or conveyed
pursuant to this clause (c) since the Closing Date, does not exceed
(individually or in the aggregate) $75,000,000 over the term of this
Agreement and (iii) an amount equal to the Net Disposition Proceeds
generated from such sale, transfer, lease, contribution or conveyance
is reinvested in the business of the Company and its Restricted
Subsidiaries, or, to the extent required thereunder, is applied to
prepay the Loans pursuant to the terms of Section 3.1.1 and Section
3.1.2.
SECTION 7.2.10. Modification of Certain Agreements. Without the prior
written consent of the Required Lenders, the Company will not, and will not
permit any of its Restricted Subsidiaries to, consent to any amendment,
supplement, amendment and restatement, waiver or other modification of any of
the terms or provisions contained in, or applicable to, any Senior Subordinated
Debt Document, any Material Document or any schedules, exhibits or agreements
related thereto (the "Restricted Agreements"), in each case which would (i)
materially adversely affect the rights or remedies of the Lenders, or materially
increase the obligations of the Company or any Restricted Subsidiary thereunder,
or the Company's or any other Obligor's ability to perform hereunder or under
any Loan Document, (ii) in the case of the Stock Purchase Agreement, which would
increase Holdings', FMH's, the Company's or any of the Company's Restricted
Subsidiaries' obligations or liabilities, contingent or otherwise, (iii)
increase the principal amount of, or increase the interest rate on, or add or
increase any fee with respect to such Senior Subordinated Debt or any such
Restricted Agreement, advance any dates upon which payments of principal or
interest are due thereon or change any of the covenants with respect thereto in
a manner which is more restrictive to the Company or any of its Restricted
Subsidiaries or (iv) change the subordination provisions thereof (including any
default or conditions to an event of default relating thereto), or change any
collateral therefor (other than to release such collateral), if (in the case of
this clause (iv)), the effect of such amendment or change, individually or
together with all other amendments or changes made, is to increase the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Senior Subordinated Debt, or any such Restricted Agreement (or a
trustee or other representative on their behalf).
SECTION 7.2.11. Transactions with Affiliates. The Company will not, and
will not permit any of its Restricted Subsidiaries to, enter into, or cause,
suffer or permit to exist any arrangement or contract with any of its other
Affiliates (other than any Obligor or any other
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Restricted Subsidiary of the Company) unless such arrangement or contract is
fair and equitable to the Company or such Restricted Subsidiary and is an
arrangement or contract of the kind which would be entered into by a prudent
Person in the position of the Company or such Subsidiary with a Person which is
not one of its Affiliates; provided, however, that the Company and its
Restricted Subsidiaries shall be permitted to (i) perform any covenants or
obligations (or receive any benefits), or take any other actions contemplated
under the Transaction Documents, (ii) make any Restricted Payment permitted
under Section 7.2.6 and (iii) enter into and perform their obligations under
arrangements with the Institutional Investors and their Affiliates for
underwriting, investment banking and advisory services on usual and customary
terms.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
enter into any agreement prohibiting:
(a) (i) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired
(other than, in the case of any assets acquired with the proceeds of
any Indebtedness permitted under clause (c) of Section 7.2.2, customary
limitations and prohibitions contained in such Indebtedness and in the
case of any Indebtedness permitted under clause (h) or (j) of Section
7.2.2, customary limitations in respect of the Non-U.S. Subsidiaries of
the Company that shall have incurred such Indebtedness and their
assets), or (ii) the ability of the Company or any other Obligor to
amend or otherwise modify this Agreement or any other Loan Document; or
(b) any Restricted Subsidiary from making any payments,
directly or indirectly, to the Company by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Restricted Subsidiary to make any payment, directly
or indirectly, to the Company (other than any limitations or
prohibitions existing in any Indebtedness permitted under clause (a) of
Section 7.2.2 or any Lien permitted under clause (a) of Section 7.2.3
or customary limitations and prohibitions in any Indebtedness permitted
under clause (h) or (j) of Section 7.2.2 that are applicable to the
Non-U.S. Subsidiaries of the Company that have incurred such
Indebtedness and their assets).
SECTION 7.2.13. Stock of Subsidiaries. The Company will not permit any
Restricted Subsidiary to issue any Capital Stock (whether for value or
otherwise) to any Person other than the Company or another wholly-owned
Subsidiary of the Company.
SECTION 7.2.14. Sale and Leaseback. The Company will not, and will not
permit any of its Restricted Subsidiaries to, enter into any agreement or
arrangement with any other Person
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providing for the leasing by the Company or any of its Restricted Subsidiaries
of real or personal property which has been or is to be sold or transferred by
the Company or any of its Restricted Subsidiaries to such other Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Company or any of its
Restricted Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) Any Borrower shall
default in the payment or prepayment of any principal of any Loan when due or
any Reimbursement Obligations or any deposit of cash for collateral purposes
pursuant to Section 2.8.4, as the case may be, or (b) any Obligor (including any
Borrower) shall default (and such default shall continue unremedied for a period
of three Business Days) in the payment when due of any interest or commitment
fee with respect to the Loans or Commitments or of any other monetary
Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
the Company or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate
(including the Closing Date Certificate) furnished by or on behalf of the
Company or any other Obligor to the Agents, any Issuer, the Arranger or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article V)
is or shall be incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Company shall default in the due performance and observance of any of its
obligations under Sections 7.1.9, 7.1.10, 7.1.11, 7.1.12 or 7.2 (other than
Section 7.2.1).
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Company by the Administrative Agent at the
direction of the Required Lenders.
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SECTION 8.1.5. Default on Other Indebtedness. A default shall occur (i)
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 8.1.1, of the Company, any of its Restricted Subsidiaries,
FMH or Holdings having a principal amount, individually or in the aggregate, in
excess of $5,000,000, or (ii) a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness
having a principal amount, individually or in the aggregate, in excess of
$5,000,000 if the effect of such default is to accelerate the maturity of any
such Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such Indebtedness,
or any trustee or agent for such holders, to cause such Indebtedness to become
due and payable prior to its expressed maturity, in each case exclusive of any
such default in respect of any Indebtedness set forth in Item 6.2 ("Contractual
Restrictions") of the Disclosure Schedule during the period ending on the 60th
day following the Closing Date.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $5,000,000 (not covered by insurance from a responsible
insurance company that is not denying its liability with respect thereto) shall
be rendered against the Company, any of its Restricted Subsidiaries, FMH or
Holdings and remain unvacated, unpaid and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order, or (ii)
there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan: (i) the termination of any Pension Plan if, as
a result of such termination, the Company would be required to make a
contribution to such Pension Plan, or would reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $5,000,000, or (ii) a
contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien under section 302(f) of ERISA in an amount in excess of
$5,000,000.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Company or any of its
Restricted Subsidiaries (other than immaterial Subsidiaries) or any other
Obligor shall:
(a) become insolvent or generally fail to pay, or admit in
writing its inability to pay, its debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for the Company or
any of such Restricted Subsidiaries (other than immaterial
Subsidiaries) or any other Obligor or any property of any thereof, or
make a general assignment for the benefit of creditors;
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(c) in the absence of such application, consent, acquiescence
or assignment, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Company or any of its
Restricted Subsidiaries (other than immaterial Subsidiaries) or any
other Obligor or for a substantial part of the property of any thereof,
and such trustee, receiver, sequestrator or other custodian shall not
be discharged within 60 days, provided that the Company, each such
Restricted Subsidiary and each other Obligor hereby expressly
authorizes the Agents, each Issuer and each Lender to appear in any
court conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Company or any
of its Restricted Subsidiaries (other than immaterial Subsidiaries) or
any other Obligor, and, if any such case or proceeding is not commenced
by the Company or such Restricted Subsidiary or such other Obligor,
such case or proceeding shall be consented to or acquiesced in by the
Company or such Restricted Subsidiary or such other Obligor or shall
result in the entry of an order for relief or shall remain for 60 days
undismissed, provided that the Company, each such Restricted Subsidiary
and each other Obligor hereby expressly authorizes the Agents, each
Issuer and each Lender to appear in any court conducting any such case
or proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents; or
(e) take any action (corporate or otherwise) authorizing, or
in furtherance of, any of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
the Company or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by the Loan Documents, except to the extent any event referred to
above (a) relates to assets of the Company or any of its Subsidiaries which are
immaterial, (b) results from the failure of the Administrative Agent to maintain
possession of certificates representing securities pledged under any Pledge
Agreement or to file continuation statements under the Uniform Commercial Code
of any applicable jurisdiction or (c) is covered by a lender's title insurance
policy and the relevant insurer promptly after the occurrence thereof shall have
acknowledged in writing that the same is covered by such title insurance policy.
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SECTION 8.1.11. Senior Subordinated Debt. The subordination provisions
relating to the Senior Subordinated Debt (the "Subordination Provisions") shall
fail to be enforceable by the Lenders (which have not effectively waived the
benefits thereof) in accordance with the terms thereof, or the principal or
interest on any Loan, Reimbursement Obligation or other Obligations shall fail
to constitute "Senior Debt" (as defined in any Senior Subordinated Debt) or
"senior indebtedness" (or any other similar term)), or the Company or any of its
Subsidiaries shall, directly or indirectly, disavow or contest in any manner (i)
the effectiveness, validity or enforceability of any of the Subordination
Provisions, or (ii) that any of such Subordination Provisions exist for the
benefit of the Agents and the Lenders.
SECTION 8.1.12. Failure to Refinance or Extend Senior Subordinated
Bridge Notes. The Company shall have failed to consummate a Permitted
Refinancing of Indebtedness in respect of the Senior Subordinated Bridge Notes
prior to the Maturity Date (as defined in the Securities Purchase Agreement,
dated as of May 1, 1998, among the Company and the Guarantors and Purchasers
party thereto, pursuant to which the Senior Subordinated Bridge Notes were
issued) (the "Bridge Note Maturity Date") and the Administrative Agent shall not
have received, prior to the Bridge Loan Maturity Date, evidence satisfactory to
it that the maturity of the Senior Subordinated Bridge Notes will, effective on
the Bridge Note Maturity Date, be extended to the seventh anniversary of the
date of the Senior Subordinated Bridge Notes.
SECTION 8.2. Action if Bankruptcy, etc. If any Event of Default
described in clauses (b), (c) and (d) of Section 8.1.9 shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations (including Reimbursement Obligations) shall automatically be and
become immediately due and payable, without notice or demand and the Company
shall automatically and immediately be obligated to deposit with the
Administrative Agent cash collateral in an amount equal to all Letter of Credit
Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than an Event of Default described in clauses (b), (c) and (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Company declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable, require applicable Borrowers
to provide cash collateral (in the relevant Currency) to be deposited with the
Administrative Agent in an amount equal to the undrawn amount of all Letters of
Credit outstanding and/or declare the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate and the applicable
Borrowers shall deposit with the Administrative
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Agent cash collateral (in the relevant Currency) in an amount equal to all
Letter of Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its
Syndication Agent, BTCo as its Administrative Agent and CSFB as its
Documentation Agent under and for purposes of this Agreement and each other Loan
Document. Each Lender authorizes the Agents to act on behalf of such Lender
under this Agreement and each other Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time by the
Agents (with respect to which each of the Agents agrees that it will comply,
except as otherwise provided in this Section or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Agents by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
the Agents, ratably in accordance with their respective Term Loans outstanding
and Commitments (or, if no Term Loans or Commitments are at the time outstanding
and in effect, then ratably in accordance with the principal amount of Term
Loans held by such Lender, and their respective Commitments as in effect in each
case on the date of the termination of this Agreement), from and against any and
all liabilities, obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on, incurred by or
asserted against, any of the Agents in any way relating to or arising out of
this Agreement and any other Loan Document, including reasonable attorneys'
fees, and as to which any Agent is not reimbursed by the Company or any other
Obligor (and without limiting the obligation of the Company or any other Obligor
to do so); provided, however, that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from such Agent's gross negligence or willful
misconduct. The Agents shall not be required to take any action hereunder or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement or any other Loan Document, unless it is indemnified hereunder to
its satisfaction. If any indemnity in favor of any of the Agents shall be or
become, in such Agent's determination, inadequate, the Agent may call for
additional indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time (5:00 p.m., London time, in the case of Foreign
Currency Loans other than Canadian Loans), on the day prior to a Borrowing or
Disbursement with respect to a Letter of Credit pursuant to Section 2.8.2 that
such Lender will not make available the amount which would constitute its
Percentage
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of such Borrowing on the date specified therefor, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If and to the extent that such Lender shall not
have made such amount available to the Administrative Agent, such Lender
severally agrees and the applicable Borrower agrees to repay the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such amount
available to such Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing.
SECTION 9.3. Exculpation. None of the Agents or the Arranger nor any of
their respective directors, officers, employees or agents shall be liable to any
Lender for any action taken or omitted to be taken by it under this Agreement or
any other Loan Document, or in connection herewith or therewith, except for its
own willful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor for
the creation, perfection or priority of any Liens purported to be created by any
of the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by any Borrower of its obligations hereunder or under
any other Loan Document. Any such inquiry which may be made by any Agent or any
Issuer shall not obligate it to make any further inquiry or to take any action.
The Agents and the Issuers shall be entitled to rely upon advice of counsel
concerning legal matters and upon any notice, consent, certificate, statement or
writing which the Agents or the Issuers, as applicable, believe to be genuine
and to have been presented by a proper Person.
SECTION 9.4. Successor. The Syndication Agent or the Documentation
Agent may resign as such upon one Business Day's notice to the Company and the
Administrative Agent. The Administrative Agent may resign as such at any time
upon at least 30 days' prior notice to the Company and all Lenders. If the
Administrative Agent at any time shall resign, the Required Lenders may, with
the prior consent of the Company (which consent shall not be unreasonably
withheld), appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the United States or a United States
branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may
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reasonably request, and shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions of (i) this
Article IX shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement, and (ii)
Section 11.3 and Section 11.4 shall continue to inure to its benefit.
SECTION 9.5. Credit Extensions by Each Agent and Issuer. Each Agent and
each Issuer shall have the same rights and powers with respect to (x) (i) in the
case of an Agent, the Credit Extensions made by it or any of its Affiliates and
(ii) in the case of an Issuer, the Loans made by it or any of its Affiliates,
and (y) the Notes, if any, held by it or any of its Affiliates as any other
Lender and may exercise the same as if it were not an Agent or an Issuer. Each
Agent, each Issuer and each of their respective Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Company or any Subsidiary or Affiliate of any Borrower as if such Agent or
Issuer were not an Agent or Issuer hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent, the Arranger, each Issuer and each other Lender,
and based on such Lender's review of the financial information of the Borrowers,
this Agreement, the other Loan Documents (the terms and provisions of which
being satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it will,
independently of each Agent, the Arranger, each Issuer and each other Lender,
and based on such other documents, information and investigations as it shall
deem appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by such Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for such Lender's account and copies of all other communications
received by the Administrative Agent from any Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of this
Agreement.
SECTION 9.8. The Syndication Agent, the Administrative Agent and the
Documentation Agent. Notwithstanding anything else to the contrary contained in
this Agreement or any other Loan Document, the Agents, in their respective
capacities as such, shall have no duties or responsibilities under this
Agreement or any other Loan Document nor any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or
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liabilities shall be read into this Agreement or otherwise exist against any
Agent, in such capacity, except as are explicitly set forth herein or in the
other Loan Documents.
ARTICLE X
COMPANY GUARANTY
SECTION 10.1. Guaranty. The Company hereby absolutely, unconditionally
and irrevocably
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations of each Foreign Borrower and
each other Obligor now or hereafter existing under this Agreement and
each other Loan Document to which such Foreign Borrower and each other
Obligor is or may become a party, whether for principal, interest,
fees, expenses or otherwise (including all such amounts which would
become due but for the operation of the automatic stay under Section
362(a) of the United States Bankruptcy Code, 11 U.S.C. ss.362(a), and
the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), and
(b) indemnifies and holds harmless each Lender for any and all
costs and expenses (including reasonable attorney's fees and expenses)
incurred by such Lender or such holder, as the case may be, in
enforcing any rights under this Article X;
This Article X constitutes a guaranty of payment when due and not of collection,
and the Company specifically agrees that it shall not be necessary or required
that any Lender exercise any right, assert any claim or demand or enforce any
remedy whatsoever against any Foreign Borrower or any other Obligor (or any
other Person) before or as a condition to the obligations of the Company
hereunder.
SECTION 10.2. Acceleration of Obligations Hereunder. The Company agrees
that, in the event of the dissolution or insolvency of any Foreign Borrower or
any other Obligor, or the inability or failure of any Foreign Borrower or any
other Obligor to pay its debts as they become due, or an assignment by any
Foreign Borrower or any other Obligor for the benefit of creditors, or the
commencement of any case or proceeding in respect of any Foreign Borrower or any
other Obligor under any bankruptcy, insolvency or similar laws, and if such
event shall occur at a time when any of the Obligations of any Foreign Borrower
or any other Obligor may not then be due and payable, the Company agrees that it
will pay to the Lenders forthwith the full amount which would be payable
hereunder by such Foreign Borrower if all such Obligations were then due and
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payable. The foregoing provisions of this Section 10.2 shall not be applicable
if the dissolution, insolvency or other events described above relate to an
Immaterial Subsidiary.
SECTION 10.3. Obligations Hereunder Absolute, etc. The obligations of
the Company under this Article X shall in all respects be a continuing,
absolute, unconditional and irrevocable guaranty of payment, and shall remain in
full force and effect until all Obligations of all Foreign Borrowers and each
other Obligor have been paid in full and all Commitments shall have terminated.
The Company guarantees that the Obligations of the Foreign Borrowers and each
other Obligor will be paid strictly in accordance with the terms of this
Agreement and each other Loan Document under which they arise, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Lender or any holder of any
Note with respect thereto. The liability of the Company under this Article X
shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of other
provisions of this Agreement or any other Loan Document;
(b) the failure of any Lender
(i) to assert any claim or demand or to enforce any
right or remedy against any Foreign Borrower, any other
Obligor or any other Person (including any other guarantor)
under the provisions of this Agreement, any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Obligations of
any Foreign Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of any Foreign
Borrower or any other Obligor, or any other extension, compromise or
renewal of any Obligation of any Foreign Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of
any Obligation of any Foreign Borrower or any other Obligor for any
reason, including any claim of waiver, release, surrender, alteration
or compromise, and shall not be subject to (and the Company hereby
waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligation of any
Foreign Borrower, any other Obligor or otherwise;
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(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the other
terms of this Agreement or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Lender securing any of the Obligations of any
Foreign Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any Foreign
Borrower, any other Obligor, any surety or any guarantor.
SECTION 10.4. Reinstatement, etc. The Company agrees that this Article
X shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations of any Foreign
Borrower is rescinded or must otherwise be restored by any Lender upon the
insolvency, bankruptcy or reorganization of any Foreign Borrower or any other
Obligor or otherwise, all as though such payment had not been made.
SECTION 10.5. Waiver, etc. The Company hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Foreign Borrowers or any other Obligor and this Article X and
any requirement that the Administrative Agent and any other Lender protect,
secure or perfect or insure any security interest or Lien, or any property
subject thereto, or exhaust any right or take any action against any Foreign
Borrower, any other Obligor or any other Person (including any other guarantor)
or entity or any collateral securing the Obligations of the Foreign Borrowers or
any other Obligor, as the case may be.
SECTION 10.6. Postponement of Subrogation. The Company agrees that it
will not exercise any rights which it may acquire by way of subrogation under
this Article X, by any payment made hereunder or otherwise, until the prior
payment, in full and in cash, of all Obligations of the Foreign Borrowers and
each other Obligor. Any amount paid to the Company on account of any such
subrogation rights prior to the payment in full of all Obligations of the
Foreign Borrowers and each other Obligor shall be held in trust for the benefit
of the Lenders and shall immediately be paid to the Lenders and credited and
applied against the Obligations of the Foreign Borrowers and each other Obligor
whether matured or unmatured, in accordance with the terms of this Agreement;
provided, however, that if all Obligations of the Foreign Borrowers and each
other Obligor have been paid in full and all Commitments have been permanently
terminated, each Lender agrees that, at the Company's request, the Lenders will
execute and deliver to the Company appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to the Company of an interest in the
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Obligations of the Foreign Borrowers and each other Obligor resulting from such
payment by the Company. In furtherance of the foregoing, for so long as any
Obligations of any Foreign Borrowers or any Commitments remain outstanding, the
Company shall refrain from taking any action or commencing any proceeding
against any Foreign Borrower or any other Obligor (or its successors or
assigns), whether in connection with a bankruptcy proceeding or otherwise to
recover any amounts in respect of payments made under this Article X to any
Lender.
SECTION 10.7. Successors, Transferees and Assigns; Transfers of Notes,
etc. Without limiting the generality of Section 11.11, any Lender may assign or
otherwise transfer (in whole or in part) any Obligation of any Borrower held by
it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including this Article X) or otherwise,
subject, however, to any contrary provisions in such assignment or transfer, and
to the provisions of Section 11.11 and Article IX of this Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Company and each Obligor party thereto and by the Required
Lenders; provided, however, that no such amendment, modification or waiver which
would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 11.1, or clause (i) of Section 11.10,
change the definitions of "Required Lenders" or "Total Exposure
Amount", increase any Commitment Amount or the Percentage of any Lender
(other than pursuant to Section 2.5 or clause (h) of Section 2.1.2),
reduce any fees described in Section 3.3 (other than the administration
fee referred to in Section 3.3.2), release any material Subsidiary
Guarantor from its obligations under the Subsidiary Guaranty, if any,
release all or substantially all of the collateral security (except in
each case as otherwise specifically provided in this Agreement, the
Subsidiary Guaranty, a Security Agreement or a Pledge Agreement) or
extend any Commitment Termination Date, shall be made without the
consent of each Lender adversely affected thereby;
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(c) extend the due date for, or reduce the amount of, any
scheduled repayment of principal of or interest on or fees payable in
respect of any Loan or reduce the principal amount of or rate of
interest on or fees payable in respect of any Loan or any Reimbursement
Obligations (which shall in each case include the conversion of all or
any part of the Obligations into equity of any Obligor), shall be made
without the consent of the Lender which has made such Loan or, in the
case of a Reimbursement Obligation, the Issuer owed, and those Lenders
participating in, such Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of
any Agent, Issuer or Arranger (in its capacity as Agent, Issuer or
Arranger), shall be made unless consented to by such Agent, Issuer or
Arranger, as the case may be;
(e) have the effect (either immediately or at some later time)
of enabling any Borrower to satisfy a condition precedent to the making
of a Revolving Loan or the issuance of a Letter of Credit, shall be
made without the consent of Lenders holding at least 51% of the
Revolving Loan Commitments; or
(f) amend, modify or waive the provisions of clause (a)(i) of
Section 3.1.1 or clause (b) of Section 3.1.2 or effect any amendment,
modification or waiver that by its terms adversely affects the rights
of Lenders participating in any Tranche differently from those of
Lenders participating in other Tranches, shall be made without the
consent of the holders of at least 51% of the aggregate amount of Loans
outstanding under the Tranche or Tranches affected by such amendment,
modification or waiver, or, in the case of an amendment, modification
or waiver affecting any Tranche or Tranches of Revolving Credit
Commitments, the Lenders holding at least 51% of the Revolving Loan
Commitments in respect of such Tranche or Tranches.
No failure or delay on the part of any Agent, any Issuer or any Lender in
exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on any Borrower in
any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by any Agent, any Issuer or any Lender
under this Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 11.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on Schedule II hereto or, in the case
of a Lender that becomes a party hereto after the date hereof, as
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set forth in the Lender Assignment Agreement pursuant to which such Lender
becomes a Lender hereunder or at such other address or facsimile number as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted (and
telephonic confirmation of receipt thereof has been received).
SECTION 11.3. Payment of Costs and Expenses. The Company agrees to pay
on demand all reasonable expenses of each of the Agents (including the
reasonable fees and out-of-pocket expenses of a single counsel to the Agents and
of local or foreign counsel, if any, who may be retained by counsel to the
Agents) in connection with
(a) the syndication by the Syndication Agent and the Arranger
of the Loans, the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each
Mortgage, each Pledge Agreement and each Security Agreement and/or any
Uniform Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any and
all other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or of
such Mortgage, Pledge Agreement or Security Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Company further agrees to pay, and to save the Agents, the Issuers and the
Lenders harmless from all liability for, any stamp or other similar taxes which
may be payable in connection with the execution or delivery of this Agreement,
the Credit Extensions made hereunder or the issuance of any Notes or Letters of
Credit or any other Loan Documents. The Company also agrees to reimburse each
Agent, each Issuer and each Lender upon demand for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and legal expenses) incurred by
such Agent, such Issuer or such Lender in connection with (x) the negotiation of
any restructuring or "work-out", whether or not consummated, of any Obligations
and (y) the enforcement of any Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Company hereby, to the
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fullest extent permitted under applicable law, indemnifies, exonerates and holds
each Agent, each Issuer, the Arranger and each Lender and each of their
respective Affiliates, and each of their respective partners, officers,
directors, employees and agents, and each other Person controlling any of the
foregoing within the meaning of either Section 15 of the Securities Act of 1933,
as amended, or Section 20 of the Securities Exchange Act of 1934, as amended
(collectively, the "Indemnified Parties"), free and harmless from and against
any and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses actually incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (excluding
any successful action brought by or on behalf of any Borrower as the
result of any failure by any Lender to make any Credit Extension
hereunder);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Company or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not such Agent, such Issuer, such Arranger or such
Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the Company's or any of its Subsidiaries' compliance with or liability
under Environmental Law or the Release by the Company or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission or release from, any real property owned
or operated by the Company or any Subsidiary thereof of any Hazardous
Material present on or under such property in a manner giving rise to
liability under any Environmental Law at or prior to the time the
Company or such Subsidiary owned or operated such property (including
any losses, liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless of whether
caused by, or within the control of, the Company or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct or any
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Hazardous Materials that are first manufactured, emitted, generated, treated,
released, stored or disposed of on any real property of the Company or any of
its Subsidiaries or any violation of Environmental Law or any other condition
that gives rise to liability under any Environmental Law, to the extent that the
Company can demonstrate, to the reasonable satisfaction of the Agents, and that
such event first occurred on or with respect to any real property of the Company
or any of its Subsidiaries after such real property was transferred to any
Indemnified Person or its successor by foreclosure sale, deed in lieu of
foreclosure, or similar transfer and such manufacture, emission, release,
generation, treatment, storage, disposal, violation or condition was not
actually caused by Holdings, FMH, the Company or any of the Company's
Subsidiaries. The Company and its permitted successors and assigns hereby waive,
release and agree not to make any claim, or bring any cost recovery action
against, any Agent, any Issuer, the Arranger or any Lender under CERCLA or any
state equivalent, or any similar law now existing or hereafter enacted, except
to the extent arising out of the gross negligence or willful misconduct of any
Indemnified Party. It is expressly understood and agreed that to the extent that
any of such Persons is strictly liable under any Environmental Laws, the
Company's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of the Company, to the extent permitted
under applicable law, with respect to the violation or condition which results
in liability of such Person. Notwithstanding anything to the contrary herein,
each Agent, each Issuer, the Arranger and each Lender shall be responsible with
respect to any Hazardous Materials that are first manufactured, emitted,
generated, treated, released, stored or disposed of on any real property of the
Company or any of its Subsidiaries or any violation of Environmental Law or any
other condition that gives rise to liability under any Environmental Law that
first occurs on or with respect to any such real property after such real
property is transferred to any Agent, Issuer, Arranger or Lender or to its
successor by foreclosure sale, deed in lieu of foreclosure, or similar transfer,
except to the extent such manufacture, emission, release, generation, treatment,
storage, disposal, violation or condition is actually caused by Holdings, FMH,
the Company or any of the Company's Subsidiaries. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Company hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5. Survival. The obligations of the Company under Sections
4.3, 4.4, 4.5, 4.6, 11.3 and 11.4, and the obligations of the Lenders under
Sections 4.8 and 9.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by the Company and each
other Obligor in this Agreement and in each other Loan Document shall survive
the execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without
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invalidating the remaining provisions of this Agreement or such Loan Document or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts. This Agreement may be executed
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT AND,
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED THEREIN, EACH OTHER LOAN
DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement and the other Loan
Documents constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto. Upon the execution and delivery of this Agreement
by the parties hereto, all obligations and liabilities of the Institutional
Investors and any of their Affiliates under or relating or with respect to the
Commitment Letter shall be terminated and of no further force or effect.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that (i) no Borrower may assign or
transfer its rights or obligations hereunder without the prior written consent
of each of the Agents and all Lenders, and (ii) the rights of sale, assignment
and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons, on a non pro rata basis (except as
provided below), in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. Any Lender (the "Assignor Lender"),
(a) with the written consents of the Company, the
Administrative Agent and (in the case of any assignment of
participations in Letters of Credit or Revolving Loan Commitments) the
applicable Issuer (which consents shall not be unreasonably delayed or
withheld and which consents of the Agents and the Issuers shall not be
required in the case of assignments made by the Agents or any of their
Affiliates), may at any time
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assign and delegate to one or more commercial banks or other financial
institutions or funds which are regularly engaged in making, purchasing
or investing in loans or securities, and
(b) with notice to the Company, the Administrative Agent, and
(in the case of any assignment of participations in Letters of Credit
or Revolving Loan Commitments) the applicable Issuer, but without the
consent of the Company, the Agents or any Issuer, may assign and
delegate to any of its Affiliates or to any other Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's Term Loans of any
Tranche, Uncommitted Revolving Loans of any Tranche or Committed Revolving
Loans, participations in Letters of Credit, Letter of Credit Outstandings with
respect thereto and related Commitment of any Tranche (which assignment and
delegation shall be, as among Revolving Loan Commitments, Committed Revolving
Loans and participations in Letters of Credit in any Currency, of a constant,
and not a varying, percentage) in a minimum aggregate amount of (i) $5,000,000
or, so long as after giving effect to such assignment and delegation the
aggregate amount of the Assignor Lender's outstanding Term Loans and Commitments
and the Assignee Lender's outstanding Term Loans and Commitments are each
greater than $5,000,000, $1,000,000 (or, in the case of Foreign Currency Loans,
the multiple of 100,000 units of the Currency of such Loans the U.S. Dollar
Equivalent of which is nearest to $5,000,000 or $1,000,000, as the case may be)
or (ii) with respect to the Tranche in which such assignment is to occur, the
then remaining amount of such Lender's Term Loans, Uncommitted Revolving Loans
or Committed Revolving Loans, participations in Letters of Credit and related
Commitment in any Currency, as the case may be; provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions contained in
Section 4.6 and the Borrowers, each other Obligor and the Agents shall be
entitled to continue to deal solely and directly with such Lender in connection
with the interests so assigned and delegated to an Assignee Lender until
(i) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Company,
the applicable Borrower (if other than the Company) and the Agents by
such Lender and such Assignee Lender;
(ii) such Assignee Lender shall have executed and delivered to
the applicable Borrower and the Agents a Lender Assignment Agreement,
accepted by the Agents;
(iii) the processing fees described below shall have been
paid; and
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(iv) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to clause (b) of
Section 2.9.
From and after the date that the Agents accept such Lender Assignment Agreement
and such assignment and delegation is registered in the Register pursuant to
clause (b) of Section 2.9, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the Assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Any Assignor Lender that shall have previously requested and
received any Note or Notes in respect of any Tranche to which any such
assignment applies shall, upon the acceptance by the Administrative Agent of the
applicable Lender Assignment Agreement, ▇▇▇▇ such Note or Notes "exchanged" and
deliver them to the applicable Borrower (against, if the Assignor Lender has
retained Loans or Commitments with respect to the applicable Tranche and has
requested replacement Notes pursuant to clause (b)(ii) of Section 2.9, its
receipt from the applicable Borrower of replacement Notes in the principal
amount of the Loans and Commitments of the applicable Tranche retained by it).
Such Assignor Lender or such Assignee Lender (unless the Assignor Lender or the
Assignee Lender is an Agent or one of its Affiliates) must also pay a processing
fee to the Administrative Agent upon delivery of any Lender Assignment Agreement
in the amount of $1,500, unless such assignment and delegation is by a Lender to
its Affiliate or if such assignment and delegation is by a Lender to a Federal
Reserve Bank, as provided below or is otherwise consented to by the
Administrative Agent. Any attempted assignment and delegation not made in
accordance with this Section 11.11.1 shall be, unless otherwise consented to by
the Administrative Agent and the Company, null and void. Nothing contained in
this Section 11.11.1 shall prevent or prohibit any Lender from pledging its
rights (but not its obligations to make Loans or participate in Letters of
Credit or Letter of Credit Outstandings) under this Agreement and/or its Loans
and/or its Notes hereunder (i) to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank, (ii) in the case
of a Lender that is an investment fund, to its trustee in support of its
obligations to its trustee, in either case without notice to or consent of the
Company or the Agents or (iii) in connection with the securitization of all or
any portion of its assets; provided, however, that (A) such Lender shall remain
a "Lender" under this Agreement and shall continue to be bound by the terms and
conditions set forth in, and shall continue to exercise all of its voting rights
under, this Agreement and the other Loan Documents, and (B) any assignment by
such trustee of its rights under this Agreement shall be subject to the
provisions of clause (a) of this Section 11.11.1. In the event that S&P, ▇▇▇▇▇'▇
or ▇▇▇▇▇▇▇▇'▇ BankWatch (or InsuranceWatch Ratings Service, in the case of
Lenders that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by Insurance Watch Ratings Service)) shall, after
the date that any Lender with a Commitment to make Revolving Loans or
participate
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in Letters of Credit becomes a Lender, downgrade the long-term certificate of
deposit rating or long-term senior unsecured debt rating of such Lender, and the
resulting rating shall be below BBB-, Baa3 or C (or BB, in the case of Lender
that is an insurance company (or B, in the case of an insurance company not
rated by InsuranceWatch Ratings Service)) respectively, then the Issuers or the
Company (with the consent of the Agents and the Issuers) shall have the right,
but not the obligation, upon notice to such Lender and the Agents, to replace
such Lender with an Assignee Lender in accordance with and subject to the
restrictions contained in this Section, and such Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in this Section) all its interests, rights and
obligations in respect of its Revolving Loan Commitments under this Agreement to
such Assignee Lender; provided, however, that (i) no such assignment shall
conflict with any law, rule, regulation or order of any governmental authority
and (ii) such Assignee Lender shall pay to such Lender in immediately available
funds on the date of such assignment the principal of and interest and fees (if
any) accrued to the date of payment on the Loans made, and Letters of Credit
participated in, by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
SECTION 11.11.2. Participations. Any Lender may at any time sell to one
or more commercial banks or other Persons (each such commercial bank and other
Person being herein called a "Participant") participating interests in any of
the Loans, Commitments, participations in Letters of Credit and Letter of Credit
Outstandings or other interests of such Lender hereunder; provided, however,
that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Company and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each
of the other Loan Documents;
(d) no Participant, unless such Participant is itself a
Lender, shall be entitled to require such Lender to take or refrain
from taking any action hereunder or under any other Loan Document,
except that such Lender may agree with any Participant that such Lender
will not, without such Participant's consent, agree to (i) any
reduction in the interest rate or amount of fees that such Participant
is otherwise entitled to, (ii) a decrease in the principal amount, or
an extension of the final Stated Maturity Date, of any Loan in which
such Participant has purchased a participating interest or (iii) a
release of all or substantially all of the collateral security under
the Loan Documents or Holdings, FMH
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or any material Subsidiary Guarantor under its guaranty hereunder, if
any, in each case except as otherwise specifically provided in a Loan
Document; and
(e) no Borrower shall be required to pay any amount under
Sections 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4 that is greater than the
amount which it would have been required to pay had no participating
interest been sold.
The Borrowers acknowledge and agree, subject to clause (e) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and 11.4, shall be considered a
Lender.
SECTION 11.12. Other Transactions. Nothing contained herein shall
preclude any Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with any Borrower or any of its Affiliates in which such Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS, THE ISSUERS OR THE BORROWERS RELATING THERETO SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE
COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY, OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWERS HEREBY
EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK, NEW YORK COUNTY, AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. THE BORROWERS IRREVOCABLY CONSENT TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWERS HEREBY EXPRESSLY AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
THEY MAY HAVE OR
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HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWERS HAVE OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO THEMSELVES OR THEIR
PROPERTY, THE BORROWERS HEREBY IRREVOCABLY WAIVE (TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW) SUCH IMMUNITY IN RESPECT OF THEIR OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14. Waiver of Jury Trial. THE AGENTS, THE ISSUERS, THE
LENDERS AND THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS OR THE BORROWERS
RELATING THERETO. THE BORROWERS ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER LOAN DOCUMENT TO WHICH THEY ARE A PARTY) AND THAT THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE ISSUERS AND THE LENDERS ENTERING
INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 11.15. Judgment Currency. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due hereunder, under any
Note or under any other Loan Document in another currency into U.S. Dollars or
into a Foreign Currency, as the case may be, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which, in accordance with normal banking procedures, the
applicable Secured Party could purchase such other currency with U.S. Dollars or
with such Foreign Currency, as the case may be, in New York City, at the close
of business on the Business Day immediately preceding the day on which final
judgment is given, together with any premiums and costs of exchange payable in
connection with such purchase.
(b) The obligation of each of the Borrowers in respect of any sum due
from it to any Agent, any Lender or any other Secured Party hereunder, under any
Note or under any other Loan Document shall, notwithstanding any judgment in a
currency other than U.S. Dollars or a
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Foreign Currency, as the case may be, be discharged only to the extent that on
the Business Day next succeeding receipt by such Agent, such Lender or such
other Secured Party of any sum adjudged to be so due in such other currency,
such Agent, such Lender or such other Secured Party may, in accordance with
normal banking procedures, purchase U.S. Dollars or such Foreign Currency, as
the case may be, with such other currency. If the U.S. Dollars or such Foreign
Currency so purchased are less than the sum originally due to such Agent, such
Lender or such other Secured Party in U.S. Dollars or in such Foreign Currency,
each of the Borrowers agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Agent, such Lender or such other Secured Party
against such loss.
SECTION 11.16. Confidentiality. The Agents, the Issuers, the Arranger
and the Lenders shall hold all non-public information obtained pursuant to or in
connection with this Agreement or obtained by them based on a review of the
books and records of the Company or any of its Subsidiaries in accordance with
their customary procedures for handling confidential information of this nature,
but may make disclosure to any of their examiners, regulators (including,
without limitation, the National Association of Insurance Commissioners),
Affiliates, outside auditors, counsel and other professional advisors in
connection with this Agreement or as reasonably required by any potential bona
fide transferee, participant or assignee, or in connection with the exercise of
remedies under a Loan Document, or as requested by any governmental agency or
representative thereof or pursuant to legal process; provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Agent, each Issuer, the Arranger and each Lender shall
promptly notify the Company of any request by any governmental agency
or representative thereof (other than any such request in connection
with an examination of the financial condition of such Agent, Issuer,
Arranger or Lender by such governmental agency) for disclosure of any
such non-public information and, where practicable, prior to disclosure
of such information;
(b) prior to any such disclosure pursuant to this Section
11.16, each Agent, each Issuer, the Arranger and each Lender shall
require any such bona fide transferee, participant and assignee
receiving a disclosure of non-public information to agree in writing
(i) to be bound by this Section 11.16; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section 11.16;
(c) disclosure may, with the consent of the Agents and the
Company, be made by any Lender to any direct or indirect contractual
counterparties of such Lender in swap
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agreements or such contractual counterparties' professional advisors;
provided that such contractual counterparty or professional advisor
agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder; and
(d) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by the
Company or any Subsidiary.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
FORMICA CORPORATION
By:
---------------------------
Title:
FORMICA LIMITED
By:
---------------------------
Title:
FORMICA HOLDCO (UK) LIMITED
By:
---------------------------
Title:
FORMICA CANADA, INC.
By:
---------------------------
Title:
▇▇▇▇▇▇▇ ▇.▇.
By:
---------------------------
Title:
FORMICA ESPANOLA S.A..
By:
---------------------------
Title:
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and as
Lender
By:
---------------------------
Title:
BANKERS TRUST COMPANY,
as the Administrative Agent
and as Lender
By:
---------------------------
Title:
CREDIT SUISSE FIRST BOSTON,
as the Documentation Agent
and as Lender
By:
---------------------------
Title:
By:
---------------------------
Title:
SCHEDULE I
to Credit Agreement
DISCLOSURE SCHEDULE
[TO COME]
SCHEDULE II
to Credit Agreement
PERCENTAGES
[TO COME]
ADMINISTRATIVE INFORMATION
[TO COME]
SCHEDULE III
to Credit Agreement
ILLUSTRATIONS WITH RESPECT TO SECTION 2.5(D)
I. Addition of Foreign Currency Revolving Loan Commitment as a Result of
Effectiveness of a Foreign Currency Revolving Loan Commitment Addendum
A. Assume:
1. U.S. Revolving Loan Commitment Amount equals
$100,000,000 with Lenders ("Lender A" and
"Lender B") having Commitments thereunder with
Percentages of 50% each
2. Lender A agrees to a Foreign Currency Revolving
Loan Commitment Addendum pursuant to which it
commits to provide 100% of a Foreign Currency
Revolving Loan Commitment in French Francs with
a U.S.
Dollar Equivalent of $10,000,000
B. Operation of Section 2.5(d)
1. Lender A's Commitment with respect to U.S.
Revolving Loans is decreased to equal:
(Prior U.S. Percentage x Prior minus (New Percentage for New Foreign
Aggregate U.S. Commitment) Commitment x New Aggregate
Foreign Commitment)
= (50% x $100,000,000) minus (100% x $10,000,000)
= $50,000,000 minus $10,000,000
= $40,000,000
2. Lender B's Commitment with respect to U.S.
Revolving Loans remains unchanged at $50,000,000
3. As a result of 1 and 2, the U.S. Revolving Loan
Commitment Amount adjusts to $90,000,000 (Lender A's
$40,000,000 plus Lender B's $50,000,000), and,
consequently, Lender A's Percentage with respect to
the U.S. Revolving Loan Commitment is adjusted
to equal 44.444444444% (i.e., $40,000,000 /
$90,000,000) and Lender B's Percentage with
respect to the U.S. Revolving Loan Commitment
is adjusted to equal 55.555555555% (i.e.,
$50,000,000 / $90,000,000).
II. Optional Reduction of a Foreign Currency Revolving Loan Commitment
A. Assume:
1. U.S. Revolving Loan Commitment Amount equals
$90,000,000 with Lenders ("Lender A" and "Lender
B") having Commitments thereunder with
Percentages of 44.444444444% and 55.555555555%,
respectively
2. A French Franc Revolving Loan Commitment in an
amount equal to the U.S. Dollar Equivalent of
$10,000,000 is in effect with Lender A having a
Commitment thereunder with a Percentage of 100%
3. The Company elects to reduce the French Franc
Revolving Loan Commitment by an amount equal to
the U.S. Dollar Equivalent of $6,000,000;
accordingly, Lender A's Commitment with respect
to French Franc Revolving Loans is decreased
from a U.S. Dollar Equivalent of $10,000,000 to
$4,000,000
B. Operation of Section 2.5(d)
1. Lender A's Commitment with respect to U.S.
Revolving Loans is increased to equal:
(Prior U.S. Percentage x Prior plus (Percentage for Applicable Foreign
Aggregate U.S. Commitment) Commitment x Amount of Foreign
Commitment Reduction)
= (44.444444444% x $90,000,000) plus (100% x $6,000,000)
= $40,000,000 plus $6,000,000
= $46,000,000
2. Lender B's Commitment with respect to U.S.
Revolving Loans remains unchanged at $50,000,000
3. As a result of 1 and 2, the U.S. Revolving Loan
Commitment Amount adjusts to $96,000,000 (Lender
A's $46,000,000 plus Lender B's $50,000,000),
and, consequently, Lender A's Percentage with
respect to
the U.S. Revolving Loan Commitment is adjusted
to equal 47.916666666% (i.e., $46,000,000 /
$96,000,000) and Lender B's Percentage with
respect to the U.S. Revolving Loan Commitment
is adjusted to equal 52.083333333% (i.e.,
$50,000,000 / $96,000,000).
SCHEDULE IV
to Credit Agreement
ADDITIONAL COSTS RATE
1. Additional = BD + C (D - E) + A x .01
------------------------
Cost 100 - (B + C)
Rate
Where on the day upon which the calculation fails to be made
A is the rate payable by the Agent to the Financial Services
Authority pursuant to the Fees Regulations (but, for this
purpose, the figure at paragraph [2.02b]/[2.03b] of the Fees
Regulations shall be deemed to be zero) and expressed in
pounds per (pound)1,000,000 of the Fee Base of the Agent;
B is the percentage of eligible liabilities (assuming these to
be in excess of any stated minimum) which the Agent is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England, to comply with cash
ratio requirements;
C is the percentage of eligible liabilities which the Agent is
required from time to time to maintain as interest-bearing
special deposits with the Bank of England;
D is the percentage rate per annum at which Sterling deposits
are offered by the Agent in accordance with its normal
practice, for a period equal to (a) the relevant Interest
Period (or, as the case may be, remainder of such Interest
Period) in respect of the relevant Credit Extension or (b)
three months, whichever is the shorter, to a leading bank in
the London Interbank Market at or about 11:00 a.m. in a sum
approximately equal to the amount of such Credit Extension;
E is the percentage rate per annum payable by the Bank of
England to the Agent on interest-bearing special deposits.
2. For the purposes of this Schedule:
(a) "eligible liabilities" and "special deposits" shall
bear the meanings ascribed to them from time to
time under or pursuant to the Bank of England
Act 1988 or (as appropriate) by the Bank of
England;
(b) "Fee Regulations" means the Banking Supervision
(Fees) Regulations 1998 or such other
regulations as may be in force from time to time
in respect of the payment of fees for banking
supervision; and
(c) "Fee Base" shall bear the meaning ascribed to it,
and shall be calculated in accordance with, the
Fees Regulations.
3. The percentages used in B and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with D above.
4. In application of the above formula, B, C, D and E will be included
in the formula as figures and not as percentages e.g. if B is 0.5
per cent. and D is 12 per cent., BD will be calculated as 0.5 x 12
and not as 0.5 per cent. x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting E from D shall be taken
as zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty-second of
one per cent. per annum.
8. Additional amounts calculated in accordance with this Schedule are
payable on the last day of the Interest Period to which they relate.
9. The determination of the Additional Costs Rate by the Agent in
relation to any period shall, in the absence of manifest error, be
conclusive and binding on all of the parties hereto.
10. The Agent may from time to time, after consultation with the Lenders
and the Borrowers, determine and notify to all the parties to this
Agreement any amendments or variations which are required to be
made to the formula set out above in order to comply with any
requirements from time to time imposed by the Bank of England or
the Financial Services Authority (or any other authority which
replaces all or any of their functions) in relation to any Credit
Extension (including, without limitation, any requirements
relating to Sterling primary liquidity) and any such determination
shall, in the absence of manifest error, be conclusive and binding
on all the parties to this Agreement.
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms........................................................4
1.2. Use of Defined Terms................................................48
1.3. Cross-References....................................................48
1.4. Accounting and Financial Determinations.............................48
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments.........................................................49
2.1.1. Term Loan Commitments...............................................50
2.1.2. Revolving Loan Commitments and Swing Line Loan Commitment...........51
2.1.3. Letter of Credit Commitment.........................................53
2.1.4. Lenders Not Permitted or Required to Make the Loans.................54
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit.........55
2.2. Optional Reduction of the Revolving Loan Commitment Amounts.........55
2.3. Borrowing Procedures and Funding Maintenance........................55
2.3.1. Term Loans and Revolving Loans......................................55
2.3.2. Swing Line Loans....................................................56
2.4. Uncommitted Revolving Loans.........................................57
2.4.1. Uncommitted Revolving Loan Borrowing Request........................57
2.4.2. Invitation for Uncommitted Interest Quotes..........................58
2.4.3. Submission and Contents of Uncommitted Interest Quotes..............59
2.4.4. Uncommitted Revolving Loan Acceptance...............................60
2.5. Committed Foreign Currency Revolving Loans; Spanish Term Loans......61
2.6. Continuation and Conversion Elections...............................64
2.6.1. Converting Canadian Prime Rate Loans to Canadian BAs................64
2.6.2. Converting Canadian BAs to Canadian Prime Rate Loans................64
2.7. Funding.............................................................65
2.8. Issuance Procedures.................................................65
2.8.1. Other Lenders' Participation........................................66
2.8.2. Disbursements; Conversion to Revolving Loans........................66
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Section Page
2.8.3. Reimbursement.......................................................67
2.8.4. Deemed Disbursements................................................68
2.8.5. Nature of Reimbursement Obligations.................................68
2.8.6. Deemed Issuance of Existing Letters of Credit.......................69
2.9. Register; Notes.....................................................69
2.10. European Monetary Union.............................................71
2.11. Canadian BAs........................................................71
2.11.1. Funding of Canadian BAs.............................................71
2.11.2. Presigned Draft Forms...............................................72
2.11.3. Depository Bills and Notes Act......................................73
2.11.4. Special Provisions Relating to Acceptance Notes.....................73
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application.............................74
3.1.1. Repayments and Prepayments..........................................74
3.1.2. Application.........................................................79
3.2. Interest Provisions.................................................80
3.2.1. Rates...............................................................80
3.2.2. Post-Maturity Rates.................................................80
3.2.3. Payment Dates.......................................................81
3.3. Fees................................................................81
3.3.1. Commitment Fee......................................................82
3.3.2. Administrative Agent Fee............................................82
3.3.3. Letter of Credit Fee................................................82
ARTICLE IV
CERTAIN LIBO RATE, CANADIAN BA AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful..........................................83
4.2. Deposits Unavailable; Circumstances Making Canadian BAs Unavailable.83
4.3. Increased Fixed Rate Loan Costs, etc................................84
4.4. Funding Losses......................................................84
4.5. Increased Capital Costs.............................................85
4.6. Taxes...............................................................85
4.7. Payments, Computations, etc.........................................88
4.8. Sharing of Payments.................................................88
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Section Page
4.9. Setoff..............................................................89
4.10. Mitigation..........................................................89
4.11. Replacement of Lenders..............................................89
ARTICLE V
CONDITIONS TO EFFECTIVENESS
5.1. Effectiveness.......................................................90
5.1.1. Resolutions, etc....................................................90
5.1.2. Closing Date Certificate............................................90
5.1.3. Delivery of Notes...................................................91
5.1.4. Affirmation and Consent.............................................91
5.1.5. Subsidiary Guaranty Supplement......................................91
5.1.6. Pledge Agreements...................................................91
5.1.7. Opinions of Counsel.................................................91
5.1.8. Financial Information...............................................92
5.1.9. Insurance...........................................................92
5.1.10. Purchase Price Adjustments..........................................92
5.1.11. Closing Fees, Expenses, etc.........................................92
5.1.12. Satisfactory Legal Form.............................................92
5.2. All Credit Extensions...............................................93
5.2.1. Compliance with Warranties, No Default, etc.........................93
5.2.2. Credit Extension Request............................................93
5.3. First Borrowing by Each Foreign Subsidiary..........................93
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc...................................................94
6.2. Due Authorization, Non-Contravention, etc...........................95
6.3. Government Approval, Regulation, etc................................95
6.4. Validity, etc.......................................................95
6.5. Financial Information...............................................95
6.6. No Material Adverse Change..........................................96
6.7. Litigation, Labor Controversies, etc................................96
6.8. Subsidiaries........................................................96
6.9. Ownership of Properties.............................................96
6.10. Taxes...............................................................96
6.11. Pension and Welfare Plans...........................................96
6.12. Environmental Warranties............................................97
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Section Page
6.13. Regulations U and X.................................................98
6.14. Accuracy of Information.............................................98
6.15. Solvency............................................................99
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants...............................................99
7.1.1. Financial Information, Reports, Notices, etc........................99
7.1.2. Compliance with Laws, etc..........................................101
7.1.3. Maintenance of Properties..........................................101
7.1.4. Insurance..........................................................101
7.1.5. Books and Records..................................................101
7.1.6. Environmental Covenant.............................................102
7.1.7. Future Subsidiaries................................................102
7.1.8. Future Leased Property and Future Acquisitions of Real Property;
Future Acquisition of Other Property.............................104
7.1.9. Use of Proceeds, etc...............................................105
7.1.10. Hedging Obligations................................................105
7.1.11. Mortgages..........................................................105
7.1.12. Certain Indebtedness...............................................106
7.2. Negative Covenants.................................................106
7.2.1. Business Activities................................................106
7.2.2. Indebtedness.......................................................107
7.2.3. Liens..............................................................108
7.2.4. Financial Covenants................................................110
7.2.5. Investments........................................................112
7.2.6. Restricted Payments, etc...........................................114
7.2.7. Capital Expenditures, etc..........................................116
7.2.8. Consolidation, Merger, etc.........................................117
7.2.9. Asset Dispositions, etc............................................117
7.2.10. Modification of Certain Agreements.................................118
7.2.11. Transactions with Affiliates.......................................119
7.2.12. Negative Pledges, Restrictive Agreements, etc......................119
7.2.13. Stock of Subsidiaries..............................................120
7.2.14. Sale and Leaseback.................................................120
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Section Page
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.......................................120
8.1.1. Non-Payment of Obligations.........................................120
8.1.2. Breach of Warranty.................................................120
8.1.3. Non-Performance of Certain Covenants and Obligations...............120
8.1.4. Non-Performance of Other Covenants and Obligations.................120
8.1.5. Default on Other Indebtedness......................................121
8.1.6. Judgments..........................................................121
8.1.7. Pension Plans......................................................121
8.1.8. Change in Control..................................................121
8.1.9. Bankruptcy, Insolvency, etc........................................121
8.1.10. Impairment of Security, etc........................................122
8.1.11. Senior Subordinated Debt...........................................122
8.1.12. Failure to Refinance or Extend Senior Subordinated Bridge Notes....123
8.2. Action if Bankruptcy, etc..........................................123
8.3. Action if Other Event of Default...................................123
ARTICLE IX
THE AGENTS
9.1. Actions............................................................124
9.2. Funding Reliance, etc..............................................124
9.3. Exculpation........................................................125
9.4. Successor..........................................................125
9.5. Credit Extensions by Each Agent and Issuer.........................126
9.6. Credit Decisions...................................................126
9.7. Copies, etc........................................................126
9.8. The Syndication Agent, the Administrative Agent and the
Documentation Agent..............................................126
ARTICLE X
COMPANY GUARANTY
10.1. Guaranty...........................................................126
10.2. Acceleration of Obligations Hereunder..............................127
10.3. Obligations Hereunder Absolute, etc................................127
10.4. Reinstatement, etc.................................................128
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Section Page
10.5. Waiver, etc........................................................129
10.6. Postponement of Subrogation........................................129
10.7. Successors, Transferees and Assigns; Transfers of Notes, etc.......129
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc...........................................130
11.2. Notices............................................................131
11.3. Payment of Costs and Expenses......................................131
11.4. Indemnification....................................................132
11.5. Survival...........................................................134
11.6. Severability.......................................................134
11.7. Headings...........................................................134
11.8. Execution in Counterparts..........................................134
11.9. Governing Law; Entire Agreement....................................134
11.10. Successors and Assigns.............................................134
11.11. Sale and Transfer of Loans and Notes; Participations in Loans
and Notes........................................................134
11.11.1. Assignments........................................................135
11.11.2. Participations.....................................................137
11.12. Other Transactions.................................................138
11.13. Forum Selection and Consent to Jurisdiction........................138
11.14. Waiver of Jury Trial...............................................139
11.15. Judgment Currency..................................................139
11.16. Confidentiality....................................................140
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
SCHEDULE III - Illustrations Relating to Section 2.5(d)
SCHEDULE IV - Additional Cost Determination
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT A-3 - Form of Swing Line Note
EXHIBIT A-4 - Form of Acceptance Note
EXHIBIT B-1 - Form of Committed Loan Borrowing Request
EXHIBIT B-2 - Form of Uncommitted Revolving Loan Borrowing Request
EXHIBIT B-3 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
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Section Page
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E-1 - Form of Compliance Certificate
EXHIBIT E-2 - Form of U.S. Dollar Equivalent Certificate
EXHIBIT F - Form of Lender Assignment Agreement
EXHIBIT G-1 - Form of Foreign Currency Revolving Loan Commitment
Addendum
EXHIBIT G-2 - Form of Foreign Currency Term Loan Commitment Addendum
EXHIBIT G-3 - Form of Uncommitted Revolving Borrowing Addendum
EXHIBIT G-4 - Form of Invitation for Uncommitted Interest Quotes
EXHIBIT G-5 - Form of Uncommitted Interest Quotes
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