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CREDIT AGREEMENT
Dated as of
April 21, 1999
among
▇.▇. ▇▇▇▇▇▇ AUTOMOTIVE CASTINGS, INC.,
AS US BORROWER,
AUTOMOTIVE COMPONENTS INVESTMENTS LIMITED,
AS ENGLISH BIDCO,
▇▇▇▇▇▇ ▇▇▇▇▇ LIMITED,
AS ENGLISH BORROWER AND EURO BORROWER,
The Several Lenders
from Time to Time Parties Hereto
BANK OF AMERICA NT & SA,
AS SYNDICATION AGENT
CHASE MANHATTAN INTERNATIONAL LIMITED,
AS ENGLISH AGENT AND EURO AGENT
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
----------------------
----------------------
CHASE SECURITIES INC.
and
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC,
AS LEAD ARRANGERS AND JOINT BOOK MANAGERS
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[GRAPHIC OMITTED]
EXHIBIT 10.1
CREDIT AGREEMENT, dated as of April 21, 1999, among ▇.▇.
▇▇▇▇▇▇ AUTOMOTIVE CASTINGS, INC., a Delaware corporation (the "US BORROWER"),
AUTOMOTIVE COMPONENTS INVESTMENTS LIMITED, a private limited company
incorporated under the laws of England and Wales ("ENGLISH BIDCO"), ▇▇▇▇▇▇ ▇▇▇▇▇
LIMITED, a private limited company incorporated under the laws of England and
Wales (in its capacity as the borrower of Pounds Sterling hereunder, the
"ENGLISH BORROWER" and in its capacity as the borrower of euro hereunder, the
"EURO BORROWER"), the several banks and other financial institutions from time
to time parties to this agreement (the "LENDERS"), BANK OF AMERICA NT & SA, as
syndication agent for the Lenders (in such capacity, the "SYNDICATION AGENT"),
CHASE MANHATTAN INTERNATIONAL LIMITED, as administrative agent for the English
Lenders (in such capacity, the "ENGLISH AGENT") and as administrative agent for
the Euro Lenders (in such capacity, the "EURO AGENT") and THE CHASE MANHATTAN
BANK, a New York banking corporation ("CHASE"), as administrative agent for the
Lenders (in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, pursuant to the Recapitalization Agreement, dated as
of March 29, 1999, among the US Borrower, the stockholders parties thereto and
JLF Acquisition LLC (together with any of its assignees in accordance with the
Recapitalization Agreement, the "BUYER"), the Buyer has agreed to acquire (the
"ACQUISITION") at least 80% of the outstanding common stock of the US Borrower;
WHEREAS, the Borrowers have requested that the Lenders provide
the credit facilities described herein to respective Borrowers in order to (i)
finance the Acquisition, (ii) refinance substantially all existing indebtedness
of the US Borrower and its Subsidiaries (the "REFINANCING"; and together with
the Acquisition and the other transactions in connection therewith, the
"TRANSACTIONS"), (iii) pay certain premiums, fees and expenses related to the
Transactions, and (iv) finance the working capital needs and other general
corporate purposes (including Permitted Acquisitions) of the Borrowers and their
respective Subsidiaries on the terms herein; and
WHEREAS, the Lenders are willing to provide such credit
facilities to the Borrowers, but only upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"ACCOMMODATIONS": the collective reference to the Letters of
Credit (including, without limitation, the Bank Guarantee Letters of
Credit) and bankers acceptances issued or created for the accounts of
the Specified Borrowers by the Specified Agents in accordance with the
terms hereof pursuant to the Accommodation Commitments.
"ACCOMMODATION COMMITMENT": (a) as to any Specified Issuing
Lender, its obligation to issue or accept Accommodations for the
account of the Specified Borrower as identified in the Administrative
Schedule and (b) as to any Specified Participating Lender, its
unconditional obligation to participate in Accommodations of such
Specified Borrower.
"ACCOMMODATION OBLIGATION": in respect of any Specified
Borrower, the obligation of such Specified Borrower to reimburse the
Specified Issuing Lender in accordance with the terms of this Agreement
and any related Letter of Credit Application for any payment made or
honored by such Specified Issuing Lender under any Accommodation.
"ACCOMMODATION OUTSTANDINGS": as to any Specified Borrower, at
any date, the sum of (a) the aggregate amount then available to be
drawn or the amount issued under all outstanding Specified
Accommodations and (b) the aggregate amount of drawings or payments
under Specified Accommodations which have not then been reimbursed
pursuant to subsection 3.5.
"ACCOMMODATION PARTICIPATING INTEREST": with respect to any
Accommodation, (a) in the case of the Specified Issuing Lender with
respect thereto, its interest in such Accommodation after giving effect
to the granting of participating interests therein, if any, pursuant
hereto and (b) in the case of each Specified Participating Lender, its
undivided participating interest in such Accommodation relating
thereto.
"ADMINISTRATIVE AGENT": as defined in the preamble hereto.
"ADMINISTRATIVE SCHEDULE": the Administrative Schedule
attached hereto, as amended, supplemented or otherwise modified from
time to time.
"AFFECTED EUROCURRENCY LOANS": as defined in subsection
2.9(h).
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether by contract or
otherwise.
"AGENTS": the collective reference to the Administrative
Agent, the Collateral Agent, the Syndication Agent, the English Agent
and the Euro Agent.
"AGREEMENT": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"APPLICABLE MARGIN": for each Type of Loan and for purposes of
subsection 2.3, the rate per annum set forth under the relevant column
heading below:
BASE RATE LOANS
TYPES APPLICABLE MARGIN
----- -----------------
US Tranche A Term Loans 1.50%
US Tranche B Term Loans 1.75%
English Term Loans and US Sterling Term Loans 1.50%
Revolving Credit Loans 1.50%
(including Swing Line Loans)
EUROCURRENCY LOANS AND B/AS
TYPE APPLICABLE MARGIN
----- -----------------
US Tranche A Term Loans 2.50%
US Tranche B Term Loans 2.75%
English Term Loans and US Sterling Term Loans 2.50%
Revolving Credit Loans 2.50%
(including Letters of Credit and
Accommodations)
COMMITMENT FEE APPLICABLE MARGIN
-------------- -----------------
0.50%
; PROVIDED that (i) in the event that the Leverage Ratio, as most
recently determined in accordance with subsection 8.1(b), is as set
forth in the relevant column heading below for any quarterly period and
so long as no Event of Default has occurred and is then continuing, any
such Applicable Margin with respect to US Tranche A Term Loans, English
Term Loans, US Sterling Term Loans and Revolving Credit Loans
(including Swing Line Loans) and Commitment Fee shall be as provided in
the relevant column heading below but in no event shall any such
reductions be effective prior to September 30, 1999:
Applicable
Margin For Applicable Applicable
Eurocurrency Margin for Margin for
LEVERAGE RATIO Loans or B/As Base Rate Loans Commitment Fee
-------------- ------------- --------------- ---------------
greater than 4.50 to 1.00 2.50% 1.50% 0.50%
less than or equal to 4.50 to 2.25% 1.25% 0.50%
1.00, but greater than 4.00 to
1.00
less than or equal to 4.00 to 2.00% 1.00% 0.50%
1.00, but greater than 3.50 to
1.00
less than or equal to 3.50 to 1.75% 0.75% 0.375%
1.00, but greater than 3.00 to
1.00
less than or equal to 3.00 to 1.50% 0.50% 0.30%
1.00
if and in the event the financial statements required to be delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the related
compliance certificate required to be delivered pursuant to subsection
7.2(b), are delivered on or prior to the date when due (or, in the case
of the fourth quarterly period of each fiscal year of the US Borrower,
if financial statements which satisfy the requirements of, and are
delivered within the time period specified in, subsection 7.l(b) and a
related compliance certificate which satisfies the requirements of, and
is delivered within the time period specified in, subsection 7.2(b),
with respect to any such quarterly period are so delivered within such
time periods), then the Applicable Margin in respect of the Revolving
Credit Loans, the English Term Loans, the US Sterling Term Loans and
the US Tranche A Term Loans and the Commitment Fee during the period
from the date upon which such financial statements were delivered shall
be the Applicable Margin as set forth in the relevant column heading
above; PROVIDED, HOWEVER, that in the event that the financial
statements delivered pursuant to subsection 7.1(a) or 7.1(b), as
applicable, and the related compliance certificate required to be
delivered pursuant to subsection 7.2(b), are not delivered when due,
then:
(a) if such financial statements and certificate are
delivered after the date such financial statements and
certificate were required to be delivered (without giving
effect to any applicable cure period) and the Applicable
Margin increases from that previously in effect as a result of
the delivery of such financial statements, then the Applicable
Margin in respect of Revolving Credit Loans (including in the
case of Base Rate Loans, Swing Line Loans), the English Term
Loans, the US Sterling Term Loans and US Tranche A Term Loans
and the Commitment Fee during the period from the date upon
which such financial statements were required to be delivered
(without
giving effect to any applicable cure period) until the date
upon which they actually are delivered shall, except as
otherwise provided in clause (c) below, be the Applicable
Margin as so increased;
(b) if such financial statements and certificate are
delivered after the date such financial statements and
certificate were required to be delivered and the Applicable
Margin decreases from that previously in effect as a result of
the delivery of such financial statements, then such decrease
in the Applicable Margin shall not become applicable until the
date upon which the financial statements and certificate
actually are delivered; and
(c) if such financial statements and certificate are
not delivered prior to the expiration of the applicable cure
period, then, effective upon such expiration, for the period
from the date upon which such financial statements and
certificate were required to be delivered (after the
expiration of the applicable cure period) until the date upon
which they actually are delivered, the Applicable Margin in
respect of Revolving Credit Loans (including in the case of
Base Rate Loans, Swing Line Loans), English Term Loans, the US
Sterling Term Loans and US Tranche A Term Loans shall be
2.50%, in the case of Eurocurrency Loans, and 1.50%, in the
case of Base Rate Loans, and 0.50%, in the case of Commitment
Fees payable under subsection 2.3 (it being understood that
the foregoing shall not limit the rights of each of the Agents
and the Lenders set forth in Section 9).
"ASSET SALE": any sale, transfer or other disposition
(including any sale and leaseback of assets) by the US Borrower or any
of its Subsidiaries of any property of the US Borrower or any such
Subsidiary (including property subject to any Lien under any Loan
Document), other than as permitted pursuant to (w) subsections 8.6(a)
through (c), (x) subsection 8.6(d) to the extent Net Cash Proceeds from
such sale or transfer does not exceed the Equivalent Amount of
$2,500,000 in any fiscal year and (y) subsections 8.6(e) through (j).
"ASSET SALE PREPAYMENT PERCENTAGE": 100%; PROVIDED, that in
the event that the Leverage Ratio as most recently determined in
accordance with subsection 8.1(b) is less than or equal to 3.50 to
1.00, then the Asset Sale Prepayment Percentage shall be 0%.
"ASSIGNEE": as defined in subsection 12.6(c).
"ASSIGNMENT AND ACCEPTANCE": an assignment and acceptance
entered into by a Lender and an assignee, substantially in the form of
Exhibit D.
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Specified
Revolving Credit Lender, with respect to any Specified Borrower at any
time, an amount equal to the excess, if any, of (a) the amount of such
Specified Revolving Credit Lender's Specified Revolving Credit
Commitment OVER (b) the sum of (i) the aggregate unpaid principal
amount at such time of all Specified Revolving Credit Loans made by
such Specified Revolving Credit Lender to such Specified Borrower, (ii)
an amount equal to such Specified Revolving Credit Lender's Specified
Revolving Credit Commitment Percentage of the aggregate unpaid
principal amount at such
time of all Specified Swing Line Loans of the Specified Borrower (which
for purposes of subsection 2.3 shall be deemed to be zero), and (iii)
an amount equal to such Specified Revolving Credit Lender's Specified
Revolving Credit Commitment Percentage of the Specified Accommodation
Outstandings of the Specified Lender at such time; collectively, as to
all the Specified Revolving Credit Lenders, the "AVAILABLE REVOLVING
CREDIT COMMITMENTS."
"BANK GUARANTEE LETTERS OF CREDIT": Standby Letters of Credit
issued by the English Issuing Lender in favor of the Guarantor in
respect of the Guaranteed Loan Notes in an aggregate amount not to
exceed (pound)17,823,330.80 and maturing January 13, 2003.
"BASE CAPEX AMOUNT": as defined in subsection 8.8(a).
"BASE RATE": as to any Specified Borrower in any Specified
currency, the interest rate identified as the Base Rate therefor in the
Administrative Schedule.
"BASE RATE LOAN": any Loan bearing interest by reference to
the applicable Base Rate.
"BASE RATE PAYMENT DATE": as to any Specified Borrower, the
Specified Interest Payment Date for the Specified Base Rate Loans set
forth in the Administrative Schedule.
"BENEFITTED SPECIFIED LENDER": as defined in subsection 12.7.
"BOARD": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"BORROWER PERCENTAGE": with respect to any Specified Borrower,
at any date of determination, the percentage of the Term Loans at such
date constituted by the Specified Term Loans of such Specified Borrower
at such time.
"BORROWERS": the collective reference to the US Borrower, the
Foreign Subsidiary Borrowers and, with respect to the Bank Guarantee
Letters of Credit only, English Bidco.
"BORROWING DATE": any Business Day specified in a notice
pursuant to subsection 2.2, 2.6 or 2.12 as a date on which the
Specified Borrower requests the Specified Lenders to make Specified
Loans hereunder.
"BUSINESS DAY": as to any Borrower, a day other than a
Saturday, Sunday or other day on which commercial banks in the city in
which the principal office of the Specified Agent is located are
authorized or required by law to close, PROVIDED that when used in
connection with a Eurocurrency Loan, the term "Business Day" shall also
exclude any day on which commercial banks are not open for dealing in
deposits in the London interbank market in the applicable currency,
PROVIDED further, that when such term is used for the purpose of
determining the date on which the Eurocurrency Base Rate is determined
under this Agreement for any Loan denominated in euro for any Interest
Period therefor and for purposes of determining the first and last day
of any Interest Period, references in this Agreement to Business Days
shall be deemed to be references to Target Operating Days, PROVIDED
further, that with respect to any day on which any payments are to be
made under this Agreement in a particular currency, the term Business
Day shall also exclude a day on which commercial banks in the principal
financial center of the country of the applicable currency are located
are authorized or required by law to close.
"BUYER": as defined in the recitals hereto.
"CAPEX ROLLOVER": as defined in subsection 8.8(a).
"CAPITAL EXPENDITURES": expenditures (including, without
limitation, obligations created under Financing Leases and purchase
money Indebtedness in the year in which created but excluding payments
made thereon) of the US Borrower and its Subsidiaries in respect of the
purchase or other acquisition of fixed or capital assets (excluding any
such asset acquired (w) in connection with ordinary (in the reasonable
judgment of the US Borrower consistent with past practice) replacement
and maintenance programs properly expensed in accordance with GAAP, (x)
with the proceeds of any casualty insurance or condemnation award, (y)
with the cash proceeds of any asset sale made pursuant to subsections
8.6(c), applied within twelve (12) months from receipt of such proceeds
and (z) in any Permitted Acquisition).
"CAPITAL STOCK": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"CASH EQUIVALENTS": as to any currency, the investments set
forth on the Administrative Schedule for such currency.
"CHANGE OF CONTROL": either (a) J2R Partners III and Onex
Corporation (acting directly or through any Wholly Owned Subsidiary of
Onex Corporation which owns Capital Stock of the US Borrower) shall
cease to have the power, directly or indirectly, to vote or direct the
voting of securities having 51% of the voting power for the election of
directors of the US Borrower, PROVIDED that after the consummation of
an Initial Public Offering, the occurrence of the foregoing event shall
not be deemed a Change of Control if at any time and for any reason
whatever, (y) no "Person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), excluding J2R Partners III and Onex Corporation (acting
directly or through any Wholly Owned Subsidiary of Onex
Corporation which owns Capital Stock of the US Borrower), shall become
the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
such Act), directly or indirectly, of more than the lesser of (A) 30%
of the shares outstanding or (B) the percentage of the then outstanding
voting stock of the US Borrower owned by J2R Partners III and Onex
Corporation (acting directly or through any Wholly Owned Subsidiary of
Onex Corporation which owns Capital Stock of the US Borrower), and (z)
the board of the US Borrower shall consist of a majority of
Continuing Directors, or (b) a Change of Control as defined in any
Subordinated Debt Document.
"CHASE": as defined in the preamble hereto.
"CLOSING DATE": the date of the satisfaction or waiver of all
conditions precedent in subsection 6.1.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated thereunder.
"COLLATERAL AGENT": Chase in its capacity as collateral agent
for the Secured Parties under the Loan Documents and the Sharing
Agreement.
"COMMITMENTS": the collective reference to the Revolving
Credit Commitments, the Swing Line Commitments and the Accommodation
Commitments; individually, a "COMMITMENT."
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the US Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the US Borrower and which is treated as a single employer
under Section 414 of the Code.
"CONSOLIDATED CURRENT ASSETS": at any date, the amount which,
in conformity with GAAP, would be set forth opposite the caption "Total
Current Assets" (or any like caption) on a consolidated balance sheet
of the US Borrower and its Subsidiaries at such date, except that there
shall be excluded therefrom cash and Cash Equivalents and equipment and
other fixed assets held for sale and deferred income taxes to the
extent otherwise included therein.
"CONSOLIDATED CURRENT LIABILITIES": at any date, the amount
which, in conformity with GAAP, would be set forth opposite the caption
"Total Current Liabilities" (or any like caption) on a consolidated
balance sheet of the US Borrower and its Subsidiaries at such date,
except that there shall be excluded therefrom the current portion of
(a) all Loans, (b) all long-term Indebtedness for borrowed money
(including Financing Leases) and (c) deferred income taxes, in each
case, to the extent included therein.
"CONSOLIDATED EBITDA": for any period, with respect to any
Person, Consolidated Net Income of such Person for such period (A)
PLUS, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum
of (i) total income and franchise tax expense (including, without
duplication, foreign withholding taxes and any state single business,
unitary or similar taxes), (ii) interest expense, amortization or
writeoff of debt discount and debt issuance costs and commissions and
discounts and other fees and charges associated with Indebtedness
(including customary payments made to obtain Interest Rate Agreements),
(iii) depreciation and amortization expense, (iv) amortization of
intangibles (including, but not limited to, goodwill and organization
costs), (v) other noncash charges (including any
writeoffs of purchased technology and stock-related compensation
expense), (vi) any extraordinary and unusual losses (including losses
on sales of assets other than inventory sold in the ordinary course of
business) other than any loss from any discontinued operation, and
(vii) non-recurring fees and expenses in connection with the
Transactions in an aggregate amount not to exceed $25,000,000, and (B)
MINUS, without duplication, (i) any extraordinary and unusual gains
(including gains on the sales of assets, other than inventory sold in
the ordinary course of business) other than any income from
discontinued operations and (ii) noncash gains included in Consolidated
Net Income.
"CONSOLIDATED NET INCOME": for any period, with respect to any
Person, the amount which, in conformity with GAAP, would be set forth
opposite the caption "Net Income/(Loss)" (or any like caption) on a
consolidated statement of operations of such Person and its
Subsidiaries for such period.
"CONSOLIDATED SENIOR DEBT": at any date, with respect to the
US Borrower, the aggregate principal amount of Indebtedness under this
Agreement.
"CONSOLIDATED TOTAL ASSETS": at any date, the amount which, in
conformity with GAAP, would be set forth opposite the caption "Total
Assets" (or any like caption) on a consolidated balance sheet of the US
Borrower and its Subsidiaries at such date, except that there shall be
excluded therefrom cash and Cash Equivalents and equipment and other
fixed assets held for sale.
"CONSOLIDATED TOTAL DEBT": without duplication, at any date,
with respect to the US Borrower, the aggregate principal amount of (a)
Indebtedness under this Agreement, (b) Financing Leases, (c) purchase
money Indebtedness (including, without limitation, seller financing),
(d) the Interim Loans, (e) the Exchange Notes, (f) the Senior
Subordinated Notes and (g) any other Indebtedness for borrowed money of
the US Borrower and its Subsidiaries at such date on a consolidated
basis in conformity with GAAP.
"CONSOLIDATED WORKING CAPITAL": at any date, the excess of
Consolidated Current Assets at such date over Consolidated Current
Liabilities at such date.
"CONTINUING DIRECTORS": the directors of the US Borrower on
the Closing Date and each other director, if, in each case, such other
director's election or nomination for election to the board of
directors of the US Borrower was approved by a majority of the then
Continuing Directors or such other director is nominated for election
or is elected to the board of directors with the affirmative vote of
J2R Partners III and Onex Corporation (acting directly or through any
Wholly Owned Subsidiary of Onex Corporation which owns Capital Stock of
the US Borrower).
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"CREDIT PARTIES": the collective reference to each of the
Borrowers and each of their respective Subsidiaries which from time to
time is a party to (or, in the case
of the English Subsidiaries of the US Borrower, is required to become
a party to) any Loan Document.
"CSI": Chase Securities Inc.
"CUSTOMERS": those customers and prospective customers of the
Borrowers and their subsidiaries identified as such from time to time
by the US Borrower to the Administrative Agent in writing and
acknowledged as such by the Administrative Agent.
"DEBT PREPAYMENT PERCENTAGE": 100%.
"DEFAULT": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"DENOMINATED CURRENCY": as defined in subsection 12.11.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"DOMESTIC OBLIGATIONS": the unpaid principal of and interest
on (including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to any Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the US Borrower
to the Secured Parties, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any Notes, the Guarantee and Collateral Agreement, or the
other Loan Documents, or any Interest Rate Agreement entered into with
a Lender or any of its Affiliates and any other document made,
delivered or given in connection therewith or herewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all
reasonable fees and disbursements of counsel to the Secured Parties
that are required to be paid by the US Borrower pursuant to the terms
of this Agreement) or otherwise.
"DOMESTIC SUBSIDIARY": as to any Person, any Subsidiary of
such Person other than a Foreign Subsidiary of such Person.
"ECF PREPAYMENT PERCENTAGE": 50%; PROVIDED, that in the event
that the Leverage Ratio as determined in accordance with subsection
8.1(b) as of the last day of any fiscal year is less than or equal to
3.50 to 1.00, then the ECF Prepayment Percentage for such fiscal year
shall be 0%.
"EMU LEGISLATION": legislative measures of the European Union
for the introduction of, changeover to or operation of the euro in one
or more member states.
"ENGLISH ACCOMMODATIONS": the collective reference to (a)
Accommodations issued by the English Issuing Lender for the account of
the English Borrower and (b) the Bank Guarantee Letters of Credit.
"ENGLISH AGENT": as defined in the preamble hereto.
"ENGLISH BIDCO": as defined in the preamble hereto.
"ENGLISH BORROWER": as defined in the preamble hereto.
"ENGLISH ISSUING LENDER": Chase, acting through its London
Branch.
"ENGLISH LENDERS": the collective reference to Lenders holding
English Loans or English Revolving Credit Commitments.
"ENGLISH LOANS": any loan made to the English Borrower by any
English Lender pursuant to this Agreement.
"ENGLISH OBLIGATIONS": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the English Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the English Borrower or
English Bidco, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the English Loans and all other
obligations and liabilities of the English Borrower or English Bidco to
the English Issuing Lender, the English Agent, or the English Lenders,
whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any notes thereunder or the
other Specified Loan Documents, any Interest Rate Agreement entered
into with an English Lender or any of its Affiliates, or any
obligations of English Bidco in respect of the Bank Guarantee Letters
of Credit and any other document made, delivered or given in connection
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all reasonable fees and disbursements of counsel to the
English Agent or to the English Lenders that are required to be paid by
the English Borrower or the English Bidco pursuant to the terms of this
Agreement) or otherwise.
"ENGLISH REVOLVING CREDIT COMMITMENT": as to any English
Lender, its obligation to make English Revolving Credit Loans to the
English Borrower pursuant to subsection 2.1 and to participate in
English Accommodations in an aggregate Equivalent Amount not to exceed
at any one time outstanding the sum of (x) the amount set forth
opposite such English Lender's name in Schedule 1.1 under the heading
"English Revolving Credit Commitment", as such amount may be reduced
from time to time as provided herein and (y) such English Lender's
English Revolving Credit Commitment Percentage of the Bank Guarantee
Letters of Credit; collectively, as to all the English Lenders, the
"ENGLISH REVOLVING CREDIT COMMITMENTS."
"ENGLISH REVOLVING CREDIT LENDER": any English Lender having
an English Revolving Credit Commitment or that holds outstanding
English Revolving Credit Loans or Specified Accommodation Participating
Interests hereunder.
"ENGLISH REVOLVING CREDIT LOANS": as to the English Borrower,
any revolving credit loans made to such Borrower by the English
Revolving Credit Lenders pursuant to subsection 2.1(a).
"ENGLISH SWING LINE LENDER": any English Lender having a Swing
Line Commitment or that holds outstanding Swing Line Loans.
"ENGLISH TERM LOANS": as to the English Borrower, any term
loans made to such Borrower by the English Term Loan Lenders pursuant
to subsection 2.5(d).
"ENGLISH TERM LOAN LENDERS": as to the English Borrower, any
Lenders holding outstanding English Term Loans.
"ENVIRONMENTAL LAWS": any applicable foreign, federal, state,
provincial, local, or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, legally binding requirements of
any Governmental Authority or other Requirements of Law (including
common law) regulating, relating to or imposing liability or standards
of conduct concerning protection of human health or the environment, as
now or may at any time hereafter be in effect.
"EQUITY PREPAYMENT PERCENTAGE": 50%; PROVIDED, that in the
event that the Leverage Ratio as most recently determined in accordance
with subsection 8.1(b) is less than or equal to 3.50 to 1.00, then the
Equity Prepayment Percentage shall be 0%.
"EQUIVALENT AMOUNT": at any time of determination, with
respect to any amount in any currency denominated in a different
currency, the amount at which such amount of different currency could
be converted into the determination currency at such time as reasonably
determined by the Specified Agent.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time and the regulations promulgated and
rulings issued thereunder.
"EURO": the single currency of the participating member states
in the Third Stage.
"EURO AGENT": as defined in the preamble hereto.
"EURO BORROWER": as defined in the preamble hereto.
"EURO LENDERS": the collective reference to Lenders holding
Euro Loans or Euro Revolving Credit Commitments.
"EURO LOANS": any loan made to the Euro Borrower by any Euro
Lender pursuant to this Agreement.
"EURO OBLIGATIONS": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Euro Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Euro Borrower, whether or not a claim
for post-filing or post-petition interest is allowed in such
proceeding) the Euro Loans and all other obligations and liabilities of
the Euro Borrower to the Euro Issuing Lender, the Euro Agent, or the
Euro Lenders, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, any notes
thereunder or the other Specified Loan Documents, any Interest Rate
Agreement entered into with a Euro Lender or any of its Affiliates, and
any other document made, delivered or given in connection therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
reasonable fees and disbursements of counsel to the Euro Agent or to
the Euro Lenders that are required to be paid by the Euro Borrower
pursuant to the terms of this Agreement) or otherwise.
"EURO REVOLVING CREDIT COMMITMENT": as to any Euro Lender, its
obligation to make Euro Revolving Credit Loans to the Euro Borrower
pursuant to subsection 2.1 in an aggregate Equivalent Amount not to
exceed at any one time outstanding the amount set forth opposite such
Euro Lender's name in Schedule 1.1 under the heading "Euro Revolving
Credit Commitment", as such amount may be reduced from time to time as
provided herein; collectively, as to all the Euro Lenders, the "EURO
REVOLVING CREDIT COMMITMENTS."
"EURO REVOLVING CREDIT LENDER": any Euro Lender having a Euro
Revolving Credit Commitment or that holds outstanding Euro Revolving
Credit Loans or Specified Accommodation Participating Interests
hereunder.
"EURO REVOLVING CREDIT LOANS": as to the Euro Borrower, any
revolving credit loans made to such Borrower by the Euro Revolving
Credit Lenders pursuant to subsection 2.1(a).
"EURO UNIT": the currency unit of the euro as defined in the
EMU Legislation.
"EUROCURRENCY BASE RATE": as to any Specified Borrower in any
Specified currency, the interest rate identified as the Eurocurrency
Base Rate therefor in the Administrative Schedule.
"EUROCURRENCY RATE": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
EUROCURRENCY BASE RATE
1.00 - Eurocurrency Reserve Requirements
"EUROCURRENCY LOAN": any Loan bearing interest by reference to
the applicable Eurocurrency Rate.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to
any Eurocurrency Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements
in effect on such day (including, without limitation, basic,
supplemental, marginal, and emergency reserves) under any regulations
of any applicable Governmental Authority for the Specified Lender
dealing with reserve requirements prescribed for eurocurrency funding
(in the case of the US Borrower, currently referred to as "EUROCURRENCY
LIABILITIES" in Regulation D of the Board).
"EVENT OF DEFAULT": any of the events specified in Section 9,
PROVIDED that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"EXCESS CASH FLOW": for any fiscal year of the US Borrower,
the excess of (a) the sum, without duplication, of (i) Consolidated
EBITDA for such fiscal year, (ii) the amount of returned surplus assets
(net of cash costs associated therewith, including income, excise and
other taxes payable thereon) of any Plan during such fiscal year to the
extent not included in Consolidated Net Income to determine
Consolidated EBITDA for such fiscal year (other than any return of
amounts representing overestimates of amounts due under any Plan
(domestic or foreign)), (iii) decreases in Consolidated Working Capital
of the US Borrower and its Subsidiaries for such fiscal year, (iv) cash
dividends, cash interest and other similar cash
payments (other than intercompany items) received by the US Borrower in
respect of investments to the extent not included in Consolidated Net
Income to determine Consolidated EBITDA for such fiscal year and (v)
any purchase price adjustments resulting in a payment to the US
Borrower or any of its Subsidiaries in connection with a Permitted
Acquisition permitted hereunder, over (b) the sum, without duplication,
of (i) the aggregate amount of cash Capital Expenditures (including
with respect to any CapEx Rollover) made by the US Borrower and its
Subsidiaries during such fiscal year and permitted hereunder or
committed in such fiscal year to be made in the subsequent fiscal year,
PROVIDED THAT, the Excess Cash Flow of any subsequent year shall not be
reduced by the amount of such commitments, (ii) any purchase price
adjustments resulting in a payment by the US Borrower or any of its
Subsidiaries in connection with a Permitted Acquisition permitted
hereunder, (iii) the aggregate amount of all reductions of the
Revolving Credit Commitments or payments or prepayments of the Term
Loans during such fiscal year other than pursuant to subsection 2.9(a),
(b) or (c), (iv) the aggregate amount of payments of principal in
respect of any Indebtedness permitted hereunder during such fiscal year
(other than under this Agreement), (v) increases in Consolidated
Working Capital of the US Borrower and its Subsidiaries for such fiscal
year, (vi) cash interest expense of the US Borrower and its
Subsidiaries for such fiscal year, (vii) taxes actually paid in such
fiscal year or to be paid in the subsequent fiscal year on account of
such fiscal year to the extent added to Consolidated Net Income to
determine Consolidated EBITDA for such fiscal year, (viii)
extraordinary cash losses to the extent added to Consolidated Net
Income to determine Consolidated EBITDA for such fiscal year, (ix) the
amount of all
Investments made in such fiscal year as permitted by clauses (d), (h),
(j), and, to the extent such Investments are financed by cash from
business operations of the US Borrower and its Subsidiaries, (k) of
subsection 8.9 and (x) cash payments made during such fiscal year with
respect to noncurrent liabilities, PROVIDED that (x) increases or
decreases in Consolidated Working Capital resulting from any
acquisition shall be excluded from the calculation of Excess Cash Flow
and (y) net income of any Foreign Subsidiary of the US Borrower which
is not a Credit Party will only be included to the extent distributed
to a Credit Party. Notwithstanding the foregoing, all payments made and
received in connection with the Transactions shall be excluded from the
calculation of Excess Cash Flow.
"EXCHANGE NOTE INDENTURE": any indenture to be entered into
pursuant to Section 2.3 of the Interim Loan Agreement among the US
Borrower, as issuer, certain of its Subsidiaries, as guarantors, and
the trustee named therein, together with all instruments and other
agreements entered into by the US Borrower and its Subsidiaries in
connection therewith, all as entered into in accordance with subsection
8.10(e) and as the same may be amended, supplemented or otherwise
modified in accordance with subsection 8.10.
"EXCHANGE NOTES": the senior subordinated exchange notes of
the US Borrower to be issued in exchange for the Interim Loans pursuant
to Section 2.3 of the Interim Loan Agreement.
"EXPENDITURE USE AMOUNTS": at any date, the amount equal to
the sum of (a) all amounts utilized by Subsidiaries of the US Borrower
to finance Capital Expenditures, other than Capital Expenditures which
are not in excess of the Base CapEx Amount for the relevant fiscal year
and any CapEx Rollover to such fiscal year and (b) all amounts utilized
by the US Borrower and its Subsidiaries to finance investments
permitted pursuant to subsection 8.9(k), except to the extent that the
consideration for all such investments made since the Closing Date does
not exceed the aggregate of the amounts set forth in clauses (A), (B),
(C) and (D) thereof.
"FEE PROPERTIES": the collective reference to the real
properties owned in fee by the US Borrower and its Subsidiaries
described on Part I of Schedule 5.19, including all buildings,
improvements, structures, and fixtures now or subsequently located
thereon.
"FINANCING LEASE": any lease of property, real or personal,
the obligations of the lessee in respect of which are required to be
capitalized on a balance sheet of the lessee in accordance with GAAP.
"FOREIGN SUBSIDIARY": as to any Person, any Subsidiary of such
Person which is organized under the laws of any jurisdiction outside of
the United States of America.
"FOREIGN SUBSIDIARY ACCOMMODATIONS": any Accommodation issued
for the account of any Foreign Subsidiary Borrower by the Specified
Issuing Lender.
"FOREIGN SUBSIDIARY AGENTS": the collective reference to the
English Agent and the Euro Agent.
"FOREIGN SUBSIDIARY BORROWERS": the collective reference to
the English Borrower and the Euro Borrower.
"FOREIGN SUBSIDIARY LENDERS": the collective reference to the
English Lenders and the Euro Lenders.
"FOREIGN SUBSIDIARY OBLIGATIONS": the collective reference to
the English Obligations and the Euro Obligations.
"FOREIGN SUBSIDIARY REVOLVING CREDIT COMMITMENTS": the
collective reference to the English Revolving Credit Commitments and
the Euro Revolving Credit Commitments.
"FOREIGN SUBSIDIARY REVOLVING CREDIT LENDERS": the collective
reference to the English Revolving Credit Lenders and the Euro
Revolving Credit Lenders.
"FOREIGN SUBSIDIARY REVOLVING CREDIT LOANS": the collective
reference to the English Revolving Credit Loans and the Euro Revolving
Credit Loans.
"GAAP": the generally accepted accounting principles in the
United States of America (or, in the case of financial statements for
any period prior to the date it became a Foreign Subsidiary Borrower,
any Foreign Subsidiary Borrower and its Subsidiaries and in the case of
subsections 7.3, 8.3(b), 5.1(b), and 5.10, in the country of
organization of such Foreign Subsidiary Borrower) as in effect from
time to time set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board (or in the case of a Foreign
Subsidiary Borrower, for any period prior to the date it became a
Foreign Subsidiary Borrower and in the case of subsections 7.3, 8.3(b),
5.1(b) and (c), and 5.10, the applicable authority in such country of
organization of such Foreign Subsidiary Borrower), or in such other
statements by such other entity as may be in general use by significant
segments of the accounting profession, which are applicable to the
circumstances of the US Borrower as of the date of determination except
that for purposes of subsection 8.1, GAAP shall be determined on the
basis of such principles in effect on the date hereof and consistent
with those used in the preparation of the financial statements referred
to in subsections 5.1(a) and (b), as the case may be. In the event that
any "Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrowers and
the Administrative Agent agree to enter into negotiations in order to
amend such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for
evaluating the US Borrowers' financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not
been made. Until such time as such an amendment shall have been
executed and delivered by the Borrowers, the Administrative Agent and
the Required Lenders, all financial covenants, standards and terms in
this
Agreement shall continue to be calculated or construed as if such
Accounting Changes had not occurred. "ACCOUNTING CHANGES" means:
changes in accounting principles required by the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions).
"GOVERNMENTAL AUTHORITY": any nation or government, any state,
province, municipality, or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"GUARANTEE AND COLLATERAL AGREEMENT": the Guarantee and
Collateral Agreement, made by the US Borrower and its Domestic
Subsidiaries in favor of the Collateral Agent for the ratable benefit
of the Secured Parties, substantially in the form of Exhibit G-1, as
the same may be amended, supplemented or otherwise modified from time
to time.
"GUARANTEED LOAN NOTE INSTRUMENTS": the Deed Polls
constituting the Guaranteed Unsecured Floating Rate Loan Notes due 2003
Series A, Series B, Series C and Series D, and the relevant Deed Polls
constituting the guarantees granted by the Guarantor in relation
thereto, dated January 26, 1998, February 4, 1998, February 16, 1998
and February 25, 1998, respectively, as amended, supplemented or
otherwise modified from time to time.
"GUARANTEED LOAN NOTES": loan notes of English Bidco issued
pursuant to the offer for the outstanding capital stock of the English
Borrower at the election of holders of such capital stock having the
terms contained in the Guaranteed Loan Note Instruments and guaranteed
by Guarantor.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
PERSON"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "PRIMARY OBLIGATIONS") of
any other third Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; PROVIDED, HOWEVER, that
the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability (assuming such Person is required to perform) in respect
thereof as determined by such Person in good faith.
"GUARANTOR": Barclays Bank PLC.
"HIDDEN CREEK": Hidden Creek Industries, a New York general
partnership.
"INDEBTEDNESS": of any Person at any date, without duplication
(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices and accrued expenses
incurred in the ordinary course of business) or which is evidenced by a
note, bond, debenture or similar instrument, (b) all net obligations of
such Person under Interest Rate Agreements, (c) all obligations of such
Person under Financing Leases to the extent such obligations are
required to be capitalized in accordance with GAAP, (d) all obligations
of such Person in respect of letters of credit, bankers' acceptances or
similar instruments issued or created for the account of such Person,
and (e) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become
liable for the payment thereof; provided however, that the amount of
such Indebtedness of any Person described in this clause (e) shall, for
purposes of this Agreement, be deemed to be equal to the lesser of (i)
the aggregate unpaid amount of such Indebtedness and (ii) the fair
market value of the property or asset encumbered, as determined by such
Person in good faith.
"INITIAL PUBLIC OFFERING": means an underwritten public
offering of common stock of the US Borrower pursuant to a registration
statement filed with the Securities and Exchange Commission in
accordance with the Securities Act of 1933, as amended.
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": as defined in subsection 5.9.
"INTERCOMPANY NOTE": a promissory note made by a Subsidiary of
the US Borrower in favor of a Credit Party, substantially in the form
of Exhibit J.
"INTEREST COVERAGE RATIO": for any period, with respect to the
US Borrower, the ratio of (a) Consolidated EBITDA to (b) consolidated
cash interest expense (including any such cash interest expense in
respect of Indebtedness under Financing Leases and purchase money
Indebtedness permitted under subsection 8.2(e)) of the US Borrower and
its Subsidiaries (such consolidated cash interest expense to include
commissions, discounts and other fees payable on account of letters of
credit and banker's acceptances but to exclude amortization of debt
discount (including discount of liabilities and reserves established
under Accounting Principles Board Opinion No. 16 as in effect on the
date hereof) and costs of debt issuance)); PROVIDED that (i) for the
four fiscal quarters ended June 30, 1999, consolidated cash interest
expense shall be deemed to be consolidated cash interest expense for
the fiscal quarter ended June 30, 1999 multiplied by 4, (ii) for the
four fiscal quarters ended September 30, 1999, consolidated cash
interest expense shall be deemed to be consolidated cash interest
expense for the two fiscal quarters ended September 30, 1999 multiplied
by 2, and (iii) for the four fiscal quarters ended December 31, 1999,
consolidated cash interest expense shall be deemed to be consolidated
cash interest expense for the three fiscal quarters ended December 31,
1999 multiplied by 4/3.
"INTEREST PAYMENT DATE": (a) as to any Base Rate Loan, the
Base Rate Payment Date set forth on the Administrative Schedule, (b) as
to any Eurocurrency Loan having an Interest Period of three (3) months
or less, the last day of such Interest Period and (c) as to any
Eurocurrency Loan having an Interest Period longer than three (3)
months, each day which is three (3) months or a whole multiple thereof,
after the first day of such Interest Period as well as the last day of
such Interest Period.
"INTEREST PERIOD": with respect to any Eurocurrency Loan:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending at the end of any Permitted
Interest Period, as selected by the Specified Borrower in its
notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and
(b) thereafter, each period commencing on the last
day of the immediately preceding Interest Period applicable to
such Eurocurrency Loan and ending at the end of any Permitted
Interest Period, as selected by the Specified Borrower by
irrevocable notice to the Specified Agent not less than three
Business Days prior to the last day of the then current
Interest Period with respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a
Eurocurrency Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar
month in which event such Interest Period shall end on the
immediately preceding Business Day;
(2) no Interest Period shall extend beyond the
Scheduled Revolving Credit Commitment Termination Date in the
case of Revolving Credit Loans or the scheduled date final
payment is due on any tranche or class of Term Loans in the
case of such tranche or class of Term Loans;
(3) no Interest Period with respect to any tranche or
class of the Term Loans shall extend beyond any date upon
which repayment of principal thereof is required to be made
if, after giving effect to the selection of such Interest
Period, the aggregate principal amount of such tranche or
class of Term Loans with Interest Periods ending after such
date would exceed the aggregate principal amount of such
tranche or class of Term Loans permitted to be outstanding
after such scheduled repayment; and
(4) any Interest Period pertaining to a Eurocurrency
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"INTEREST RATE AGREEMENT": any interest rate protection
agreement, interest rate, commodity or currency future, interest rate
option, interest rate cap or other interest rate, commodity or currency
hedge arrangement, to or under which any Lender (or any Affiliate
thereof) and the US Borrower or its Subsidiaries are parties on the
date hereof or become parties after the date hereof.
"INTERIM LOAN AGREEMENT": the Bridge Loan Agreement, dated as
of April 21, 1999, among the US Borrower and certain of its
Subsidiaries, NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC and Chase
Securities Inc., as arrangers, NationsBridge, L.L.C. and The Chase
Manhattan Bank, as co-agents and lenders, and NationsBridge, L.L.C., as
administrative agent, in connection with the Interim Loans, together
with all instruments and other agreements entered into by the US
Borrower and its Subsidiaries in connection therewith, as the same may
be amended, supplemented or otherwise modified from time to time in
accordance with subsection 8.10.
"INTERIM LOANS": the interim loans made to the US Borrower
pursuant to the Interim Loan Agreement (including rollover bridge loans
made pursuant to Section 2.2 of the Interim Loan Agreement).
"INVESTMENTS": as defined in subsection 8.9.
"ISSUING LENDERS": the collective reference to the US Issuing
Lender and the English Issuing Lender.
"JUDGMENT CONVERSION DATE": as defined in subsection 12.11(a).
"JUDGMENT CURRENCY": as defined in subsection 12.11(a).
"LEASED PROPERTIES": the collective reference to the real
properties leased by the US Borrower and its Subsidiaries described on
Part II of Schedule 5.19 including all buildings, improvements,
structures and fixtures now or subsequently located thereon.
"LENDERS": the collective reference to the US Lenders and the
Foreign Subsidiary Lenders.
"LETTER OF CREDIT": any Standby L/C or Trade L/C,
collectively, the "LETTERS OF CREDIT."
"LETTER OF CREDIT APPLICATION": with respect to (a) a Standby
L/C, a Standby L/C Application and (b) a Trade L/C, a Trade L/C
Application; collectively, the "LETTER OF CREDIT APPLICATIONS".
"LEVERAGE RATIO": at any date, the ratio of (a) Consolidated
Total Debt of the US Borrower and its Subsidiaries to (b) Consolidated
EBITDA of the US Borrower and its Subsidiaries for the period of four
consecutive fiscal quarters most recently ended.
"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LOAN DOCUMENTS": the collective reference to this Agreement,
the Notes, the Letter of Credit Applications, the Guarantee and
Collateral Agreement, the Mortgages, any other document, instrument or
agreement guaranteeing, or granting a Lien to secure any Obligations
and, as it relates to the Secured Parties only, the Sharing Agreement.
"LOANS": the collective reference to the US Loans, the English
Loans and the Euro Loans.
"MAJORITY CLASS LENDERS": as defined in subsection 12.1.
"MATERIAL ADVERSE CHANGE": any event, development, or
circumstance that has had or could reasonably be expected to have a
Material Adverse Effect.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a)
the Transactions, (b) the business, operations, property or financial
condition of the US Borrower and its Subsidiaries, taken as a whole, or
(c) the validity or enforceability of this Agreement or any of the
other Loan Documents or the rights or remedies of the Secured Parties
hereunder or thereunder.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation, friable
asbestos, polychlorinated biphenyls and ureaformaldehyde insulation.
"MATERIAL SUBSIDIARY": of any Person means, at any time, a
Subsidiary of such Person (a) having (i) at least the Equivalent Amount
of 5% of the consolidated total assets (determined as of the last day
of the most recent fiscal quarter) of the US Borrower and its
Subsidiaries or (ii) at least the Equivalent Amount of 5% of the
consolidated total revenues for the twelve month period ending on the
last day of the most recent fiscal quarter of such Person or (b) which
guarantees or is a party to any Subordinated Debt Document or a Loan
Document; PROVIDED, that, in no event may Subsidiaries which have in
the aggregate more than 10% of the consolidated total assets or 10% of
the consolidated total revenues (as so computed) of the US Borrower be
excluded from this definition and notwithstanding the foregoing each
Foreign Subsidiary Borrower shall be a Material Subsidiary.
"MORTGAGED PROPERTIES": the collective reference to the Fee
Properties owned by the US Borrower and its Subsidiaries listed on Part
IV of Schedule 5.19.
"MORTGAGES": the collective reference to the mortgages and
deeds of trust encumbering each of the Mortgaged Properties to be
executed and delivered by the US Borrower or its Domestic Subsidiaries,
substantially in the form of Exhibit G-2, with such modifications as
are determined by the Administrative Agent as necessary or desirable to
create a valid and enforceable first mortgage Lien securing the
obligations and liabilities of any Borrower or any guarantor under any
Loan Document, as the same may be amended, supplemented, replaced,
restated, or otherwise modified from time to time.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NATIONAL CURRENCY UNIT": the unit of currency (other than a
euro unit) of a Participating Member State.
"NET CASH PROCEEDS": (a) in connection with any Asset Sale
(including any sale and leaseback of assets and any sale of accounts
receivable in connection with a receivables financing transaction) or
any casualty or condemnation event the cash proceeds (including any
cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset
Sale or such casualty or condemnation event net of all reasonable legal
fees, notarial fees, accountants' fees, investment banking fees, survey
costs, title insurance premiums, required debt payments (other than
pursuant hereto) and other customary fees actually incurred in
connection therewith and net of taxes paid or reserved to be paid or
reasonably expected to be payable as a result thereof and net of
purchase price adjustments reasonably expected to be payable in
connection therewith and net of any other reserves reasonably estimated
by the US Borrower or any Subsidiary in connection with such Asset Sale
or such casualty or condemnation
event and (b) in connection with any issuance by the US Borrower or any
of its Subsidiaries of equity or debt securities or instruments or the
incurrence of loans other than Indebtedness permitted by subsection
8.2, the cash proceeds received from such issuance, net of all
reasonable investment banking fees, legal fees, notarial fees,
accountants fees, underwriting discounts and commissions and other
customary fees and expenses (including, but not limited to, filing and
printing costs), actually incurred in connection therewith; PROVIDED
HOWEVER that (y) with respect to any reserves described in clause (a)
above, any amount released from such reserves (other than for the
purpose for which it was created) shall constitute "Net Cash Proceeds"
when released and (z) with respect to any issuance of debt instruments
or securities as described in clause (b) above, only to the extent that
such net cash proceeds are used to refinance any Indebtedness permitted
by this Agreement, then such net cash proceeds shall not constitute
"Net Cash Proceeds" for the purpose of this Agreement..
"NON-EXCLUDED TAXES": as defined in subsection 4.7.
"NON-FUNDING LENDER": as defined in subsection 4.4(c).
"NOTES": the collective reference to the Revolving Credit
Notes, the Swing Line Notes, and the Term Notes.
"NOTICE TIME": as to any notice of borrowing, prepayment,
conversion or rollover by any Specified Borrower, the Specified Notice
Time set forth in the Administrative Schedule.
"OBLIGATIONS": the collective reference to the Domestic
Obligations and the Foreign Subsidiary Obligations.
"PARTICIPATING LENDER": as to any Accommodation, any Specified
Revolving Credit Lender (other than the Specified Issuing Lender) with
respect to its Specified Accommodation Participating Interest in such
Accommodation.
"PARTICIPATING MEMBER STATE": any member state which has the
euro as its lawful currency.
"PARTICIPATION CERTIFICATE": a certificate in substantially
the form of Exhibit B.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor thereto.
"PERMITTED ACQUISITION": the acquisition by the US Borrower or
a Subsidiary of the US Borrower of a business that is similar, related
or supportive to the US Borrower and its Subsidiaries' business or
those consented to by the Required Lenders.
"PERMITTED EXPENDITURE AMOUNTS": at any date, the amount equal
to (a) the sum of (i) the Net Cash Proceeds of any issuance of Capital
Stock of the US Borrower which was not required to be applied pursuant
to the provisions of
subsection 2.9(a) (other than Net Cash Proceeds of Capital Stock
described in the first parenthetical clause of subsection 2.9(a)),
(ii) the Net Cash Proceeds of any Asset Sale which was not required to
be applied pursuant to the provisions of subsection 2.9(b) and (iii)
any portion of the Excess Cash Flow of the US Borrower for fiscal
years completed since the Closing Date which was not required to be
applied pursuant to the provisions of subsection 2.9(c) MINUS (b) the
aggregate amount of Expenditure Use Amounts as of such date.
"PERMITTED INTEREST PERIOD": as to any Eurocurrency Loan, the
permitted interest period lengths set forth in the Administrative
Schedule and shall include, in any event, during any period prior to
the primary syndication of the Loans, any shorter period as may be
agreed to by the Lenders.
"PERSON": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which a Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PLEDGED SECURITIES": as defined in the Guarantee and
Collateral Agreement.
"POUNDS STERLING OR (pound)": legal currency of the United
Kingdom.
"PROCESS AGENT": as defined in subsection 12.13(f).
"PROPERTIES": as defined in subsection 5.15.
"QUALIFIED ISSUER": as defined in Section VI of the
Administrative Schedule.
"RATABLE PORTION": for each Specified Lender, the amount of
such Lender's PRO RATA portion of any applicable Specified Loan.
"RECAPITALIZATION": the transactions to be consummated
pursuant to the Recapitalization Agreement.
"RECAPITALIZATION AGREEMENT": the Recapitalization Agreement,
dated as of March 29, 1999, among the US Borrower, the stockholders
parties thereto and JLF Acquisition LLC, as amended, supplemented or
otherwise modified in accordance with subsection 8.10.
"REGULATION T, U OR X": Regulation T, U or X of the Board as
in effect from time to time.
"RELATED BUSINESS": Any business involving, ancillary to or
related to the business in which the US Borrower or any of its
Subsidiaries is engaged on the date hereof, the production of castings
or casting systems.
"RELATED FUND": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by
an affiliate of such investment advisor.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section
4043(b) of ERISA and the regulations thereunder, other than those
events as to which the thirty day notice period is waived under
subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.
"REQUIRED LENDERS": at any time, Lenders the Total Credit
Percentages of which aggregate at least a majority.
"REQUIREMENT OF LAW": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, statute, rule,
regulation, common law or determination of an arbitrator or a court or
other Governmental Authority and all official directives, consents,
approvals, authorizations, restrictions and policies of any
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"RESPONSIBLE OFFICER": as to any Person, the chief executive
officer, the president, the chief financial officer, managing or other
director, any vice president, secretary, any assistant secretary,
treasurer or any assistant treasurer of such Person.
"RESTRICTED PAYMENTS": as defined in subsection 8.7.
"REVOLVING CREDIT COMMITMENTS": the collective reference to
the US Revolving Credit Commitments and the Foreign Subsidiary
Revolving Credit Commitments.
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Specified
Revolving Credit Lender, the percentage of the aggregate Specified
Revolving Credit Commitments constituted by its Specified Revolving
Credit Commitment.
"REVOLVING CREDIT COMMITMENT PERIOD": with respect to any
Specified Borrower, the Specified Revolving Credit Commitment Period
set forth in the Administrative Schedule.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE": with respect
to any Specified Borrower, the Specified Revolving Credit Commitment
Termination Date set forth in the Administrative Schedule.
"REVOLVING CREDIT LENDERS": the collective reference to the US
Revolving Credit Lenders and the Foreign Subsidiary Revolving Credit
Lenders.
"REVOLVING CREDIT LOANS": the collective reference to the US
Revolving Credit Loans and the Foreign Subsidiary Revolving Credit
Loans.
"REVOLVING CREDIT NOTE" and "REVOLVING CREDIT NOTES": as
defined in subsection 2.7(e).
"SCHEDULED REVOLVING CREDIT COMMITMENT TERMINATION DATE":
April 21, 2005 or, if such date is not a Business Day, the Business Day
next preceding such date.
"SECURED PARTIES": the collective reference to the Collateral
Agent, the Administrative Agent, the Foreign Subsidiary Agents, and the
Lenders.
"SENIOR DEBT RATIO": at any date, the ratio of (a)
Consolidated Senior Debt of the US Borrower and its Subsidiaries to (b)
Consolidated EBITDA of the US Borrower and its Subsidiaries for the
period of four consecutive fiscal quarters most recently ended.
"SENIOR SUBORDINATED NOTE INDENTURE": the Indenture to be
entered into by the US Borrower in connection with the issuance of the
Senior Subordinated Notes, together with all instruments and other
agreements entered into by the US Borrower in connection therewith, all
as entered into in accordance with subsection 8.10(e) and as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with subsection 8.10.
"SENIOR SUBORDINATED NOTES": the subordinated notes of the US
Borrower to be issued pursuant to the Senior Subordinated Note
Indenture.
"SHARING AGREEMENT": the Sharing Agreement, among the
Collateral Agent, the Administrative Agent and the Foreign Subsidiary
Agents, substantially in the form of Exhibit I, as the same may be
amended, supplemented or otherwise modified from time to time.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"SOLVENT" and "SOLVENCY": with respect to any Person on a
particular date, that on such date, (a) the fair value of the property
(on a going concern basis) of such Person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair saleable value of the
assets (on a going concern basis) 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 is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital; PROVIDED for purposes of any Person
organized under the laws of England and Wales, the term "SOLVENT" shall
mean that with respect to such Person on a particular date, that on
such date, such Person has the ability to pay its debts as and when
they fall due and could not be deemed to be unable to pay its debts for
purposes of the Insolvency Act of 1986.
"SPECIFIED": when used in relation to any Borrower, any Loans
(or portion, type or class thereof), Accommodations, Assignee,
Commitment, Agent, Issuing Lender, Lenders (or subclass thereof),
Obligations (or portion thereof), Accommodation Outstandings and/or any
other defined term herein, the applicable Borrower and/or the Loans to,
Accommodations for the benefit of, Commitments to, Agent in respect of,
Issuing Lender in respect of, Lenders to, Obligations owing by, and
other terms relating to such Borrower or defined term, as the context
may require.
"SPECIFIED PARTICIPANT": as defined in subsection 12.6(b).
"SPECIFIED REFUNDED SWING LINE LOANS": as defined in
subsection 2.12(b).
"SPECIFIED REGISTER": as defined in subsection 12.6(d).
"STANDBY L/C": an irrevocable letter of credit issued by a
Specified Issuing Lender pursuant to this Agreement for the account of
the related Specified Borrower in respect of obligations of such
Specified Borrower incurred pursuant to contracts made or performances
undertaken or to be undertaken or like matters relating to contracts to
which such Specified Borrower is or proposes to become a party,
including, without limiting the foregoing, for insurance, trade payable
or Indebtedness support purposes.
"STANDBY L/C APPLICATION": as defined in subsection 3.2.
"SUBORDINATED DEBT DOCUMENTS": the Interim Loan Agreement, the
Exchange Note Indenture and the Senior Subordinated Note Indenture.
"SUBSEQUENT PARTICIPANT": any member state that adopts the
euro as its lawful currency after January 1, 1999.
"SUBSIDIARY": as to any Person, a corporation, partnership,
limited liability company, or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, directly or indirectly through
one or more intermediaries, or both, by such Person, including, as to
any Person incorporated in England or Wales, (A) a subsidiary within
the meaning of Section 736 of the Companies ▇▇▇ ▇▇▇▇, and (B) unless
the context otherwise requires, any Person being a subsidiary
undertaking within the meaning of Section 258 of the Companies ▇▇▇ ▇▇▇▇
AND (for all purposes of this Agreement other than the calculation of
financial condition covenants under section 8.1) the affairs and
policies of which the US Borrower or any other Subsidiary of the US
Borrower
controls or has the power to control. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the US Borrower.
"SWING LINE COMMITMENT": any Specified Swing Line Lender's
obligation to make Specified Swing Line Loans pursuant to subsection
2.12 as set forth in the Administrative Schedule.
"SWING LINE LENDERS": the collective reference to the US Swing
Line Lenders and the English Swing Line Lenders.
"SWING LINE LOAN PARTICIPATION CERTIFICATE": a certificate in
substantially the form of Exhibit C.
"SWING LINE LOANS": as to any Specified Swing Line Lender, any
swing line loans made to the Specified Borrower by such Lender.
"SWING LINE NOTE": as defined in subsection 2.7(e).
"TARGET OPERATING DAY": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System
(or any successor settlement system) is not operating (as determined by
the Euro Agent).
"TERM LOANS": the collective reference to the US Term Loans
and the English Term Loans.
"TERM LOAN LENDERS": the collective reference to the US Term
Loan Lenders and the English Term Loan Lenders.
"TERM NOTE" and "TERM NOTES": as defined in subsection 2.7(e).
"THIRD STAGE": the third stage of the European economic and
monetary union pursuant to the Treaty establishing the European
Community (as amended from time to time).
"TOTAL CREDIT PERCENTAGE": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments and
outstanding Term Loans then constituted by its Revolving Credit
Commitments and its outstanding Term Loans (or, if the Revolving Credit
Commitments have terminated or expired, the percentage of the aggregate
outstanding Loans and risk interests in the aggregate Accommodation
Outstandings and Swing Line Loans then constituted by its outstanding
Loans, and its risk interests in Accommodation Outstandings and Swing
Line Loans).
"TRADE L/C": a commercial documentary letter of credit issued
by a Specified Issuing Lender pursuant to subsection 3.1 for the
account of a Specified Borrower for the purchase of materials, goods or
services in the ordinary course of business.
"TRADE L/C APPLICATION": as defined in subsection 3.2.
"TRANCHE": the reference to Eurocurrency Loans of a Specified
Borrower the Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day); Tranches may be
identified as "EUROCURRENCY TRANCHES."
"TRANSACTION DOCUMENTS": the Recapitalization Agreement and all
other agreements, instruments or certificates delivered in connection
with the Transactions.
"TRANSACTIONS": as defined in the recitals hereto.
"TRANSFEREE": as defined in subsection 12.6(f).
"TREATY ON EUROPEAN UNION": the Treaty of Rome of March 25, 1957,
as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into
force on November 1, 1993), as amended from time to time.
"TYPE": as to any Loan, its nature as a Base Rate Loan or a
Eurocurrency Loan.
"UNDERLYING LEASE": as defined in subsection 5.8.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and any revisions thereof.
"US BORROWER": as defined in the preamble hereto.
"US BORROWER PRO FORMA BALANCE SHEET": as defined in subsection
5.1(c).
"US ISSUING LENDER": Chase.
"US LENDERS": the collective reference to Lenders holding US Loans
or US Revolving Credit Commitments.
"US LETTERS OF CREDIT": any Letter of Credit issued for the
account of the US Borrower by the US Issuing Lender.
"US LOAN": any loan made to the US Borrower by any US Lender
pursuant to this Agreement.
"US REVOLVING CREDIT COMMITMENT": as to any US Revolving Credit
Lender, its obligation to make US Revolving Credit Loans to the US
Borrower pursuant to subsection 2.1 and to participate in Swing Line
Loans and US Letters of Credit in an aggregate amount not to exceed at
any one time outstanding the amount set forth opposite such Revolving
Credit Lender's name in Schedule 1.1 under the heading
"US Revolving Credit Commitment", as such amount may be reduced
from time to time as provided herein; collectively, as to all the US
Revolving Credit Lenders, the "US REVOLVING CREDIT COMMITMENTS."
"US REVOLVING CREDIT LENDER": any US Lender having a US Revolving
Credit Commitment or that holds outstanding US Revolving Credit Loans
or Specified Accommodation Participating Interests hereunder.
"US REVOLVING CREDIT LOANS": as to the US Borrower, any revolving
credit loans made to the US Borrower by the US Revolving Credit Lenders
pursuant to subsection 2.1(a).
"US STERLING TERM LOANS": as to the US Borrower, any term loans
made to such Borrower by the US Sterling Term Loan Lenders pursuant to
subsection 2.5(c).
"US STERLING TERM LOAN LENDERS": as to the US Borrower, any
Lenders holding outstanding US Sterling Term Loans.
"US SWING LINE LENDER": any US Lender having a Swing Line
Commitment or that holds outstanding Swing Line Loans.
"U.S. TAX COMPLIANCE CERTIFICATE": as defined in subsection
4.7(b)(ii).
"US TERM LOANS": the collective reference to the US Tranche A Term
Loans, the US Tranche B Term Loans and the US Sterling Term Loans.
"US TERM LOAN LENDERS": the collective reference to the US Tranche
A Term Loan Lenders, the US Tranche B Term Loan Lenders and the US
Sterling Term Loan Lenders.
"US TRANCHE A TERM LOANS": as to the US Borrower, any term loans
made to such Borrower by the US Tranche A Term Loan Lenders pursuant to
subsection 2.5(a).
"US TRANCHE A TERM LOAN LENDERS": as to the US Borrower, any
Lenders holding outstanding US Tranche A Term Loans.
"US TRANCHE B TERM LOANS": as to the US Borrower, any term loans
made to such Borrower by the US Tranche B Term Loan Lenders pursuant to
subsection 2.5(b).
"US TRANCHE B TERM LOAN LENDERS": as to the US Borrower, any
Lenders holding outstanding US Tranche B Term Loans.
"WHOLLY OWNED SUBSIDIARY": as to any Person, any Subsidiary of
which such Person owns, directly or indirectly, all of the Capital
Stock of such Subsidiary other than directors' qualifying shares or any
shares held by nominees.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Note or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Note, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the US
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Whenever any amount denominated in a currency other than
Dollars needs to be determined for purposes of Section 8 (other than subsection
8.1) such determination shall be made on the Equivalent Amount of such other
currency on the date on which the particular transaction giving rise to the need
to calculate such Equivalent Amount occurred.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS
2.1 REVOLVING CREDIT COMMITMENTS. (a) THE LENDERS' REVOLVING
CREDIT COMMITMENTS. Subject to the terms and conditions hereof, each Specified
Revolving Credit Lender severally agrees to make Specified Revolving Credit
Loans to the related Specified Borrower from time to time during the Specified
Revolving Credit Commitment Period in an aggregate principal amount or
Equivalent Amount thereof in the relevant currency, if applicable, at any one
time outstanding, when added to such Specified Lender's Specified Revolving
Credit Commitment Percentage of all Specified Accommodation Outstandings and
outstanding Specified Swing Line Loans, not to exceed, after giving effect to
the use of the proceeds thereof, the amount of such Specified Lender's Specified
Revolving Credit Commitment; PROVIDED, that (i) the Specified Borrower shall not
request and the Specified Revolving Credit Lender shall not make any Specified
Revolving Credit Loan if, after giving effect to the making thereof, the
Equivalent Amount of the aggregate Revolving Credit Loans, Accommodation
Outstandings and Swing Line Loans would exceed the US Revolving Credit
Commitments and (ii) neither the English Borrower nor the Euro Borrower shall
request and neither the English Revolving Credit Lenders nor the Euro Revolving
Credit Lenders shall make any English Revolving Credit Loans or Euro Revolving
Credit Loans, as the case may be, if, after giving effect to the making thereof,
the Equivalent Amount of the aggregate of the English Revolving Credit Loans,
the Accommodations issued by the English Issuing Lender for the account of the
English Borrower, the Swing Line Loans made to the English Borrower and the Euro
Revolving Credit Loans, in each case, then outstanding would exceed $20,000,000.
During the Specified Revolving Credit Commitment Period, the Specified Borrower
may use the
Specified Revolving Credit Commitments by borrowing, prepaying the
Specified Revolving Credit Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof.
The Specified Revolving Credit Loans may from time to time be of
any available Type, as determined by the Specified Borrower and notified to the
Specified Agent in accordance with subsections 2.2 and 2.10.
(b) ENGLISH BIDCO'S CONFIRMATION. English Bidco acknowledges and
confirms that (i) Chase issued the Bank Guarantee Letters of Credit with an
aggregate face amount not exceeding (pound)17,823,330.80 to the Guarantor in
respect of the Guaranteed Loan Notes and (ii) English Bidco agreed to reimburse
Chase on each date on which Chase notifies English Bidco of (x) the date and
amount of a demand presented under the Bank Guarantee Letters of Credit, (y) the
amount of such demand paid by Chase, and (z) any taxes, fees, charges or other
costs or expenses incurred by Chase in connection with such payment. English
Bidco hereby represents, warrants, agrees, covenants and reaffirms that:
(i) it has no (and it permanently and irrevocably waives, and releases Chase
from, any, to the extent arising on or prior to the Closing Date) defense,
setoff, claim, or counterclaim against Chase with regard to its English
Obligations in respect of the Bank Guarantee Letters of Credit and (ii)
reaffirms its obligation to reimburse Chase as set forth above.
2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING. Any Specified
Borrower may borrow under the related Specified Revolving Credit Commitment
during the Specified Revolving Credit Commitment Period on any Business Day,
PROVIDED that such Specified Borrower shall give the Specified Agent irrevocable
notice by the Specified Notice Time specifying (i) the amount and currency to be
borrowed, (ii) the requested Borrowing Date, (iii) the Type or Types of Loan,
and (iv) if the borrowing is to be entirely or partly of Eurocurrency Loans, the
respective amounts of each such Type of Specified Loan and the respective
lengths of the initial Interest Periods therefor. Each borrowing under the
Specified Revolving Credit Commitments shall be in a minimum amount equal to (A)
in the case of Base Rate Loans, the Equivalent Amount of $250,000 (or, if the
then Specified Available Revolving Credit Commitments are less than the
Equivalent Amount of $1,000,000, such lesser amount) and (B) in the case of
Eurocurrency Loans, the Equivalent Amount of $1,000,000. Upon receipt of any
such notice from the Specified Borrower, the Specified Agent shall promptly
notify each Specified Revolving Credit Lender thereof. Each Specified Revolving
Credit Lender will make the amount of its pro rata share of each borrowing
available to the Specified Agent for the account of the Specified Borrower at
the office of the Specified Agent specified in subsection 12.2 prior to 11:00
a.m. local time of the Specified Agent, on the Borrowing Date requested by the
Specified Borrower in funds immediately available to the Specified Agent. Such
borrowing will then be made available to the Specified Borrower by the Specified
Agent crediting the account of the Specified Borrower on the books of such
office with the aggregate of the amounts made available to the Specified Agent
by the Specified Revolving Credit Lenders and in like funds as received by the
Specified Agent.
2.3 COMMITMENT FEE; ADMINISTRATIVE AGENT FEES. (a) The US Borrower
agrees to pay to the Administrative Agent for the account of each Revolving
Credit Lender a commitment fee for the period from and including the Closing
Date to, but not including,
the Scheduled Revolving Credit Commitment Termination Date or such
other earlier date on which the Revolving Credit Commitments are terminated
(whether pursuant to Section 9 or otherwise), computed at a rate per annum equal
to the Applicable Margin for Commitment Fees on the average daily excess, if
any, during the period for which payment is made, of (i) the amount of such
Revolving Credit Lender's US Revolving Credit Commitment OVER (ii) the sum of
the Equivalent Amount of (A) the aggregate unpaid principal amount at such time
of all Revolving Credit Loans made by such Revolving Credit Lender, and (B) an
amount equal to such Revolving Credit Lender's Revolving Credit Commitment
Percentage of the Accommodation Outstandings at such time, payable quarterly in
arrears on the last day of each March, June, September, and December and on the
Scheduled Revolving Credit Commitment Termination Date.
(b) Each Borrower shall pay to Chase for the accounts of the
Agents the amounts payable by it set forth in the Fee Letter dated March 24,
1999 or in any subsequent agreement in the amounts and on the dates set forth
therein.
2.4 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS. (a)
Any Specified Borrower shall have the right, upon not less than three (3)
Business Days' notice to the Specified Agent, to terminate the Specified
Revolving Credit Commitments or, from time to time, reduce the unutilized
portion of the amount of the Specified Revolving Credit Commitments, PROVIDED
that any such termination of the Specified Revolving Credit Commitments shall be
accompanied by prepayment (or payment of cash collateral, as applicable in the
case of Specified Accommodations) in full of the Specified Revolving Credit
Loans, Specified Swing Line Loans and Specified Accommodation Obligations then
outstanding in excess of the Specified Revolving Credit Commitments as so
reduced, together with accrued interest thereon to the date of such prepayment,
cancellation of all Specified Accommodations and the payment of any unpaid
commitment fee then accrued hereunder. Any such reduction shall be in a minimum
Equivalent Amount of $1,000,000, and shall reduce permanently the amount of the
Specified Revolving Credit Commitments then in effect and shall further include
any amounts due in respect thereof under subsection 4.8. Upon termination of the
Specified Revolving Credit Commitments, any Specified Accommodation then
outstanding which has been fully cash collateralized shall no longer be
considered an "Accommodation" as defined in subsection 1.1, and any Specified
Accommodation Participating Interest heretofore granted by the Specified Issuing
Lender to the Specified Revolving Credit Lenders in such Specified Accommodation
shall be deemed terminated but the fees payable under subsection 3.3 shall
continue to accrue to the Specified Issuing Lender with respect to such
Specified Letter of Credit until the expiry thereof.
(b) In the case of any reduction of any Specified Revolving Credit
Commitments hereunder, to the extent, if any, that the sum of the Specified
Revolving Credit Loans, Specified Swing Line Loans and the Specified
Accommodation Outstandings exceeds the Specified Revolving Credit Commitments as
so reduced, the Specified Borrower shall make a prepayment equal to such excess
amount, the proceeds of which shall be applied FIRST, to payment of the
Specified Swing Line Loans then outstanding, SECOND, to payment of the Specified
Revolving Credit Loans then outstanding, THIRD, to payment of any Specified
Accommodation Obligations then outstanding and LAST, to cash collateralize any
outstanding Specified Accommodation on terms reasonably satisfactory
to the Specified Lenders holding a majority of the Specified Revolving Credit
Commitments.
(c) Any Specified Revolving Credit Commitments once terminated or
reduced may not be reinstated.
2.5 TERM LOANS. (a) US TRANCHE A TERM LOANS. (i) Subject to the
terms and conditions hereof, each US Tranche A Term Loan Lender severally agrees
to make US Tranche A Term Loans to the US Borrower on the Closing Date in an
amount not to exceed the amount set forth under the heading "US Tranche A Term
Loan Commitment" opposite such Lender's name on Schedule 1.1. The US Tranche A
Term Loans may from time to time be (a) Eurocurrency Loans, (b) Base Rate Loans
or (b) a combination thereof, as determined by the US Borrower and notified to
the Administrative Agent in accordance with subsection 2.10.
(ii) AMORTIZATION OF US TRANCHE A TERM LOANS. The aggregate US
Tranche A Term Loans of all US Tranche A Term Loan Lenders shall be payable in
21 consecutive quarterly installments (except with respect to the last
installment which shall be due and payable on April 21, 2005) on the dates and
in a principal amount equal to the amount set forth below (together with all
accrued interest thereon) opposite the applicable installment date (or, if less,
the aggregate amount of the US Tranche A Term Loans then outstanding):
INSTALLMENT AMOUNT
----------- ------
March 31, 2000 $3,333,333
June 30, 2000 $1,666,667
September 30, 2000 $1,666,667
December 31, 2000 $1,666,667
March 31, 2001 $1,666,667
June 30, 2001 $3,333,333
September 30, 2001 $3,333,333
December 31, 2001 $3,333,333
March 31, 2002 $3,333,333
June 30, 2002 $3,333,333
September 30, 2002 $3,333,333
December 31, 2002 $3,333,333
March 31, 2003 $3,333,333
June 30, 2003 $4,166,667
September 30, 2003 $4,166,667
December 31, 2003 $4,166,667
March 31, 2004 $4,166,667
June 30, 2004 $4,166,667
September 30, 2004 $4,166,667
December 31, 2004 $4,166,667
April 21, 2005 $4,166,666
(b) US TRANCHE B TERM LOANS. (i) Subject to the terms and
conditions hereof, each US Tranche B Term Loan Lender severally agrees to make
US Tranche B Term
Loans to the US Borrower on the Closing Date in an amount not
to exceed the amount set forth under the heading "US Tranche B Term Loan
Commitment" opposite such Lender's name on Schedule 1.1. The US Tranche B Term
Loans may from time to time be (a) Eurocurrency Loans, (b) Base Rate Loans or
(b) a combination thereof, as determined by the US Borrower and notified to the
Administrative Agent in accordance with subsection 2.10.
(ii) AMORTIZATION OF US TRANCHE B TERM LOANS. The aggregate US
Tranche B Term Loans of all US Tranche B Term Loan Lenders shall be payable in
28 consecutive quarterly installments (except with respect to the last
installment which shall be due and payable on October 21, 2006) on the dates and
in a principal amount equal to the amount set forth below (together with all
accrued interest thereon) opposite the applicable installment date (or, if less,
the aggregate amount of the US Tranche B Term Loans then outstanding):
INSTALLMENT AMOUNT
----------- ------
March 31, 2000 $ 1,000,000
June 30, 2000 $ 250,000
September 30, 2000 $ 250,000
December 31, 2000 $ 250,000
March 31, 2001 $ 250,000
June 30, 2001 $ 250,000
September 30, 2001 $ 250,000
December 31, 2001 $ 250,000
March 31, 2002 $ 250,000
June 30, 2002 $ 250,000
September 30, 2002 $ 250,000
December 31, 2002 $ 250,000
March 31, 2003 $ 250,000
June 30, 2003 $ 250,000
September 30, 2003 $ 250,000
December 31, 2003 $ 250,000
March 31, 2004 $ 250,000
June 30, 2004 $ 250,000
September 30, 2004 $ 250,000
December 31, 2004 $ 250,000
March 31, 2005 $ 250,000
June 30, 2005 $ 250,000
September 30, 2005 $ 250,000
December 31, 2005 $ 250,000
March 31, 2006 $ 250,000
June 30, 2006 $ 250,000
September 30, 2006 $ 250,000
October 21, 2006 $182,500,000
(c) US STERLING TERM LOANS. (i) Subject to the terms and
conditions hereof, each US Sterling Term Loan Lender severally agrees to make US
Sterling Term Loans to
the US Borrower on the Closing Date in an amount not to
exceed the amount set forth under the heading "US Sterling Term Loan Commitment"
opposite such Lender's name on Schedule 1.1. The US Sterling Term Loans may from
time to time be (a) Eurocurrency Loans, (b) Base Rate Loans or (b) a combination
thereof, as determined by the US Borrower and notified to the Administrative
Agent in accordance with subsection 2.10.
(ii) AMORTIZATION OF US STERLING TERM LOANS. The aggregate US
Sterling Term Loans of all US Sterling Term Loan Lenders shall be payable in 21
consecutive quarterly installments (except with respect to the last installment
which shall be due and payable on April 21, 2005) on the dates and in a
principal amount equal to the amount set forth below (together with all accrued
interest thereon) opposite the applicable installment date (or, if less, the
aggregate amount of the US Sterling Term Loans then outstanding):
INSTALLMENT AMOUNT
----------- ------
March 31, 2000 (pound)516,190
June 30, 2000 (pound)258,095
September 30, 2000 (pound)258,095
December 31, 2000 (pound)258,095
March 31, 2001 (pound)258,095
June 30, 2001 (pound)516,190
September 30, 2001 (pound)516,190
December 31, 2001 (pound)516,190
March 31, 2002 (pound)516,190
June 30, 2002 (pound)516,190
September 30, 2002 (pound)516,190
December 31, 2002 (pound)516,190
March 31, 2003 (pound)516,190
June 30, 2003 (pound)645,238
September 30, 2003 (pound)645,238
December 31, 2003 (pound)645,239
March 31, 2004 (pound)645,239
June 30, 2004 (pound)645,239
September 30, 2004 (pound)645,239
December 31, 2004 (pound)645,239
April 21, 2005 (pound)645,239
(d) ENGLISH TERM LOANS. (i) Subject to the terms and conditions
hereof, each English Term Loan Lender severally agrees to make English Term
Loans to the English Borrower on the Closing Date in an amount not to exceed the
amount of the amount set forth under the heading "English Term Loan Commitment"
opposite such Lender's name on Schedule 1.1. The English Term Loans may from
time to time be (a) Eurocurrency Loans, (b) Base Rate Loans or (b) a combination
thereof, as determined by English Borrower and notified to the English Agent in
accordance with subsection 2.10.
(ii) AMORTIZATION OF ENGLISH TERM LOANS. The aggregate English
Term Loans of all English Term Loan Lenders shall be payable in 21 consecutive
quarterly installments (except with respect to the last installment which shall
be due and payable on April 21, 2005) on the dates and in a principal amount
equal to the amount set forth below
(together with all accrued interest thereon) opposite the applicable installment
date (or, if less, the aggregate amount of the English Term Loans then
outstanding):
INSTALLMENT AMOUNT
----------- ------
March 31, 2000 (pound)516,190
June 30, 2000 (pound)258,095
September 30, 2000 (pound)258,095
December 31, 2000 (pound)258,095
March 31, 2001 (pound)258,095
June 30, 2001 (pound)516,190
September 30, 2001 (pound)516,190
December 31, 2001 (pound)516,190
March 31, 2002 (pound)516,190
June 30, 2002 (pound)516,190
September 30, 2002 (pound)516,190
December 31, 2002 (pound)516,190
March 31, 2003 (pound)516,190
June 30, 2003 (pound)645,238
September 30, 2003 (pound)645,238
December 31, 2003 (pound)645,239
March 31, 2004 (pound)645,239
June 30, 2004 (pound)645,239
September 30, 2004 (pound)645,239
December 31, 2004 (pound)645,239
April 21, 2005 (pound)645,239
2.6 PROCEDURE FOR TERM LOAN BORROWINGS. The Specified Subsidiary
Borrower shall give the Specified Agent irrevocable notice by the Specified
Notice Time requesting that the Specified Term Loan Lenders make the Specified
Term Loans on the requested Borrowing Date and specifying (i) the amount and
currency to be borrowed, (ii) the requested Borrowing Date, (iii) the Type or
Types of Loan, and (iv) if the borrowing is to be entirely or partly of
Eurocurrency Loans, the respective amounts of each such Type of Specified Loan
and the respective lengths of the initial Interest Periods therefor. Upon
receipt of such notice the Specified Agent shall promptly notify each Specified
Term Loan Lender thereof. Each Specified Term Loan Lender will make an amount
equal to the Specified Term Loans to be made by such Lender available to the
Specified Agent for the account of the Specified Borrower at the office of the
Specified Agent specified in subsection 12.2 prior to 11:00 a.m. local time of
the Specified Agent, on the Borrowing Date requested by the Specified Borrower
in funds immediately available to the Specified Agent. Such borrowing will then
be made available to the Specified Borrower by the Specified Agent crediting the
account of the Specified Borrower on the books of such office with the aggregate
of the amounts made available to the Specified Agent by the Specified Term Loan
Lenders and in like funds as received by the Specified Agent.
2.7 REPAYMENT OF LOANS. (a) Each Specified Borrower hereby
unconditionally promises to pay to the Specified Agent for the account of: (i)
each Specified Revolving Credit Lender, the then unpaid principal amount of each
Specified
Revolving Credit Loan of such Specified Lender, on the Specified Revolving
Credit Commitment Termination Date (or such earlier date on which the
Specified Revolving Credit Loans become due and payable pursuant to Section
9); (ii) each Specified Swing Line Lender, the then unpaid principal amount
of the Specified Swing Line Loans of such Swing Line Lender, on the Specified
Revolving Credit Commitment Termination Date (or such earlier date on which
the Specified Swing Line Loans become due and payable pursuant to Section 9);
(iii) each US Tranche A Term Loan Lender, such Lender's Ratable Portion of
the amounts specified in subsection 2.5(a)(ii) (or, if less, the aggregate
amount of the US Tranche A Term Loans of such Lender then outstanding), on
the dates specified in subsection 2.5(a)(ii) (or such earlier date on which
the US Tranche A Term Loans become due and payable pursuant to Section 9);
(iv) each US Tranche B Term Loan Lender, such Lender's Ratable Portion of the
amounts specified in subsection 2.5(b)(ii) (or, if less, the aggregate amount
of the US Tranche B Term Loans of such Lender then outstanding), on the dates
specified in subsection 2.5(b)(ii) (or such earlier date on which the US
Tranche B Term Loans become due and payable pursuant to Section 9); (v) each
US Sterling Term Loan Lender, such Lender's Ratable Portion of the amounts
specified in subsection 2.5(c)(ii) (or, if less, the aggregate amount of the
US Sterling Term Loans of such Lender then outstanding), on the dates
specified in subsection 2.5(c)(ii) (or such earlier date on which the US
Sterling Term Loans become due and payable pursuant to Section 9); and (vi)
each English Term Loan Lender, such Lender's Ratable Portion of the amounts
specified in subsection 2.5(c)(ii) (or, if less, the aggregate amount of the
English Term Loans of such Lender then outstanding), on the dates specified
in subsection 2.5(c)(ii) (or such earlier date on which the English Term
Loans become due and payable pursuant to Section 9). Each Specified Borrower
hereby further agrees to pay interest on the unpaid principal amount of its
Specified Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth
in subsection 4.1.
(b) Each Specified Lender (including each Specified Swing Line
Lender) shall maintain in accordance with its usual practice an account or
accounts evidencing indebtedness of the Specified Borrower to such Specified
Lender resulting from each Specified Loan of such Specified Lender from time to
time, including the amounts of principal and interest payable and paid to such
Specified Lender from time to time under this Agreement.
(c) Each Specified Agent shall maintain a Specified Register
pursuant to subsection 12.6(d), and a subaccount therein for each Specified
Lender, in which shall be recorded (i) the amount of each Specified Loan made
hereunder and any Note evidencing such Loan, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Specified Borrower to each
Specified Lender hereunder and (iii) both the amount of any sum received by such
Specified Agent hereunder from each Specified Borrower and each Specified
Lender's share thereof.
(d) The entries made in each Specified Register and the accounts
of each Specified Lender maintained pursuant to subsection 2.7(b) shall, to the
extent permitted by applicable law andabsent manifest error, be PRIMA FACIE
evidence of the existence and amounts of the obligations of each Specified
Borrower therein recorded; PROVIDED, HOWEVER, that the failure of any Specified
Lender or any Specified Agent to maintain the
applicable Specified Register or any such account, or any error therein,
shall not in any manner affect the obligation of each Specified Borrower to
repay (with applicable interest) its Specified Loans owing to the Specified
Lender in accordance with the terms of this Agreement.
(e) The US Borrower agrees that, upon request to the US Agent by
any Specified Lender, the US Borrower will execute and deliver to such Specified
Lender (i) a promissory note of the US Borrower evidencing the Specified
Revolving Credit Loans of such Specified Lender, substantially in the form of
Exhibit A-1 with appropriate insertions as to date and principal amount (each as
amended, supplemented, replaced or otherwise modified from time to time, a
"REVOLVING CREDIT NOTE"), and/or (ii) a promissory note of the Specified
Borrower evidencing the Specified Term Loan of such Specified Lender,
substantially in the form of Exhibit A-2 with appropriate insertions as to
Borrower, currency, date, and principal amount (each as amended, supplemented,
replaced or otherwise modified from time to time, a "TERM NOTE"), and/or (iii) a
promissory note of such Specified Borrower evidencing the Specified Swing Line
Loans of the Specified Swing Line Lender, substantially in the form of Exhibit
A-3 with appropriate insertions as to date and principal amount (as amended,
supplemented, replaced or otherwise modified from time to time, the "SWING LINE
NOTE").
2.8 OPTIONAL PREPAYMENTS. Any Borrower may, at any time and from
time to time, prepay such Specified Borrower's Specified Loans, in whole or in
part, without premium or penalty except as set forth in subsection 4.8, upon at
least three (3) Business Days' irrevocable notice to the Specified Agent,
specifying the date and amount of prepayment and whether the prepayment is of
(i) a specific Type of Loan and, if of a combination thereof, the amount
allocable to each and (ii) (1) Specified Term Loans, (2) Specified Revolving
Credit Loans, or (3) a combination thereof, as the case may be, and if of a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Specified Agent shall promptly notify each Specified Term Loan Lender
or Specified Revolving Credit Lender, as the case may be, thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with, in the case of prepayments of the
Eurocurrency Loans only, accrued interest to such date on the amount prepaid.
Optional prepayments of the Term Loans shall be applied to each
class or tranche of Term Loans and to the installments thereof as the US
Borrower shall so elect. Amounts prepaid on account of any Term Loans may not be
reborrowed. Partial prepayments shall be in an aggregate principal Equivalent
Amount of at least $1,000,000 and shall include any amounts due in respect
thereof under subsection 4.8.
2.9 MANDATORY PREPAYMENTS.
(a) Subsequent to the Closing Date, unless the Required Lenders
and the US Borrower shall otherwise agree, if the US Borrower or any of its
Subsidiaries shall issue any class of Capital Stock for cash (other than (i) any
Capital Stock issued to finance a Permitted Acquisition permitted hereunder,
(ii) Capital Stock issued by any Subsidiary pursuant to a capital contribution
to such Subsidiary by the US Borrower or any other Subsidiary, (iii) Capital
Stock issued to officers, directors or employees as compensation or as part of
an incentive program or (iv) Capital Stock issued by the US Borrower to any
Affiliate, as
determined prior to the making of such capital contribution, of the US
Borrower pursuant to a capital contribution to the US Borrower by such
Affiliate) or incur any Indebtedness other than any Indebtedness permitted
pursuant to subsection 8.2 (other than clause (n) thereof), within five (5)
Business Days of the date of such issuance or incurrence, each Borrower shall
prepay an amount of its Specified Term Loans equal to its Specified Borrower
Percentage of the Equity Prepayment Percentage, in the case of the issuance
of any such Capital Stock, or the Debt Prepayment Percentage, in the case of
the incurrence of any such Indebtedness, of the Net Cash Proceeds thereof as
set forth in paragraph (d) of this subsection 2.9; PROVIDED, that if at the
time any Capital Stock (other than Capital Stock described in clauses (i)
through (iv) above) or Senior Subordinated Notes are issued there are any
amounts outstanding under the Interim Loan Agreement, the Net Cash Proceeds
from the issuance thereof shall, subject to the subordination provisions of
the Interim Loan Agreement, be applied first to prepay such amounts and any
remaining amount shall be applied in accordance with the last sentence of
subsection 2.9(d).
(b) Unless the Required Lenders and the US Borrower shall
otherwise agree, if the US Borrower or any of its Subsidiaries shall consummate
any Asset Sale or receive any cash proceeds of any casualty or condemnation, on
the date which is twelve months after the date of consummation of such Asset
Sale or receipt of such proceeds, each Borrower shall prepay an amount of its
Specified Term Loans equal to its Specified Borrower Percentage of the Asset
Sale Prepayment Percentage of the Net Cash Proceeds thereof as set forth in
paragraph (d) of this subsection 2.9 to the extent that such Net Cash Proceeds
from the Asset Sale or casualty or condemnation event have not been reinvested
in the business of the US Borrower or any of its Subsidiaries within twelve
months of the date of such Asset Sale or such casualty or condemnation event.
Notwithstanding the foregoing, in the event that at the time of consummation of
any Asset Sale or the occurrence of any casualty or condemnation event, the
Interim Loan Agreement prohibits the Borrowers from so reinvesting the Net Cash
Proceeds from any such Asset Sale or casualty or condemnation event or requires
that such Net Cash Proceeds be used to repay the Interim Loan, such Net Cash
Proceeds shall be applied to the prepayment of the Term Loans as set forth in
paragraph (d) of this subsection 2.9.
(c) Unless the Required Lenders and the US Borrower shall
otherwise agree, if for any fiscal year, commencing with the fiscal year ending
December 31, 2000, there shall be Excess Cash Flow for such fiscal year, each
Borrower shall prepay an amount of its Specified Term Loans equal to its
Specified Borrower Percentage of the ECF Prepayment Percentage of such Excess
Cash Flow as set forth in paragraph (d) of this subsection 2.9. Each such
prepayment shall be made on or before the date which is seven (7) Business Days
after the earlier of (A) the date on which the financial statements referred to
in subsection 7.1(a) are required to be delivered to the Lenders and (B) the
date on which said financial statements are actually delivered.
(d) Mandatory prepayments of the Term Loans shall be applied (i)
PRO RATA to each class or tranche of Term Loans ratably based upon the then
outstanding principal amounts of the Term Loans (with each class or tranche of
Term Loan to be allocated that percentage of the amount to be applied as is
equal to a fraction (expressed as a percentage), the NUMERATOR of which is the
then outstanding principal amount of such class or tranche of Term Loans, as the
case may be, and the DENOMINATOR of which is equal to the then outstanding
principal amount of all Term Loans); (ii) to reduce the then
remaining installments of such Term Loans ratably based upon the then amounts
of such installments of such Term Loans; and (iii) subject to clauses (i) and
(ii), prepayments shall be applied FIRST to Base Rate Loans and SECOND, PRO
RATA, to Eurocurrency Loans, PROVIDED, that in the event the mandatory
prepayment of any class or tranche of Term Loans as a result of an asset sale
or disposition by any Foreign Subsidiary Borrower or any of its Subsidiaries
would result in any adverse tax impact to the US Borrower or any other
Foreign Subsidiary Borrower, the portion allocable to the Term Loans of each
affected Borrower shall instead be applied to the Term Loans of the
applicable Foreign Subsidiary Borrower. Amounts prepaid on account of any of
the Term Loans may not be reborrowed. Notwithstanding the foregoing but
subject to the proviso contained in subsection 2.9(a), the Net Cash Proceeds
from the issuance of any Senior Subordinated Notes in excess of the amounts
then outstanding under the Interim Loan Agreement shall be applied first to
the prepayment of the US Tranche B Term Loans and to the installments thereof
in the inverse order of maturity.
(e) Notwithstanding anything to the contrary in subsections 2.9(d)
or 4.4, with respect to the amount of any mandatory prepayment described in
subsection 2.9 that is allocated to US Tranche B Term Loans (such amount, the
"US TRANCHE B PREPAYMENT AMOUNT"), at any time when US Tranche A Term Loans
remain outstanding, the relevant Borrower will, in lieu of applying such amount
to the prepayment of US Tranche B Term Loans, as provided in paragraph (d)
above, on the date specified in subsection 2.9 for such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent prepare and provide to each US Tranche
B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described
below. As promptly as practicable after receiving such notice from the relevant
Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender
a Prepayment Option Notice, which shall be in the form of Exhibit R, and shall
include an offer by the relevant Borrower to prepay on the date (each a
"MANDATORY PREPAYMENT DATE") that is 10 Business Days after the date of the
Prepayment Option Notice, the relevant Term Loans of such Lender by an amount
equal to the portion of the Prepayment Amount indicated in such Lender's
Prepayment Option Notice as being applicable to such Lender's US Tranche B Term
Loans. On the Mandatory Prepayment Date, (i) the relevant Borrower shall pay to
the Administrative Agent the aggregate amount necessary to prepay that portion
of the outstanding relevant US Tranche B Term Loans in respect of which US
Tranche B Lenders have accepted prepayment as described above (such Lenders, the
"ACCEPTING LENDERS"), and such amount shall be applied to reduce the US Tranche
B Prepayment Amounts with respect to each Accepting Lender and (ii) the relevant
Borrower shall pay to the Administrative Agent an amount equal to the portion of
the US Tranche B Prepayment Amount not accepted by the Accepting Lenders, and
such amount shall be applied to the prepayment of the US Tranche A Term Loans.
(f) With respect to any Specified Borrower, if at any time the sum
of its Specified Revolving Credit Loans, Specified Swing Line Loans and
Specified Accommodation Outstandings exceeds the Specified Revolving Credit
Commitments (including at any time after any reduction of the Specified
Revolving Credit Commitments pursuant to subsection 2.4), the Specified Borrower
shall make a payment in the amount of such excess which payment shall be applied
in the order and in the manner set forth in subsection 2.4(b). To the extent
that after giving effect to any prepayment of the Specified Loans required by
the preceding sentence, the sum of the Specified Revolving Credit
Loans, Specified Swing Line Loans and Specified Accommodation Outstandings
exceeds the Specified Revolving Credit Commitments then in effect, the
Specified Borrower shall, without notice or demand, immediately cash
collateralize the then outstanding Specified Accommodation Obligations in an
amount equal to such excess upon terms reasonably satisfactory to the
Specified Agent.
(g) If at any time the sum of the Equivalent Amount of the
Revolving Credit Loans, Swing Line Loans and Accommodation Outstandings exceeds
the US Revolving Credit Commitments (including at any time after any reduction
of the US Revolving Credit Commitments pursuant to subsection 2.4), the
Borrowers shall make a payment in the amount of such excess which payment shall
be applied in the order and in the manner set forth in subsection 2.4(b). To the
extent that after giving effect to any prepayment of the Loans required by the
preceding sentence, the sum of the Equivalent Amount of the Revolving Credit
Loans, Swing Line Loans and Accommodation Outstandings exceeds the Revolving
Credit Commitments then in effect, the Borrowers shall, without notice or
demand, immediately cash collateralize the then outstanding Accommodation
Obligations in an amount equal to such excess upon terms reasonably satisfactory
to the Specified Agent with respect to the relevant Accommodation Obligations.
(h) The provisions of this subsection 2.9 shall not be in
derogation of any other covenant or obligation of the US Borrower and its
Subsidiaries under the Loan Documents and shall not be construed as a waiver of,
or a consent to departure from, any such covenant or obligation.
(i) Notwithstanding the foregoing provisions of this subsection
2.9, if at any time the mandatory prepayment of any Specified Term Loans
pursuant to this Agreement would result, after giving effect to the procedures
set forth in this Agreement, in the Specified Borrower incurring costs, under
subsection 4.5, 4.6 or 4.7 as a result of Eurocurrency Loans ("AFFECTED
EUROCURRENCY LOANS") being prepaid other than on the last day of an Interest
Period applicable thereto, which costs are required to be paid pursuant to
subsection 4.8, then the Specified Borrower may, in its sole discretion,
initially deposit a portion (up to 100%) of the amounts that otherwise would
have been paid in respect to the Affected Eurocurrency Loans with the Specified
Agent (which deposit must be equal in amount to the amount of the Affected
Eurocurrency Loans not immediately prepaid) to be held as security for the
obligations of the Specified Borrower to make such mandatory prepayment pursuant
to a cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Specified Agent, with such cash collateral to be
directly applied upon the first occurrence (or occurrences) thereafter of the
last day of an Interest Period applicable to the relevant Specified Term Loan
that is a Eurocurrency Loan (or such earlier date or dates as shall be requested
by the Specified Borrower), to repay an aggregate principal amount of such
Specified Term Loan equal to the Affected Eurocurrency Loans not initially
repaid pursuant to this sentence.
(j) Notwithstanding anything to the contrary contained herein,
nothing herein shall require any Foreign Subsidiary Borrower to make any payment
to any Lenders (other than its Specified Lenders), it being acknowledged that no
Foreign Subsidiary Borrower is in any way liable for any of the Domestic
Obligations or any Obligations of any other Foreign Subsidiary Borrower (other
than the English Borrower with respect to the
Bank Guarantee Letters of Credit and the English Term Loans to the extent
assumed or guaranteed by it).
2.10 CONVERSION AND CONTINUATION OPTIONS. (a) Subject to the terms
and conditions hereof and to the extent available to it, any Specified Borrower
may elect from time to time to convert its Base Rate Loans to Eurocurrency Loans
by giving the Specified Agent at least three (3) Business Days' prior
irrevocable notice of such election; PROVIDED that at no time may any Specified
Borrower elect to convert any or all of its Specified Swing Line Loans from Base
Rate Loans to Eurocurrency Loans. Any such notice of conversion to Eurocurrency
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Specified Agent shall
promptly notify each affected Specified Term Loan Lender or Specified Revolving
Credit Lender, as the case may be, thereof. All or any part of outstanding Base
Rate Loans may be converted as provided herein, PROVIDED that (i) no Base Rate
Loan may be converted into a Eurocurrency Loan when any Event of Default has
occurred and is continuing and the Specified Agent has or the Required Lenders
have determined that such a conversion is not appropriate and (ii) any such
conversion may only be made if, after giving effect thereto, subsection 2.11
shall not have been contravened.
(b) Any Eurocurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Specified Borrower giving notice to the Specified Agent, in accordance with the
applicable provisions of the term "INTEREST PERIOD" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
PROVIDED that no Eurocurrency Loan may be continued as such (i) when any Event
of Default has occurred and is continuing and the Specified Agent has or the
Required Lenders have determined that such a continuation is not appropriate or
(ii) if, after giving effect thereto, subsection 2.11 would be contravened and
PROVIDED, FURTHER, that if the Specified Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso, such Eurocurrency Loans shall
be automatically continued as Eurocurrency Loans on the last day of such then
expiring Interest Period with a new Interest Period of one (1) month.
(c) Subject to the terms and conditions hereof and to the extent
available to it, any Specified Borrower may elect from time to time to convert
its Eurocurrency Loans to Base Rate Loans, by giving the Specified Agent at
least two (2) Business Days' prior irrevocable notice of such election, PROVIDED
that, unless such Specified Borrower elects to pay to the Specified Agent for
the account of the Specified Lenders the amount of any breakage costs and other
Eurocurrency Loan related costs to be incurred by such Specified Borrower under
this Agreement with respect to the prepayment or conversion of such Eurocurrency
Loan prior to the end of an Interest Period, any such conversion of Eurocurrency
Loans may only be made on the last day of an Interest Period with respect
thereto.
(d) For greater certainty, the conversion of any Loan to another
basis of Loan, as provided in this subsection 2.10, shall not constitute a
repayment of amounts owing under the Specified Loans under this Agreement nor a
new advance of funds hereunder.
2.11 MINIMUM AMOUNTS OF TRANCHES. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurocurrency Tranche shall be in a minimum Equivalent Amount of
$1,000,000 and so that there shall not be more than 12 Eurocurrency Tranches at
any one time outstanding.
2.12 SWING LINE COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Specified Swing Line Lender agrees to make Swing Line
Loans to the Specified Borrower from time to time during the Specified Revolving
Credit Commitment Period in an aggregate principal amount at any one time
outstanding not to exceed the Specified Swing Line Commitment of such Specified
Swing Line Lender, PROVIDED that at no time (i) may the sum of the Specified
Swing Line Loans, the Specified Revolving Credit Loans and Specified
Accommodation Outstandings exceed the Specified Revolving Credit Commitments,
(ii) may the aggregate of the Swing Line Loans, the Revolving Credit Loans and
the Accommodation Outstandings exceed the US Revolving Credit Commitments or
(iii) may the Equivalent Amount of the aggregate of the English Revolving Credit
Loans, the Accommodations issued by the English Issuing Lender for the account
of the English Borrower, the Swing Line Loans made to the English Borrower and
the Euro Revolving Credit Loans, in each case, then outstanding exceed
$20,000,000. During the Specified Revolving Credit Commitment Period, the
Specified Borrower may use the Specified Swing Line Commitment by borrowing,
prepaying the Specified Swing Line Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof. All Specified Swing Line
Loans shall be Base Rate Loans. The Specified Borrower shall give the Specified
Swing Line Lender irrevocable notice (which notice must be received by the
Specified Swing Line Lender prior to 12:00 noon local time of the Specified
Swing Line Lender) on the requested Borrowing Date specifying the amount of the
requested Specified Swing Line Loan which shall be in an aggregate minimum
Equivalent Amount of $100,000. The proceeds of the Specified Swing Line Loan
will be made available by the Specified Swing Line Lender to the Specified
Borrower at the office of the Specified Swing Line Lender by 2:00 p.m. local
time on the Borrowing Date by crediting the account of the Specified Borrower at
such office with such proceeds. The Specified Borrower may at any time and from
time to time, prepay the Specified Swing Line Loans, in whole or in part,
without premium or penalty, by notifying the Specified Swing Line Lender prior
to 12:00 noon local time on any Business Day of the date and amount of
prepayment. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Partial prepayments
shall be in a minimum principal Equivalent Amount of $100,000.
(b) Any Specified Swing Line Lender, at any time in its sole
and absolute discretion may, on behalf of the Specified Borrower (which hereby
irrevocably directs the Specified Swing Line Lender to act on its behalf), and
without regard to the minimum amounts in subsection 2.2, request each Specified
Revolving Credit Lender including the Specified Swing Line Lender to make a
Specified Revolving Credit Loan in an amount equal to such Specified Lender's
Revolving Credit Commitment Percentage of the amount of the Specified Swing Line
Loans outstanding on the date such notice is given (the "SPECIFIED REFUNDED
SWING LINE LOANS"). Unless any of the events described in paragraph (f) of
Section 9 shall have occurred with respect to the Specified Borrower (in which
event the procedures of paragraph (d) of this subsection 2.12 shall apply) each
Specified
Revolving Credit Lender shall make the proceeds of its Specified Revolving
Credit Loan available to the Specified Agent for the account of the Specified
Swing Line Lender at the office of the Specified Agent specified in
subsection 12.2 prior to 1:00 p.m. local time of a Specified Agent in funds
immediately available on the Business Day next succeeding the date such
notice is given. The proceeds of such Specified Revolving Credit Loans shall
be immediately applied to repay the Specified Refunded Swing Line Loans.
Effective on the day such Specified Revolving Credit Loans are made, the
portion of such Loans so paid shall no longer be outstanding as Specified
Swing Line Loans, shall no longer be due under any Specified Swing Line Note
and shall be Specified Revolving Credit Loans made by the Specified Revolving
Credit Lenders in accordance with their respective Specified Revolving Credit
Commitment Percentages. Each Specified Borrower authorizes the Specified
Swing Line Lender to charge its accounts with the Specified Agent (up to the
amount available in each such account) in order to immediately pay the amount
of such Specified Refunded Swing Line Loans to the extent amounts received
from the Specified Revolving Credit Lenders are not sufficient to repay in
full such Specified Refunded Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, no Specified
Swing Line Lender shall be obligated to make any Specified Swing Line Loans if
the conditions set forth in subsection 6.2 have not been satisfied.
(d) If prior to the making of a Specified Revolving Credit Loan
pursuant to paragraph (b) of this subsection 2.12 one of the events described in
paragraph (f) of Section 9 shall have occurred and be continuing with respect to
the Specified Borrower, each Specified Revolving Credit Lender will, on the date
such Specified Revolving Credit Loan was to have been made pursuant to the
notice in subsection 2.12(b), purchase an undivided participating interest in
the Specified Refunded Swing Line Loan in an amount equal to (i) its Specified
Revolving Credit Commitment Percentage MULTIPLIED BY (ii) the Specified Refunded
Swing Line Loans. Each Specified Revolving Credit Lender will immediately
transfer to the Specified Swing Line Lender, in immediately available funds, the
amount of its participation, and upon receipt thereof the Specified Swing Line
Lender will deliver to such Specified Revolving Credit Lender a Specified Swing
Line Loan Participation Certificate dated the date of receipt of such funds and
in such amount.
(e) Whenever, at any time after any Specified Revolving Credit
Lender has purchased a participating interest in a Specified Swing Line Loan,
the Specified Swing Line Lender receives any payment on account thereof, the
Specified Swing Line Lender will distribute to such Specified Revolving Credit
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Specified Revolving Credit Lender's participating interest was outstanding and
funded); PROVIDED, HOWEVER, that in the event that such payment received by the
Specified Swing Line Lender is required to be returned, such Specified Revolving
Credit Lender will return to the Specified Swing Line Lender any portion thereof
previously distributed by the Specified Swing Line Lender to it.
(f) Each Specified Revolving Credit Lender's obligation to
make the Loans referred to in subsection 2.12(b) and to purchase participating
interests pursuant to subsection 2.12(d) 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
Specified Revolving Credit Lender or the Specified
Borrower may have against the Specified Swing Line Lender, the Specified
Borrower or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or an Event of Default; (iii) any adverse change
in the condition (financial or otherwise) of the Specified Borrower; (iv) any
breach of this Agreement or any other Specified Loan Document by the
Specified Borrower, any Subsidiary or any other Specified Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
SECTION 3. ACCOMMODATIONS
3.1 THE ACCOMMODATION COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Specified Issuing Lender, in reliance on the agreements
of the other Specified Revolving Credit Lenders set forth in subsection 3.4(a),
agrees to issue or accept Specified Accommodations for the account of the
related Specified Borrower on any Business Day during the Specified Revolving
Credit Commitment Period in such form as may be approved from time to time by
the Specified Issuing Lender; PROVIDED, that, no Specified Issuing Lender shall
issue or accept any Specified Accommodation if, after giving effect to such
issuance, (i) the Specified Accommodation Outstandings would exceed the
Specified Issuing Lender's Accommodation Commitment, (ii) the sum of the
Specified Revolving Credit Loans, Specified Swing Line Loans, and Specified
Accommodation Outstandings of the Specified Revolving Credit Lenders would
exceed the Specified Revolving Credit Commitments of the Specified Revolving
Credit Lenders, (iii) the aggregate of the Swing Line Loans, the Revolving
Credit Loans and the Accommodation Outstandings would exceed the US Revolving
Credit Commitments or (iv) the Equivalent Amount of the aggregate of the English
Revolving Credit Loans, the Accommodations issued by the English Issuing Lender
for the account of the English Borrower, the Swing Line Loans made to the
English Borrower and the Euro Revolving Credit Loans, in each case, then
outstanding would exceed $20,000,000. Each Specified Accommodation shall (i) be
(w) the Bank Guarantee Letters of Credit, (x) a Standby L/C, (y) a Trade L/C or
(z) a bankers' acceptance, to the extent included in the Specified Accommodation
Commitment and (ii) expire or mature no later than five (5) Business Days prior
to the Scheduled Revolving Credit Commitment Termination Date. No Accommodation
(other than the Bank Guarantee Letters of Credit) shall have an expiry or
maturity date more than one year after its date of issuance or creation;
PROVIDED, that, any Specified Letter of Credit (other than the Bank Guarantee
Letters of Credit) may provide for the renewal thereof for additional periods
not to exceed one (1) year (which shall in no event extend beyond the Scheduled
Revolving Credit Commitment Termination Date). Each Specified Accommodation
shall be denominated in the currency of the Specified Revolving Credit
Commitment.
(b) Each Specified Letter of Credit shall be subject to the
Uniform Customs and, to the extent not inconsistent therewith, the laws of the
jurisdiction of the Specified Issuing Lender's office.
(c) No Specified Issuing Lender shall at any time be obligated to
issue or accept any Specified Accommodation hereunder if such issuance would
conflict with, or cause the Specified Issuing Lender or any Specified
Participating Lender to exceed any limits imposed by, any applicable Requirement
of Law.
3.2 PROCEDURE FOR ISSUANCE OF SPECIFIED ACCOMMODATIONS. Any
Specified Borrower may from time to time request that the Specified Issuing
Lender issue or accept a Specified Accommodation by delivering to the Specified
Issuing Lender and the Specified Agent at their respective address for notices
specified herein a draft of the Specified Accommodation to be accepted by the
Specified Issuing Lender, or a commercial letter of credit application in the
Issuing Lender's then customary form (a "TRADE L/C APPLICATION"), or a standby
letter of credit application in the Specified Issuing Lender's then customary
form (a "STANDBY L/C APPLICATION"), completed to the reasonable satisfaction of
the Specified Issuing Lender, and such other certificates, documents and other
papers and information as may be customary for Accommodations of the kind being
requested and as the Specified Issuing Lender may reasonably request. Upon
receipt of any Letter of Credit Application and appropriate documentation, the
Specified Issuing Lender will process such documents, certificates and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and, upon receipt by the Specified Issuing Lender
of confirmation from the Specified Agent that issuance of such Specified
Accommodation will not contravene subsection 3.1, the Specified Issuing Lender
shall promptly issue or accept the Specified Accommodation requested thereby
(but in no event shall the Specified Issuing Lender be required to issue or
accept any Specified Letter of Credit earlier than three (3) Business Days (or
such earlier date as the Specified Issuing Lender may approve) after its receipt
of the appropriate documentation therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Specified Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Specified Issuing Lender and the Specified
Borrower or delivering the accepted draft to the Specified Borrower (or as
directed by it). The Specified Issuing Lender shall furnish a copy of such
Specified Letter of Credit to the Specified Borrower and the Specified Agent
promptly following the issuance thereof. Each Specified Agent shall provide a
notice of the aggregate amount of Specified Accommodation Outstandings
periodically, but at least annually, to the Specified Lenders.
3.3 FEES, COMMISSIONS AND OTHER CHARGES. (a) Each Specified
Borrower shall pay to the Specified Agent, for the account of the Specified
Issuing Lender and the Specified Participating Lenders, a letter of credit
commission or acceptance fee, as applicable, with respect to each Specified
Accommodation, in an amount equal to the Applicable Margin applicable to
Specified Revolving Credit Loans bearing interest at the Eurocurrency Rate plus
1/4 of 1% per annum of the average daily face amount of such Specified
Accommodation, payable quarterly in arrears on the last day of each March, June,
September and December and on the Specified Revolving Credit Commitment
Termination Date. A portion of such commission or fee, as applicable, equal to
1/4 of 1% of the average daily face amount of such Specified Accommodation shall
be payable to the Specified Issuing Lender for its own account, and the
remaining portion of such commission shall be payable to the Specified Issuing
Lender and the Specified Participating Lenders to be shared ratably among them
in accordance with their respective Specified Revolving Credit Commitment
Percentages. Such commission and fee shall be nonrefundable.
(b) In addition to the foregoing fees and commissions, each
Specified Borrower shall pay or reimburse the Specified Issuing Lender for such
normal and customary costs and expenses as are incurred or charged by such
Specified Issuing Lender in issuing, effecting payment under, amending or
otherwise administering any Specified Accommodation.
(c) The Specified Agent shall, promptly following its receipt
thereof, distribute to the Specified Issuing Lender and the Specified
Participating Lenders all fees and commissions received by the Specified Agent
for their respective accounts pursuant to this subsection.
3.4 ACCOMMODATION PARTICIPATIONS. (a) Effective on the date of
issuance or acceptance of each Specified Accommodation (or, in the case of the
Bank Guarantee Letters of Credit, the Closing Date), the Specified Issuing
Lender irrevocably agrees to grant and hereby grants to each Specified
Participating Lender, and each Specified Participating Lender irrevocably agrees
to accept and purchase and hereby accepts and purchases from the Specified
Issuing Lender, on the terms and conditions hereinafter stated, for such
Specified Participating Lender's own account and risk an undivided interest
equal to such Specified Participating Lender's Specified Revolving Credit
Commitment Percentage in the Specified Issuing Lender's obligations and rights
under each Specified Accommodation issued by such Specified Issuing Lender and
the amount of each draft paid by the Specified Issuing Lender thereunder. Each
Specified Participating Lender unconditionally and irrevocably agrees with the
Specified Issuing Lender that, if a draft is paid under any Specified
Accommodation (including a draft drawn by the Guarantor under the Bank Guarantee
Loan Note Letter of Credit) for which such Specified Issuing Lender is not
reimbursed in full by the Specified Borrower in accordance with the terms of
this Agreement, such Specified Participating Lender shall pay to the Specified
Agent, for the account of the Specified Issuing Lender, upon demand at the
Specified Agent's address specified in subsection 12.2, an amount equal to such
Specified Participating Lender's Specified Revolving Credit Commitment
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed. On the date that any Specified Assignee becomes a Specified
Revolving Credit Lender party to this Agreement in accordance with subsection
12.6, participating interests in any outstanding Specified Accommodation held by
the transferor Specified Revolving Credit Lender from which such Assignee
acquired its interest hereunder shall be proportionately reallotted between such
Specified Assignee and such transferor Specified Revolving Credit Lender. Each
Specified Participating Lender hereby agrees that its obligation to participate
in each Specified Accommodation, and to pay or to reimburse the Specified
Issuing Lender for its participating share of the drafts drawn or amounts
otherwise paid thereunder, is absolute, irrevocable and unconditional and shall
not be affected by any circumstances whatsoever (including, without limitation,
the occurrence or continuance of any Default or Event of Default), and that each
such payment shall be made without offset, abatement, withholding or other
reduction whatsoever.
(b) If any amount required to be paid by any Specified
Participating Lender to the Specified Issuing Lender pursuant to subsection
3.4(a) in respect of any unreimbursed portion of any draft paid by the Specified
Issuing Lender under any Specified Letter of Credit is paid to the Specified
Issuing Lender after the date such payment is due, such Specified Participating
Lender shall pay to the Specified Agent, for
the account of the Specified Issuing Lender, on demand, an amount equal to
the product of (i) such amount, multiplied by (ii) the daily average Base
Rate (or if there is no Base Rate available, daily Eurocurrency Rate) for the
Specified Borrower during the period from and including the date such payment
is required to the date on which such payment is immediately available to the
Specified Issuing Lender, multiplied by (iii) a fraction the numerator of
which is the number of days that elapse during such period and the
denominator of which is 360 for Eurocurrency Loans, or 365 or 366 for Base
Rate Loans, as applicable. A certificate of the Specified Issuing Lender
submitted to any Specified Participating Lender with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after any Specified Issuing Lender has
paid a draft under any Specified Accommodation and has received from any
Specified Participating Lender its PRO RATA share of such payment in accordance
with subsection 3.4(a), such Specified Issuing Lender receives any
reimbursement on account of such unreimbursed portion, or any payment of
interest on account thereof, the Specified Issuing Lender will pay to the
Specified Agent, for the account of such Specified Participating Lender, its PRO
RATA share thereof; PROVIDED, HOWEVER, that in the event that any such payment
received by the Specified Issuing Lender shall be required to be returned by the
Specified Issuing Lender, such Specified Participating Lender shall return to
the Specified Agent for the account of the Specified Issuing Lender, the portion
thereof previously distributed to it.
3.5 REIMBURSEMENT OBLIGATION OF THE SPECIFIED BORROWER. Each
Specified Borrower agrees to reimburse its Specified Issuing Lender on each date
on which such Specified Issuing Lender notifies such Specified Borrower of the
date and amount of a draft presented under any Specified Accommodation and paid
by the Specified Issuing Lender for the amount of (a) such draft so paid and (b)
any taxes, fees, charges or other costs or expenses incurred by the Specified
Issuing Lender in connection with such payment. Each such payment shall be made
to the Specified Issuing Lender at its address for notices specified herein in
lawful money of the currency in which such Specified Accommodation is issued and
in immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Specified Borrower under this subsection from the date
such amounts become payable until payment in full, at the rate which would be
payable on Specified Revolving Credit Loans which are Base Rate Loans,
denominated in the same currency as the relevant Specified Accommodation (or, if
there is no Base Rate available, daily Eurocurrency Rate).
3.6 OBLIGATIONS ABSOLUTE. Each Specified Borrower's
obligations under this Section 3 shall be absolute and unconditional under any
and all circumstances and irrespective of any set-off, counterclaim or defense
to payment which such Specified Borrower or any other Person may have or have
had against its Specified Issuing Lender or any beneficiary of a Specified
Accommodation. Each Specified Borrower also agrees with its Specified Issuing
Lender that such Specified Issuing Lender shall not be responsible for, and such
Specified Borrower's obligations under subsection 3.5 shall not be affected by,
among other things, the enforceability, validity or genuineness of documents or
of any endorsements thereon, even though such documents shall in fact prove to
be unenforceable, invalid, fraudulent or forged, or any dispute between or among
the Specified Borrower and any beneficiary of any Specified Accommodation or any
other
party to which such Specified Accommodation may be transferred or any
claims whatsoever of the Specified Borrower against any beneficiary of such
Specified Accommodation or any such transferee, except for errors or omissions
caused by the Specified Issuing Lender's gross negligence or wilful misconduct.
The Specified Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Specified Accommodation,
except for errors or omissions caused by the Specified Issuing Lender's gross
negligence or wilful misconduct. The Specified Borrower agrees that any action
taken or omitted by the Specified Issuing Lender under or in connection with any
Specified Accommodation or the related drafts or documents, if done in the
absence of gross negligence or wilful misconduct and in accordance with the
standards of care specified in the Uniform Commercial Code of the State of New
York, including, without limitation, Article V thereof or the standards of care
specified in the laws of the jurisdiction of the Specified Issuing Lender's
issuing office, as applicable, shall be binding on the Specified Borrower and
shall not result in any liability of such Specified Issuing Lender to the
Specified Borrower.
3.7 ACCOMMODATION PAYMENTS. If any draft shall be presented for
payment under any Specified Accommodation, the Specified Issuing Lender shall
promptly notify the Specified Borrower and the Specified Agent of the date and
amount thereof. The responsibility of the Specified Issuing Lender to the
Specified Borrower in connection with any draft presented for payment under any
Specified Accommodation shall, in addition to any payment obligation expressly
provided for in such Specified Accommodation, be limited to determining that the
documents (including each draft) delivered under such Specified Accommodation in
connection with such presentment are in conformity with such Specified
Accommodation.
3.8 LETTER OF CREDIT APPLICATIONS. To the extent that any
provision of any Specified Letter of Credit Application, including any
reimbursement provisions contained therein, related to any Specified Letter of
Credit is inconsistent with the provisions of this Section 3, the provisions of
this Section 3 shall prevail.
SECTION 4. GENERAL PROVISIONS
4.1 INTEREST RATES AND PAYMENT DATES. (a) Each Eurocurrency Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Specified Base Rate plus the Applicable Margin.
(c) Upon the occurrence and during the continuance of any Event of
Default specified in subsection 9(a), the Specified Loans and any overdue
amounts hereunder shall bear interest at a rate per annum which is (x) in the
case of the Specified Loans, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2% per annum or (y)
in the case of overdue interest, commitment fee or
other amount, the rate described in paragraph (b) (or, if no Base
Rate is available, paragraph (a) for Interest Periods of one day) of this
subsection 4.1 plus 2% per annum.
(d) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
4.2 COMPUTATION OF INTEREST AND FEES. (a) Unless otherwise
indicated in the Administrative Schedule, interest on Loans, fees, interest on
overdue interest, and other amounts payable hereunder shall be calculated, on
the basis of a 365-or 366-day year, in each case, for the actual days elapsed.
The Specified Agent shall as soon as practicable notify the Specified Borrower
and the Specified Revolving Credit Lenders or the Specified Term Loan Lenders,
as the case may be, of each determination of a Eurocurrency Rate. Any change in
the interest rate on a Specified Loan resulting from a change in the Specified
Base Rate or the Specified Eurocurrency Rate shall become effective as of the
opening of business on the day on which such change becomes effective. The
Specified Agent shall as soon as practicable notify the Specified Borrower and
the Specified Revolving Credit Lenders or the Specified Term Loan Lenders, as
the case may be, of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by a Specified Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Specified Borrower and the Specified Lenders and the other parties hereto in
the absence of manifest error. The Specified Agent shall, at the request of the
Specified Borrower, deliver to the Specified Borrower a statement showing the
quotations used by the Specified Agent in determining any interest rate pursuant
to subsection 4.1(a) or (b).
(c) If any provision of any Loan Document would oblige any
Borrower to make any payment of interest or other amount payable to any Lender
in an amount or calculated at a rate which would be prohibited by law or would
result in a receipt by that Lender of interest at such prohibited rate (as such
terms are construed under the applicable Requirement of Law), then
notwithstanding such provision, such amount or rate shall be deemed to have been
adjusted with retroactive effect to the maximum amount or rate of interest, as
the case may be, as would not be so prohibited by law or so result in a receipt
by that Lender of interest at a criminal rate, such adjustment to be effected,
to the extent necessary, as follows:
(i) firstly, by reducing the amount or rate of interest
required to be paid to the affected Lender under subsection 4.1; and
(ii) thereafter, by reducing any fees, commissions,
premiums and other amounts required to be paid to the affected Lender
which would constitute interest for purposes of any applicable
Requirement of Law.
4.3 INABILITY TO DETERMINE INTEREST RATE. If prior to the first
day of any Interest Period:
(a) the Specified Agent shall have determined (which
determination, absent manifest error, shall be conclusive and binding
upon the Specified Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Specified
Eurocurrency Rate for such Interest Period, or
(b) the Specified Agent shall have received notice from
holders of a majority of the Specified Loans subject to such Interest
Period that the Specified Eurocurrency Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Specified Lenders (as conclusively certified
by such Specified Lenders) of making or maintaining their affected
Specified Loans during such Interest Period,
the Specified Agent shall give telecopy or telephonic notice thereof to the
Specified Borrower and the Specified Lenders as soon as practicable thereafter.
If such notice is given (x) any Specified Eurocurrency Loans requested to be
made on the first day of such Interest Period shall be made as Base Rate Loans,
(y) any Specified Loans that were to have been converted on the first day of
such Interest Period to Eurocurrency Loans shall be converted to or continued as
Base Rate Loans and (z) any outstanding Specified Eurocurrency Loans shall be
converted, on the last day of the Interest Periods therefor, to Base Rate Loans.
Until such notice has been withdrawn by the Specified Agent (which the Specified
Agent agrees to do when the circumstances that prompted the delivery of such
notice no longer exist), no further Eurocurrency Loans shall be made or
continued as such, nor shall the Specified Borrower have the right to convert
such Specified Loans to Eurocurrency Loans. Notwithstanding the foregoing, until
such notice has been withdrawn by the Specified Agent (which the Specified Agent
agrees to do when the circumstances that prompted the delivery of such notice no
longer exist), if a Base Rate is not available to the Specified Borrower, any
Specified Loans or Specified Obligations or other amounts due hereunder not
subject to an Interest Period determined prior to such notice shall bear
interest at a rate determined from time to time by the Specified Agent to be its
cost of maintaining its share of such Specified Loans, Specified Obligations or
other amounts plus the Applicable Margin and any overdue percentage (to the
extent chargeable at such time) pursuant to subsection 4.1(c).
4.4 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing,
conversion or continuation pursuant to subsection 2.10, of Specified Loans
(other than Specified Swing Line Loans) by a Specified Borrower from the
Specified Lenders and any reduction of the Specified Commitments of the
Specified Lenders hereunder shall be made PRO RATA according to the respective
principal amounts of such Specified Loans held by the Specified Lenders or the
respective Specified Commitments of the Specified Lenders, as the case may be.
(b) Whenever (i) any payment received by a Specified Agent under
this Agreement or any Specified Note or (ii) any other amounts received by such
Specified Agent for or on behalf of the Specified Borrower (including, without
limitation, proceeds of collateral or payments under any guarantee) is
insufficient to pay in full all amounts then due and payable to such Specified
Agent and the Specified Lenders under this Agreement and any Specified Note and
the other Loan Documents, such payment shall be distributed by the Specified
Agent and applied by the Specified Agent and the Specified Lenders in the
following order: FIRST, to the payment of fees and expenses due and payable to
the Specified Agent under and in connection with this Agreement and the other
Specified Loan Documents; SECOND, to the payment of all expenses due and payable
under subsection 12.5, ratably among the Specified Agent and the Specified
Lenders in accordance with the aggregate amount of such payments owed to the
Specified Agent and each such Specified Lenders; THIRD, to the payment of fees
due and payable under subsections 2.3 and 3.3(a) (which, in the case of the
Specified Lenders, shall be distributed ratably among such Lenders in accordance
with the Specified Revolving Credit Commitment Percentage of each such Lender
and, in the case of the Specified Issuing Lender, the amount retained by such
Specified Issuing Lender for its own account pursuant to subsection 3.3(a)) and
to the payment of interest then due and payable under the Specified Loans,
ratably in accordance with the aggregate amount of interest and fees owed to
each such Specified Lender; FOURTH, to the payment of the principal amount of
the Specified Loans and the Specified Accommodation Obligations (including any
amounts required to be cash collateralized) then due and payable and, in the
case of proceeds of collateral or payments under any guarantee, to the payment
of any other Obligations to any Secured Party Lender not covered in First
through Third above ratably secured by such collateral or ratably guaranteed
under any such guarantee, ratably among the Secured Parties Lenders in
accordance with the aggregate principal amount and, in the case of proceeds of
collateral or payments under any guarantee, the obligations secured or
guaranteed thereby owed to each such Specified Lender.
(c) If any Specified Revolving Credit Lender (a "NON-FUNDING
LENDER") has (x) failed to make a Specified Revolving Credit Loan required to be
made by it hereunder, and the Specified Agent has determined that such Specified
Lender is not likely to make such Specified Loan or (y) given notice to the
Specified Borrower or the Specified Agent that it will not make, or that it has
disaffirmed or repudiated any obligation to make, any Specified Loans, any
payment made on account of the principal of the Specified Loans outstanding
shall be made as follows:
(i) in the case of any such payment made on any date when and
to the extent that, in the determination of the Specified Agent, the
Specified Borrower would be able, under the terms and conditions
hereof, to reborrow the amount of such payment under the Specified
Commitments and to satisfy any applicable conditions precedent set
forth in subsection 6.2 to such reborrowing, such payment shall be made
on account of the outstanding Specified Revolving Credit Loans held by
the Specified Lenders other than the Non-Funding Lender PRO RATA
according to the outstanding principal amounts of the Specified
Revolving Credit Loans of such Specified Lenders;
(ii) otherwise, such payment shall be made on account of the
outstanding Specified Revolving Credit Loans held by the Specified
Revolving Credit Lenders PRO RATA according to the respective
outstanding principal amounts of such Loans; and
(iii) any payment made on account of interest on the Specified
Revolving Credit Loans shall be made PRO RATA according to the
respective amounts of accrued and unpaid interest due and payable on
such Loans with respect to which such payment is being made.
The Specified Borrower agrees to give the Specified Agent such assistance in
making any determination pursuant to this paragraph as the Specified Agent may
reasonably request.
Any such determination by the Specified Agent shall be conclusive and binding on
the Specified Lenders.
(d) All payments (including prepayments) to be made by a Specified
Borrower on account of principal, interest and fees shall be made without
set-off or counterclaim and shall be made to its Specified Agent, for the
account of the Specified Lenders at the Specified Agent's office listed in
subsection 12.2 or in the Administrative Schedule, in the currency in which such
amounts are denominated and in immediately available funds. The Specified Agent
shall promptly distribute such payments in accordance with the provisions of
subsections 4.4(b) and (c) promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on the Eurocurrency Loans) would
become due and payable on a day other than a Business Day, such payment shall
become due and payable on the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be payable at the applicable rate
during such extension. If any payment on a Eurocurrency Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension), unless the result of such extension would be to extend such
payment into another calendar month in which event such payment shall be made on
the immediately preceding Business Day.
(e) A payment shall be deemed to have been made by the Specified
Agent on the date on which it is required to be made under this Agreement if the
Specified Agent has, on or before that date, taken all relevant steps to make
that payment. With respect to the payment of any amount denominated in euro, the
Euro Agent shall not be liable to the Euro Borrower or any of the Euro Lenders
in any way whatsoever for any delay, or the consequences of any delay, in the
crediting to any account of any amount required by this Agreement to be paid by
the Specified Agent if the Specified Agent shall have taken all relevant steps
to achieve, on the date required by this Agreement, the payment of such amount
in immediately available, freely transferable, cleared funds in the euro unit to
the account with the bank in the principal financial center in the Participating
Member State which the Euro Borrower or, as the case may be, any Euro Lender
shall have specified for such purpose. In this paragraph (e), "all relevant
steps" means all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or settlement system as the
Euro Agent may from time to time determine for the purpose of clearing or
settling payments of euro.
(f) Unless the Specified Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Specified Lender will
not make the amount that would constitute its relevant Ratable Portion of the
Specified Loans on such date available to the Specified Agent, the Specified
Agent may assume that such Specified Lender has made such amount available to
the Specified Agent on such Borrowing Date, and the Specified Agent may, in
reliance upon such assumption, make available to the Specified Borrower a
corresponding amount. If such amount is made available to the Specified Agent on
a date after such Borrowing Date, such Specified Lender shall
pay to the Specified Agent on demand an amount equal to the product of (i) the
daily average Base Rate (or, if a Base Rate is not available to such Specified
Borrower, a Eurocurrency Rate with an Interest Period of one day) during such
period, times (ii) the amount of such Specified Lender's relevant Ratable
Portion of such Specified Loans, times (iii) a fraction
the numerator of which is the number of days that elapse from and
including such Borrowing Date to the date on which such Specified Lender's
relevant Ratable Portion of such Specified Loans shall have become immediately
available to the Specified Agent and the denominator of which is 365/366 or 360,
as applicable. A certificate of the Specified Agent submitted to any Specified
Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Specified Lender's relevant
Ratable Portion of such Specified Loans is not in fact made available to the
Specified Agent by such Specified Lender within three (3) Business Days of such
Borrowing Date, the Specified Agent shall be entitled to recover such amount
with interest thereon at the rate per annum applicable to Base Rate Loans
denominated in the relevant currency (or, if a Base Rate is not available to the
Specified Borrower, a Eurocurrency Rate with an Interest Period of one day), on
demand, from the Specified Borrower. The failure of any Specified Lender to make
any Specified Loan to be made by it shall not relieve any other Specified Lender
of its obligation, if any, hereunder to make its Specified Loan on such
Borrowing Date, but no Specified Lender shall be responsible for the failure of
any other Specified Lender to make the Specified Loan to be made by such other
Specified Lender on such Borrowing Date.
(g) Any amount payable by the Specified Agent to the Specified
Lenders under this Agreement in the currency of a Participating Member State
shall be paid in the euro unit.
(h) If, in relation to the currency of any Subsequent Participant,
the basis of accrual of interest or fees expressed in this Agreement with
respect to such currency shall be inconsistent with any convention or practice
in the London Interbank Market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such Subsequent Participant
becomes a Participating Member State; PROVIDED, that if any Loan in the currency
of such Subsequent Participant is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Loan, at the end of the
then current Interest Period.
(i) Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU Legislation and (i) without prejudice to the
respective liabilities for indebtedness of the Specified Borrowers to the
Specified Lenders and the Specified Lenders to the Specified Borrowers under or
pursuant to this Agreement and (ii) without increasing the Specified Revolving
Credit Commitment of any Specified Lender:
(i) the Revolving Credit Commitments and each reference
in this Agreement to a minimum amount (or an integral multiple
thereof) in a national currency denomination of a Subsequent
Participant to be paid to or by the Specified Agent shall,
immediately upon such Subsequent Participant becoming a
Participating Member State, be replaced by a reference to such
reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Specified Agent may from
time to time specify; and
(ii) except as expressly provided in this subsection 4.4,
each provision of this Agreement shall be subject to such
reasonable changes of construction as the Specified Agent may from
time to time specify to be necessary or appropriate to
reflect the adoption of the euro in any Participating Member
State and any relevant market conventions or practices
relating to the euro.
4.5 ILLEGALITY. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Specified Lender to make
or maintain Eurocurrency Loans as contemplated by this Agreement, (a) the
commitment of such Specified Lender hereunder to make Eurocurrency Loans,
continue Eurocurrency Loans as such, and convert Base Rate Loans to Eurocurrency
Loans, as applicable, shall forthwith be cancelled and (b) such Specified
Lender's Loans then outstanding as Eurocurrency Loans, if any, shall be
converted automatically to Specified Base Rate Loans on the respective last days
of the then current Interest Periods with respect to such Specified Loans or
within such earlier period as required by law; PROVIDED that before making any
such demand, each Specified Lender agrees to 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, in its reasonable discretion,
in any legal, economic or regulatory manner) to designate a different lending
office if the making of such a designation would allow the Specified Lender or
its lending office to continue to perform its obligations to make Eurocurrency
Loans. If any such conversion of a Eurocurrency Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Specified Borrower shall pay to such Specified Lender such amounts, if any, as
may be required pursuant to subsection 4.8. If circumstances subsequently change
so that any affected Lender shall determine that it is no longer so affected,
such Specified Lender will promptly notify the Specified Borrower and the
Specified Agent, and upon receipt of such notice, the obligations of such
Specified Lender to make or continue Eurocurrency Loans or to convert Base Rate
Loans into Eurocurrency Loans, as applicable, shall be reinstated.
Notwithstanding the foregoing, until such notice has been withdrawn by the
Specified Lender (which the Specified Lender agrees to do when the circumstances
that prompted the delivery of such notice no longer exist), if a Base Rate is
not available to the Specified Borrower, any Specified Loans or Specified
Obligations or other amounts due hereunder not subject to an Interest Period
determined prior to such notice shall bear interest at a rate determined from
time to time by the Specified Lender to be its cost of maintaining its share of
such Specified Loans, specified Obligations or other amounts plus the Applicable
Margin and any applicable overdue percentage pursuant to subsection 4.1(c).
4.6 REQUIREMENTS OF LAW. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Specified Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority
made subsequent to the date hereof:
(i) shall subject any Specified Lender to any tax of
any kind whatsoever with respect to this Agreement, any Specified
Eurocurrency Loan, any Specified Note, any Specified Accommodation,
Letter of Credit Application, or change the basis of taxation of
payments to such Specified Lender in respect thereof (except for taxes
covered by subsection 4.7 and the establishment of a tax based on the
net income of such Specified Lender or changes in the rate of tax on
the net income of such Specified Lender);
Exhibit 10.1_C
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit (including, without
limitation, letters of credit or bankers acceptances) by, or any other
acquisition of funds by, any office of such Lender; or
(iii) shall impose on such Specified Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Specified
Lender, by an amount which such Specified Lender reasonably deems to be
material, of making, converting into, continuing or maintaining Eurocurrency
Loans or to increase the cost to such Specified Lender, by an amount which such
Specified Lender reasonably deems to be material, of issuing or maintaining any
Specified Accommodation or participation therein or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Specified
Borrower shall promptly pay such Specified Lender, upon its written demand and
presentation of supporting calculations and any reasonably available supporting
documentation, any additional amounts necessary to compensate such Specified
Lender for such increased cost or reduced amount receivable, PROVIDED, in
respect of Accommodations and Eurocurrency Loans, that before making any such
demand, each Specified Lender agrees to 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, in its reasonable discretion, in any
legal, economic or regulatory manner) to designate a different Accommodation
lending office or a different Eurocurrency lending office, as the case may be,
if the making of such designation would allow the Specified Lender, its
Eurocurrency Loan lending office, or its Accommodation lending office, as the
case may be, to continue to perform its obligations to make Accommodations or
Eurocurrency Loans, as applicable, or to continue to fund or maintain
Accommodations or Eurocurrency Loans, as applicable, and avoid the need for, or
materially reduce the amount of, such increased cost. If any Specified Lender
becomes entitled to claim any additional amounts pursuant to this subsection, it
shall promptly notify (in any event no later than ninety (90) days after such
Specified Lender becomes entitled to make such claim) the Specified Borrower in
writing, through the Specified Agent, of the event by reason of which it has
become so entitled. Such demand shall be accompanied by a statement summarizing
the basis for the additional amounts payable under this subsection including
reasonably detailed calculations of such additional amounts. Such statement
submitted by such Specified Lender, through the Specified Agent, to the
Specified Borrower shall be conclusive in the absence of manifest error. If the
Specified Borrower so notifies the Specified Agent within five (5) Business Days
after any Specified Lender notifies the Specified Borrower of any increased cost
pursuant to the foregoing provisions of this subsection 4.6, the Specified
Borrower may convert all Eurocurrency Loans of such Specified Lender then
outstanding into Base Rate Loans if a Base Rate option is available in
accordance with subsection 2.10 and, additionally, reimburse such Specified
Lender for any cost in accordance with subsection 4.8. This covenant shall
survive the termination of this Agreement and the payment of the Specified Loans
and all other amounts payable hereunder.
(b) If any Specified Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Specified
Lender or any corporation
controlling such Specified Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof does or shall have
the effect of reducing the rate of return on such Specified Lender's or such
corporation's capital as a consequence of its obligations hereunder or under
any Specified Accommodation to a level below that which such Specified Lender
or such corporation could have achieved but for such change or compliance
(taking into consideration such Specified Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Specified Lender to be material, then from time to time, after
submission by such Specified Lender to the Specified Borrower (with a copy to
the Specified Agent) of a prompt written request therefor and presentation of
supporting calculations and any reasonably available supporting
documentation, the Specified Borrower shall pay to such Specified Lender such
additional amount or amounts as will compensate such Specified Lender for
such reduction. This c ovenant shall survive the termination of this
Agreement and the payment of the Specified Loans and all other amounts
payable hereunder.
4.7 TAXES. (a) Except as provided below in this subsection,
all payments made by each Specified Borrower under this Agreement and any
Specified Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any Specified
Governmental Authority, excluding net income taxes, franchise taxes imposed in
lieu of net income taxes, and branch profits taxes imposed on any Specified
Agent or any Specified Lender as a result of a present or former connection
between such Specified Agent or such Specified Lender and the jurisdiction of
the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from such Agent or such Specified Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("NON-EXCLUDED
TAXES") are required by law to be withheld from any amounts payable to the
Specified Agent or any Specified Lender hereunder or under any Specified Notes,
the amounts so payable to the Specified Agent or such Specified Lender shall be
increased to the extent necessary to yield to the Specified Agent or such
Specified Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Agreement and any Specified Notes, PROVIDED, HOWEVER, that the Specified
Borrower shall be entitled to deduct and withhold any Non-Excluded Taxes and
shall not be required to increase any such amounts payable to any Specified
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such
Specified Lender's failure to comply with the requirements of paragraphs (b),
(c) or (d) of this subsection 4.7, (ii) that are United States withholding taxes
imposed on amounts payable to a US Lender either at the time the US Lender
becomes a party to this Agreement or as a result of an event occurring after the
US Lender becomes a US Lender other than a change in law or regulation or the
introduction of any law or regulation or a change in interpretation or
administration of any law, except to the extent that such US Lender's assignor
(if any) was entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such Non-Excluded Taxes pursuant to Section
4.7(a) or (iii) that are United Kingdom withholding taxes imposed on amounts
payable to an English Lender either at the time the English Lender becomes a
party to this Agreement
or as a result of an event occurring after the English Lender becomes a English
Lender other than a change in law or regulation or the introduction of any law,
except to the extent that such English Lender's assignor (if any) was entitled
at the time of assignment, to receive additional amounts from the Borrower with
respect to such Non-Excluded Taxes pursuant to Section 4.7(a). Whenever any
Non-Excluded Taxes are payable by the Specified Borrower, as promptly as
possible thereafter the Specified Borrower shall send to the Specified Agent for
its own account or for the account of such Specified Lender, as the case may be,
a certified copy of an original official receipt received by the Specified
Borrower showing payment thereof. If the Specified Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Specified Agent the required copies of receipts or other required
documentary evidence, the Specified Borrower shall indemnify the Specified Agent
and the Specified Lenders for any incremental taxes, interest or penalties that
may become payable by the Specified Agent or any Specified Lender as a result of
any such failure. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Specified Loans and all
other amounts payable hereunder.
(b) With respect to US Lenders, each US Lender that is not a
United States Person as defined in Section 7701(a)(30) of the Code shall:
(i) in the case of any such US Lender other than a US
Lender described in clause (ii) of this subsection:
(x) on or before the date of any payment by
the US Borrower under this Agreement or any Notes to
such US Lender, deliver to the US Borrower and the
Administrative Agent (A) two duly completed copies of
United States Internal Revenue Service ("IRS") Form
1001 or 4224, or successor applicable form, as the
case may be, certifying that it is entitled to
receive payments under this Agreement and any Notes
without any deduction or withholding of any United
States federal income taxes or at a reduced rate and
(B) a duly completed IRS Form W-8 or W-9, or
successor applicable form, as the case may be,
certifying that it is entitled to an exemption from
United States backup withholding tax;
(y) deliver to the US Borrower and the
Administrative Agent two further copies of any such
form or certification on or before the date that any
such form or certification expires or becomes
obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the US Borrower; and
(z) obtain such extensions of time for
filing and complete such forms or certifications as
may reasonably be requested by the US Borrower or the
Administrative Agent; or
(ii) in the case of any such US Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code
and that does not comply with sub-paragraph (i) of this
paragraph (b),
(x) represent to the US Borrower (for the
benefit of the US Borrower and the Administrative
Agent) that it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code and deliver to the
US Borrower on or before the date of any payment by
the US Borrower, with a copy to the Administrative
Agent, (A) a certificate stating that such US Lender
(1) is not a "bank" under Section 881(c)(3)(A) of the
Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has
not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to
any Governmental Authority, any application made to a
rating agency or qualification for any exemption from
tax, securities law or other legal requirements, (2)
is not a 10-percent shareholder within the meaning of
Section 881(c)(3)(B) of the Code and (3) is not a
controlled foreign corporation receiving interest
from a related person within the meaning of Section
881(c)(3)(C) of the Code (any such certificate a
"U.S. TAX COMPLIANCE CERTIFICATE") and (B) two duly
completed copies of IRS Form W-8, or successor
applicable form, certifying to such US Lender's legal
entitlement at the date of such certificate to an
exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect
to payments to be made under this Agreement and any
US Notes;
(y) deliver to the US Borrower and the
Administrative Agent two further copies of IRS Form
W-8 on or before the date it expires or becomes
obsolete and after the occurrence of any event
requiring a change in the most recently provided form
and, if necessary, obtain any extensions of time
reasonably requested by the US Borrower or the
Administrative Agent for filing and completing such
forms; and
(z) agree, to the extent legally entitled to
do so, upon reasonable request by the US Borrower, to
provide to the US Borrower (for the benefit of the US
Borrower and the Administrative Agent) such other
forms as may be reasonably required in order to
establish the legal entitlement of such US Lender to
an exemption from withholding with respect to
payments under this Agreement and any Notes.
Each Person that shall become a US Lender or a Specified Participant pursuant to
subsection 12.6 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms, certifications and statements required
pursuant to this subsection; provided that in the case of a Specified
Participant the obligations of such Specified Participant pursuant to this
paragraph (b) shall be determined as if such Specified Participant were a US
Lender except that such Specified Participant shall furnish all such required
forms, certifications and statements to the US Lender from which the related
participation shall have been purchased. Each US Lender shall promptly notify
the
Borrower at any time it determines that it is no longer in a position to provide
any previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this Section 4.7(b), a US Lender shall
not be required to deliver any form pursuant to this Section 4.7(b) that such US
Lender is not legally able to deliver.
(c) Each Specified Lender shall, upon request by the Specified
Borrower, deliver to the Specified Borrower or the applicable Governmental
Authority, as the case may be, any form or certificate required in order that
any payment by the Specified Borrower under this Agreement or any Specified
Notes may be made free and clear of, and without deduction or withholding for or
on account of any Non-Excluded Taxes (or to allow any such deduction or
withholding to be at a reduced rate) imposed on such payment under the laws of
any jurisdiction, PROVIDED that such Specified Lender is legally entitled to
complete, execute and deliver such form or certificate and such completion,
execution or submission would not materially prejudice the legal position of
such Specified Lender.
(d) Each English Lender represents to English Borrower that at
the date hereof it is either (i) a bank as defined in Section 840A of the Income
and Corporation Taxes Act of 1988 and is within the charge to United Kingdom
corporation tax in respect of all interest received by it under this Agreement
or (ii) entitled by virtue of an applicable double tax treaty to claim such
exemption or relief from United Kingdom income tax as will allow interest
payments hereunder by the English Borrower to be made to it free and clear of
all taxes imposed by United Kingdom and has filed such a claim including all of
the appropriate supporting documents and a gross payment direction will be or
should be, issued in due course to English Borrower by the Inland Revenue.
Notwithstanding anything in this agreement to the contrary, no English Lender
shall be entitled to payments under subsection 4.7(a) pending the issuance of a
gross payment direction under this clause (ii). Notwithstanding any other
provision of this Section 4.7(d), an English Lender shall not be required to
deliver any form pursuant to this Section 4.7(d) that such English Lender is not
legally able to deliver.
(e) If the Specified Agent or Specified Lender receives a
refund in respect of Non-Excluded Taxes paid by the Specified Borrower, which in
the good faith judgment of such Specified Lender is allocable to such payment,
it shall promptly pay such refund, together with any other amounts paid by the
Specified Borrower in connection with such refunded Non-Excluded Taxes, to the
Specified Borrower, net of all reasonable out-of-pocket expenses of such
Specified Lender incurred in obtaining such refund, PROVIDED, HOWEVER, that the
Specified Borrower agrees to promptly return such refund to the Specified Agent
or the Specified Lender as the case may be, if it receives notice from the
Specified Agent or Specified Lender that such Specified Agent or Specified
Lender is required to repay such refund.
4.8 INDEMNITY. Each Specified Borrower agrees to indemnify
each Specified Lender and to hold each Specified Lender harmless from any loss
or expense which such Specified Lender sustains or incurs as a consequence of
(a) default by the Specified Borrower in payment when due of the principal
amount of or interest on any Eurocurrency Loan, (b) default by the Specified
Borrower in making a borrowing of, conversion into or continuation of
Eurocurrency Loans after the Specified Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (c)
default by the Specified Borrower in making any prepayment after the Specified
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (d) the making of a prepayment of Eurocurrency Loans on a day which
is not the last day of an Interest Period with respect thereto, including,
without limitation, in each case, any such loss or expense (but excluding loss
of margin) arising from the reemployment of funds obtained by it or from fees
payable to terminate the deposits from which such funds were obtained.
Calculation of all amounts payable to a Specified Lender under this subsection
4.8 shall be made as though such Specified Lender had actually funded its
relevant Eurocurrency Loan through the purchase of a deposit bearing interest at
the Eurocurrency Rate in an amount equal to the amount of such Eurocurrency Loan
and having a maturity comparable to the relevant Interest Period; PROVIDED,
HOWEVER, that each Specified Lender may fund each of its Eurocurrency Loans in
any manner it sees fit, and the foregoing assumption shall be utilized only for
the calculation of amounts payable under this subsection 4.8. This covenant
shall survive the termination of this Agreement and the payment of the Specified
Loans and all other amounts payable hereunder for a period of nine (9) months
thereafter.
4.9 REPLACEMENT OF SPECIFIED LENDER. If at any time (a) the
Specified Borrower becomes obligated to pay additional amounts described in
subsections 4.5, 4.6 or 4.7 as a result of any condition described in such
subsections or any Specified Lender ceases to make Eurocurrency Loans
pursuant to subsection 4.5, (b) any Specified Lender becomes insolvent and
its assets become subject to a receiver, liquidator, trustee, custodian or
other Person having similar powers, (c) any Specified Lender becomes a
"Non-Funding Lender" or (d) any Specified Lender fails to comply with an
amendment, waiver or modification to this Agreement or the other Loan
Documents which has been approved by the Required Lenders (or any different
requisite amount of Lenders as provided herein), then the Specified Borrower
may, on three (3) Business Days' prior written notice to the Specified Agent
and such Specified Lender, replace such Specified Lender by causing such
Specified Lender to (and such Specified Lender shall) assign pursuant to
subsection 12.6(c) all of its rights and obligations under this Agreement to
a Specified Lender or other entity selected by the Specified Borrower and
acceptable to the Specified Agent for a purchase price equal to the
outstanding principal amount of such Lender's Specified Loans and all accrued
interest and fees and other amounts payable hereunder; PROVIDED that (i) no
Specified Borrower shall have the right to replace its Specified Agent (in
its capacity as such), (ii) no Specified Agent or Specified Lender shall have
any obligation to any Specified Borrower to find a replacement Specified
Lender or other such entity, (iii) in the event of a replacement of a
Specified Lender to which the Specified Borrower becomes obligated to pay
additional amounts pursuant to clause (a) of this subsection 4.9, in order
for the Specified Borrower to be entitled to replace such a Specified Lender,
such replacement must take place no later than six (6) months after the
Specified Lender shall have demanded payment of additional amounts under one
of the subsections described in clause (a) of this subsection 4.9, as the
case may be, and (iv) in no event shall the Specified Lender hereby replaced
be required to pay or surrender to such replacement Specified Lender or other
entity any of the fees received by such Specified Lender hereby replaced
pursuant to this Agreement. In the case of a replacement of a Specified
Lender to which the Specified Borrower becomes obligated to pay additional
amounts pursuant to clause (a) of this subsection 4.9, the Specified Borrower
shall pay such additional amounts to such Specified Lender prior to such
Specified Lender being replaced and the payment of such additional amounts
shall be a
condition to the replacement of such Specified Lender. The Specified Borrower's
right to replace a Non-Funding Lender pursuant to this subsection 4.9 is, and
shall be, in addition to, and not in lieu of, all other rights and remedies
available to the Specified Borrower against such Non-Funding Lender under this
Agreement, at law, in equity, or by statute.
4.10 REDENOMINATION AND ALTERNATIVE CURRENCIES. Each
obligation under this Agreement of a party to this Agreement which has been
denominated in the National Currency Unit of a Subsequent Participant state
shall be redenominated into the euro unit in accordance with EMU Legislation
immediately upon such Subsequent Participant becoming a Participating Member
State (but otherwise in accordance with EMU Legislation).
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make their respective Loans and to issue and participate in
Accommodations, each Borrower, only as to itself and its Subsidiaries, hereby
represents and warrants to the Agents and each Lender that:
5.1 FINANCIAL CONDITION. (a) The audited consolidated
financial statements of the US Borrower (or its predecessor) and its
Subsidiaries for the period from April 2, 1996 through December 31, 1996 and the
fiscal years ended December 31, 1997 and December 31, 1998, copies of which have
been furnished to each Lender, have been prepared using accounting methods,
procedures and policies which are in accordance with GAAP and present fairly in
all material respects the financial positions of the US Borrower, its
predecessors and its Subsidiaries on a consolidated basis, in each case, as at
the dates thereof, and the results of operations and statements of cash flows
for the periods then ended. The unaudited consolidated balance sheet of the US
Borrower and its Subsidiaries as at March 31, 1999, and the related unaudited
consolidated statements of income and cash flows for the three-month period
ended on such date, present fairly in all material respects the consolidated
financial condition of the US Borrower and its Subsidiaries as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the three-month period then ended (subject to normal year-end audit adjustments
and the absence of footnotes). Neither the US Borrower nor any of its
Subsidiaries had, as at the date of the most recent balance sheet referred to
above, any Guarantee Obligation, contingent liability or liability for taxes, or
any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction, which in any such case is material and is not reflected in the
foregoing statements or in the notes thereto and which has any reasonable
likelihood of resulting in a material cost or loss.
(b) The audited consolidated financial statements of the
English Borrower and its Subsidiaries for fiscal years ended March 31, 1996,
March 31, 1997 and March 31, 1998, copies of which have been furnished to
each Lender, have been prepared using accounting methods, proceduresand
policies which are in accordance with GAAP applied on a basis consistent with
that of prior years and present fairly in all material respects the financial
positions of the English Borrower and its Subsidiaries on a consolidated
basis, in each case, as at the dates thereof, and the results of operations
and statements of cash flows for the periods then ended. Neither the English
Borrower nor any of its Subsidiaries
had, as at the date of the most recent balance sheet referred to above, any
Guarantee Obligation, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which in any such case is material and is not reflected in the foregoing
statements or in the notes thereto and which has any reasonable likelihood of
resulting in a material cost or loss.
(c) The PRO FORMA balance sheet of US Borrower and its
Subsidiaries (the "US BORROWER PRO FORMA BALANCE SHEET"), certified by a
Responsible Officer of US Borrower, copies of which have been heretofore
furnished to each Lender, is the audited balance sheet of US Borrower as at
December 31, 1998, adjusted to give effect to (i) the Transactions and (ii) the
financings contemplated by this Agreement. The US Borrower Pro Forma Balance
Sheet was prepared based on good faith assumptions and is based on the best
information available to US Borrower as of the date of delivery thereof, and
reflects on a PRO FORMA basis the financial position of US Borrower and its
combined Subsidiaries as at the Closing Date. Neither the US Borrower nor any of
its Subsidiaries had, as at the date of the US Borrower Pro Forma Balance Sheet,
any material Guarantee Obligation, contingent liability or, to the best
knowledge of the US Borrower, liability for taxes, or any long-term lease or
unusual forward or long-term commitment which is not reflected in the US
Borrower Pro Forma Balance Sheet and which has any reasonable likelihood of
resulting in a material cost or loss.
5.2 NO CHANGE. Since December 31, 1998, there has been no
Material Adverse Change.
5.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. US Borrower and
each of its Subsidiaries (a) is duly organized, validly existing or validly
subsisting and, in the case of the US Borrower, its Domestic Subsidiaries and
any of its Foreign Subsidiaries organized in a jurisdiction where such concept
is applicable, in good standing, as the case may be, under the laws of the
jurisdiction of its organization or incorporation, (b) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation or other
entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except to the extent that the failure to so qualify
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Affect.
5.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Credit
Partyhas the power and authority, and the legal right, to make, deliver and
perform this Agreement, any of the Specified Notes and the other Specified Loan
Documents to which it is a party and, with respect to each Specified Borrower,
to borrow hereunder and has taken all necessary action to authorize the
borrowings on the terms and conditions of, or the granting of any security
interests under, this Agreement and any of the Specified Notes and the other
Specified Loan Documents and to authorize the execution, delivery and
performance of this Agreement, any of the Specified Notes and the other
Specified Loan Documents to which it is a party. No consent or authorization of,
filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings under this Agreement or with the
execution, delivery, performance, validity or enforceability of, or the granting
of any security interests under, this Agreement, any of the Specified Notes or
the other Specified Loan Documents to which any Credit Party is a party, except
for (i) those which have been or will be made or taken and are or will be in
full force and effect, (ii) consents under immaterial Contractual Obligations or
other immaterial consents or (iii) those filings and notices referred to
subsection 5.20(d). This Agreement, any Specified Note and each of the other
Specified Loan Documents has been duly executed and delivered on behalf of the
Credit Party party thereto. This Agreement, any Specified Note and each of the
other Specified Loan Documents constitutes a legal, valid and binding obligation
of the Credit Party party thereto enforceable against such Credit Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
5.5 NO LEGAL BAR. The execution, delivery and performance of
this Agreement, any of the Notes and the other Loan Documents, the borrowings
hereunder and thereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any material Contractual Obligation of any Credit
Party or of any of their Subsidiaries.
5.6 NO MATERIAL LITIGATION. Except as set forth in Schedule
5.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of any Specified
Borrower, threatened by or against any of the Credit Parties or any of their
Subsidiaries or against any of their respective properties or revenues (a) with
respect to this Agreement, the other Loan Documents, or any of the transactions
contemplated hereby or thereby, (b) with respect to any Transaction Document or
any transactions contemplated thereby, which affects any material provision or
any material transaction contemplated thereby, or (c) which could reasonably be
expected to have a Material Adverse Effect.
5.7 NO DEFAULT. None of the Credit Parties or any of their
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
5.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Credit Parties
and their Subsidiaries (a) in respect of property situated in the United States,
has good and valid title or title in fee simple to, as applicable, or a valid
leasehold interest in, all its material real and immovable property, and good
title to, or a valid leasehold interest in, all its other material property and
(b) in respect of property situated outside the United States, is the legal and
beneficial owner of all its material property, and none of such property
referred to in clauses (a) and (b) hereof is subject to any Lien except as
permitted by subsection 8.3. As of the date hereof, the Fee Properties as listed
on Part I of Schedule 5.19 constitute all the real and immovable properties (y)
in respect of property situated in the United States, owned by good and valid
title or title in fee simple and (z) in respect of property situated outside the
United States, legally or beneficially owned, as applicable, by
the US Borrower or its Subsidiaries and the Leased Properties as listed on Part
II of Schedule 5.19 constitute all of the real and immovable properties leased
by the US Borrower or its Subsidiaries. As of the date hereof, each of the
Leased Properties listed on Part II of Schedule 5.19 which may be made subject
to a recorded Lien without violating the terms of the applicable Underlying
Lease, and each lease agreement under which an interest in any material Leased
Property is held (as amended, an "UNDERLYING LEASE") is in full force and
effect.
5.9 INTELLECTUAL PROPERTY. Each of the Credit Parties and
their Subsidiaries owns, or is validly licensed to use, all trademarks,
tradenames, copyrights, technology, know-how and processes necessary for the
conduct of its business as currently conducted except for those the failure to
own or license which could not reasonably be expected to have a Material Adverse
Effect (the "INTELLECTUAL PROPERTY"). Except as set forth on Schedule 5.9, no
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property which could reasonably be expected to have a
Material Adverse Effect, nor do the Credit Parties know of any valid basis for
any such claim which could reasonably be expected to have a Material Adverse
Effect. To the best of the Credit Parties' knowledge, the use of such
Intellectual Property by the Credit Parties and their Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
5.10 TAXES. Except as set forth in Schedule 5.10, each of the
Credit Parties and their Subsidiaries has filed or caused to be filed all
federal and all other material tax returns which, to the knowledge of the Credit
Parties, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other material taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than (i) any such
taxes, assessments, fees, or other charges the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Credit Parties or their Subsidiaries, as the case may be, and (ii)
taxes, assessments, fees or other charges imposed by any Governmental Authority,
other than income taxes imposed by any Governmental Authority, with respect to
which the failure to make payments could not, by reason of the amount thereof or
of remedies available to such Governmental Authorities, reasonably be expected
to have a Material Adverse Effect); no tax Lien has been filed, and, to the
knowledge of the Credit Parties, no claim is being asserted, with respect to any
such tax, fee or other charge other than those being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Credit Parties or their
Subsidiaries, as the case may be.
5.11 US FEDERAL REGULATIONS. No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulations T, U or X as
now and from time to time hereafter in effect or for any purpose which violates
the provisions of the Regulations of the Board. If requested by any US Lender or
the Administrative Agent, the US Borrower will furnish to the Specified Agent
and each Specified Lender a statement to the foregoing
effect in conformity with the requirements of FR Form U-1 or G- 3 referred to in
said Regulation U.
5.12 ERISA. Except where the liability, individually or in the
aggregate, which could reasonably be expected to result has not had or could not
reasonably be expected to have a Material Adverse Effect: (i) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (ii) each Plan (other than
a Multiemployer Plan) has complied in all material respects with the applicable
provisions of ERISA and the Code; (iii) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Single Employer Plan has
arisen and remains outstanding, during such five-year period; (iv) the present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by an amount which could reasonably be expected to have a Material Adverse
Effect; (v) none of the Credit Parties nor any Commonly Controlled Entity has
had a complete or partial withdrawal from any Multiemployer Plan, and, to the
best knowledge of the Credit Parties, none of the Credit Parties nor any
Commonly Controlled Entity would become subject to any liability under ERISA if
the Credit Parties or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made; (vi) no
such Multiemployer Plan is in Reorganization or Insolvent; and (vii) the present
value (determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Credit Parties and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA) does
not, in the aggregate, exceed the assets under all such Plans allocable to such
benefits.
5.13 INVESTMENT COMPANY ACT. Neither the US Borrower nor any
of its Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.14 SUBSIDIARIES, ETC. As of the date hereof, the only
Subsidiaries of the US Borrower, and the only partnerships, limited liability
companies or other joint ventures in which the US Borrower or any of its
Subsidiaries has an interest are those listed on Schedule 5.14. As of the date
hereof, the US Borrower owns the percentage of the Capital Stock or other
evidences of the ownership of each Subsidiary, partnership, limited liability
company or other joint venture listed on Schedule 5.14 as set forth on such
Schedule. As of the date hereof, no such Subsidiary, partnership, limited
liability company, or other joint venture has issued any securities convertible
into shares of its Capital Stock, and the outstanding stock and securities (or
other evidence of ownership) of such Subsidiaries, partnerships, limited
liability companies, or other joint ventures owned by the US Borrower and its
Subsidiaries are so owned free and clear of all Liens, warrants, options or
rights of others of any kind except as set forth in Schedule 5.14.
5.15 ENVIRONMENTAL MATTERS. Except as disclosed on Schedule
5.15 hereto:
(a) The facilities and properties owned, leased or operated by
the US Borrower or any of its Subsidiaries (the "PROPERTIES") do not contain,
and have not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under such conditions which (i) constitute or
constituted a violation of, or could reasonably be expected to give rise to
liability under, any Environmental Law in effect at the time of the making of
this representation, or (ii) could materially and adversely interfere with the
continued operation of the Properties, or (iii) materially impair the fair
saleable value thereof except in each case insofar as such violation, liability,
interference, or reduction in fair market value, or any aggregation thereof, is
not reasonably likely to result in a Material Adverse Effect.
(b) The business of the US Borrower and its Subsidiaries, the
Properties and all operations at the Properties are, and to the knowledge of the
US Borrower have been, in compliance in all material respects with all
applicable Environmental Laws except for noncompliance which is not reasonably
likely to result in a Material Adverse Effect.
(c) Neither the US Borrower nor any of its Subsidiaries has
received any written notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the business of
the US Borrower and its Subsidiaries, nor does any Specified Borrower have
knowledge or reason to believe that any such notice will be received or is being
threatened except insofar as such notice or threatened notice, or any
aggregation thereof, does not involve a matter or matters that is or are
reasonably likely to result in a Material Adverse Effect.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to give rise to liability
under, any Environmental Law in effect at the time of the making of this
representation, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law in effect at the time of the
making of this representation except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, is not reasonably
likely to result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of any Specified Borrower, threatened,
under any Environmental Law in effect at the time of the making of this
representation to which the US Borrower or any Subsidiary is or, to the best
knowledge of any Specified Borrower, will be named as a party with respect to
the Properties or the business of the US Borrower and its Subsidiaries, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law in effect at the time of the making of
this representation with respect to the Properties or the business of the US
Borrower and its Subsidiaries except insofar as such proceeding, action, decree,
order or other requirement, or any aggregation thereof, is not reasonably likely
to result in a Material Adverse Effect.
(f) There has been no release or, to the best knowledge of any
Specified Borrower, threat of release of Materials of Environmental Concern at
or from the Properties, or arising from or related to the operations of the US
Borrower or any Subsidiary in connection with the Properties or otherwise in
connection with the business of the US Borrower and its Subsidiaries, in
violation of or in amounts or in a manner that could reasonably give rise to
liability under Environmental Laws in effect at the time of making this
representation except insofar as any such violation or liability referred to in
this paragraph, or any aggregation thereof, is not reasonably likely to result
in a Material Adverse Effect.
(g) To the best knowledge of any Specified Borrower, each of
the representations and warranties set forth in subsections 5.15(a) through (f)
is true and correct with respect to each parcel of real property owned or
operated by the US Borrower or any Subsidiary (other than the Properties) except
to the extent that the facts and circumstances giving rise to any such failure
to be so true and correct is not reasonably likely to result in a Material
Adverse Effect.
5.16 REGULATION H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968.
5.17 DELIVERY OF TRANSACTION DOCUMENTS. Each Specified Agent
has received for itself and for each Specified Lender a complete copy of each of
the Transaction Documents (including all exhibits, schedules and disclosure
letters referred to therein or delivered pursuant thereto, if any) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof.
5.18 REPRESENTATIONS AND WARRANTIES CONTAINED IN THE
TRANSACTION DOCUMENTS. Each of the Transaction Documents has been duly executed
and delivered by the Credit Parties party thereto and all other parties thereto
and is full force and effect. The representations and warranties of the US
Borrower and its Subsidiaries and, to the best knowledge of the Credit Parties
parties thereto, the other parties, in each of the Transaction Documents, are
true and correct in all material respects.
5.19 DISCLOSURE. As of the Closing Date or, if later, the date
it was furnished, no information, financial statement, report, certificate or
other document prepared or furnished by or on behalf of any Credit Party to any
Agent or any Lender in connection with this Agreement or any other Specified
Loan Document (but excluding all projections and pro forma financial statements
which shall have been prepared in good faith and based upon reasonable
assumptions, it being recognized that such projections are not viewed as facts
and actual results may be different) taken as a whole contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements herein or therein not misleading. As of the Closing Date,
there is no fact known to any Credit Party which has, or which could reasonably
be expected to have, a Material Adverse Effect.
5.20 GUARANTEE AND COLLATERAL AGREEMENT; MORTGAGES. (a) The
Guarantee and Collateral Agreement is effective to create in favor of the
Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Pledged Securities described therein and proceeds thereof and
all actions have been taken to cause the Guarantee and Collateral Agreement to
constitute a fully perfected first Lien on, and security interest in, all right,
title and interest of the US Borrower and its Domestic Subsidiaries,
respectively, in such Pledged Securities described therein and in proceeds
thereof superior in right to any other Person.
(b) The Guarantee and Collateral Agreement is effective to
create in favor of the Collateral Agent, for the benefit of the Secured Parties,
a legal, valid and enforceable security interest in the respective collateral
described therein and proceeds thereof, and the Guarantee and Collateral
Agreement constitutes a fully perfected, first priority Lien on, and security
interest in, all right, title and interest of the US Borrower and its Domestic
Subsidiaries in such collateral and the proceeds thereof superior in right to
any other Person other than Liens permitted hereby.
(c) The properties listed on Schedule 5.19 constitute all
material real properties owned by the US Borrower or any of its Subsidiaries.
The Mortgages are each effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable Lien on the
properties described therein owned by the US Borrower and its Domestic
Subsidiaries and proceeds thereof, subject to obtaining necessary consents
(which consents shall be obtained on or prior to the Closing Date) and when the
Mortgages are filed in the offices specified on Schedule 5.19, the Mortgages
shall constitute a fully perfected, first priority Lien on, and security
interest in, all right, title and interest of the US Borrower and its Domestic
Subsidiaries in the Mortgaged Properties and the proceeds thereof, superior in
right to any other Person other than Liens permitted hereby.
(d) Each other Loan Document to which any Credit Party is a
party and which purports to ▇▇▇▇▇ ▇ ▇▇▇▇ on any property of such Credit Party to
secure the Specified Obligations is effective to create in favor of the
Specified Agent, for the benefit of the Specified Lenders, a legal, valid and
enforceable security interest in the respective collateral described therein and
proceeds thereof, and when appropriate filings and notices have been taken or
given, such Loan Document shall constitute fully perfected, first priority Liens
on, and security interests in, all right, title and interest of such Credit
Party in such collateral and the proceeds thereof superior in right to any other
Person other than Liens permitted hereby.
5.21 SOLVENCY. Each Specified Borrower is, individually and
together with its Subsidiaries, Solvent.
5.22 INSURANCE. The insurance maintained by or reserved
against on the books of the Borrowers and their respective Subsidiaries is for
such risks as are customarily insured against by companies engaged in the same
or similar business. None of the Credit Parties or any of their Subsidiaries is
in default under any provisions of any such policy of insurance or has received
notice of cancellation of any such insurance (other than in connection with the
replacement of any such policy). None of the Credit Parties or any of their
Subsidiaries has made any claims under any policy of insurance with respect to
which the insurance carrier has denied liability, which denial is reasonably
like to result in a Material Adverse Effect.
5.23 SENIOR INDEBTEDNESS. The Domestic Obligations and the US
Borrower's guarantee of the Foreign Subsidiary Obligations constitute
"Designated Senior Indebtedness" of the US Borrower under and as to be defined
in the Subordinated Debt Documents. The obligations of each Domestic Subsidiary
under the Guarantee and Collateral Agreement constitute "Guarantor Senior
Indebtedness" of such Subsidiary under and as to be defined in the Subordinated
Debt Documents.
5.24 YEAR 2000 MATTERS. Any reprogramming required to permit
the proper functioning (but only to the extent that such proper functioning
would otherwise be impaired by the occurrence of the year 2000) in and following
the year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the US Borrower or any of its
Subsidiaries or used or relied upon in the conduct of their business (including
any such systems and other equipment supplied by others or with which the
computer systems of the US Borrower or any of its Subsidiaries interface), and
the testing of all such systems and other equipment as so reprogrammed, will be
substantially completed by June 30, 1999. The costs to the US Borrower and its
Subsidiaries that have not been incurred as of the date hereof for such
reprogramming and testing and for the other reasonably foreseeable consequences
to them of any improper functioning of other computer systems and equipment
containing embedded microchips due to the occurrence of the year 2000 could not
reasonably be expected to result in a Default or Event of Default or to have a
Material Adverse Effect.
SECTION 6. CONDITIONS PRECEDENT
6.1 CONDITIONS TO INITIAL EXTENSIONS OF CREDIT. The agreement
of each Lender to make its initial extension of credit hereunder and of each
Issuing Lender to issue or create any Accommodation, in each case, on the
Closing Date is subject to the satisfaction of the following conditions
precedent on or prior to May 30, 1999:
(a) LOAN DOCUMENTS. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a Responsible
Officer of each Borrower, (ii) for the account of each of the Specified
Lenders who has requested a Specified Note pursuant to subsection
2.7(e), a Revolving Credit Note, a Term Note or a Swing Line Note, as
the case may be, conforming to the requirements hereof and executed and
delivered by a Responsible Officer of the Specified Borrower; (iii) the
Guarantee and Collateral Agreement, executed and delivered by a
Responsible Officer of the US Borrower and each of its Domestic
Subsidiaries, (iv) Mortgages, executed and delivered by a Responsible
Officer of the US Borrower or its Domestic Subsidiaries, and (v) the
Sharing Agreement, executed and delivered by each of the Specified
Agents and the Collateral Agent. The English Agent shall have received
such collateral documents and guarantees as shall have been reasonably
requested by the English Agent to effect: (1) a charge of 65% of the
common stock of English Bidco to secure the Domestic Obligations, (2) a
guarantee by English Bidco of the English Obligations of English
Borrower and a charge of all the Capital Stock of English Borrower
owned by English Bidco to secure such guarantee and the other English
Obligations, (3) guarantee by the Material Subsidiaries of English
Borrower of the English Obligations of English Borrower only and a
charge of all the Capital Stock and material assets of the Material
Subsidiaries to secure such guarantee, (4)
guarantee by English Borrower and the Material Subsidiaries of
English Borrower of the English Obligations owed by English Bidco
and a charge of all the Capital Stock and material assets of English
Borrower and such Material Subsidiaries to secure such guarantee,
and (5) charge over the assets of English Borrower to secure the
English Obligations owed by English Borrower; PROVIDED that, the
collateral documents and guarantees referred to in this sentence
shall be executed and delivered to the English Agent by no later
than June 30, 1999.
(b) CORPORATE PROCEEDINGS OF THE CREDIT PARTIES. The
Administrative Agent shall have received a copy of the resolutions, in
form and substance reasonably satisfactory to the Administrative Agent,
of the Board of Directors or duly authorized committee of each Credit
Party authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, (ii) the
borrowings and guarantees contemplated hereunder, and (iii) the
granting by it of Liens created pursuant to the Loan Documents, and
(iv) the other transactions contemplated hereby, certified by the
Secretary, Assistant Secretary, or comparable officer of such Person as
of the Closing Date, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded
and shall be in form and substance reasonably satisfactory to the
Specified Agent.
(c) INCUMBENCY CERTIFICATES. The Administrative Agent shall
have received a certificate of the Secretary or an Assistant Secretary
(or comparable officer) of each Credit Party, dated the Closing Date,
as to the incumbency and signature of the officers of such Person
executing each Loan Document to which it is a party and any certificate
or other document to be delivered by it pursuant hereto and thereto,
together with evidence of the incumbency of such Secretary, Assistant
Secretary, or comparable officer.
(d) CORPORATE DOCUMENTS. The Administrative Agent shall have
received true and complete copies of the certificate of incorporation
and by-laws or memorandum and articles thereof (or equivalent
documents), as the case may be, of each Credit Party, certified as of
the Closing Date as complete and correct copies thereof by the
Secretary, Assistant Secretary, or comparable officer of such Person.
(e) EQUITY AND DEBT FINANCING. The US Borrower shall have
common equity of at least $175,000,000, of which at least $151,000,000
shall have been received by the US Borrower in cash from the proceeds
of equity issued by the US Borrower to the Buyer and the balance of
which shall be retained common equity, on terms reasonably satisfactory
to the Administrative Agent. The Borrower shall have received at least
$130,000,000 in gross cash proceeds from the extension of the Interim
Loans pursuant to the Interim Loan Agreement and on other terms and
conditions reasonably satisfactory to the Administrative Agent.
(f) CLOSING OF RECAPITALIZATION; TRANSACTION DOCUMENTS. The
Recapitalization shall have been consummated in accordance with the
Recapitalization Agreement and all requirements of applicable law, and
the Administrative Agent shall have received (i) a certified
copy of each of the Transaction Documents, which shall be in form and
substance reasonably
satisfactory to the Agents and (ii) a certificate signed by a
Responsible Officer of the US Borrower to the effect that all
conditions precedent and other material transactions contemplated by
the Transaction Documents have been satisfied or consummated, as the
case may be, without amendment, waiver or modification of the
material terms thereof. The aggregate purchase price (including the
roll-over of management equity) for the common stock of the US
Borrower in connection with the Recapitalization shall be
approximately $380,000,000 (subject to post-closing adjustments
described in the Recapitalization Agreement).
(g) REPAYMENT OF INDEBTEDNESS. Contemporaneously with the
Loans made on the Closing Date, the US Borrower and its Subsidiaries
shall repay all of their existing outstanding Indebtedness for an
aggregate amount equal to approximately $230,000,000, other than any
such Indebtedness which is to remain outstanding after the Closing Date
and which is satisfactory to the Administrative Agent, and all Liens in
connection with such repaid Indebtedness shall have been (or
contemporaneously shall be) released.
(h) FEES. The Lenders, the Agents, and CSI shall have received
all fees and expenses due to them on the Closing Date and the total
aggregate amount of all fees and expenses incurred or to be incurred in
connection with this Agreement, the other Loan Documents, the Interim
Loan Agreement and the Recapitalization and the financings contemplated
thereby (other than the Senior Subordinated Notes) shall not exceed
$25,000,000.
.
(i) CONSENTS, LICENSES AND APPROVALS. (i) All governmental and
material third party approvals reasonably necessary or in the
reasonable judgment of the Administrative Agent advisable in connection
with the execution, delivery and performance of the Transactions, the
financings contemplated thereby, and the continuing operations of the
US Borrower and its Subsidiaries shall have been obtained and be in
full force and effect, and (ii) all applicable waiting periods shall
have expired without any action being taken or threatened by any
competent Governmental Authority which would restrain, prevent or
otherwise impose adverse conditions on the US Borrower, any of its
Subsidiaries, the Transactions, or the financings thereof.
(j) FINANCIAL INFORMATION. The Administrative Agent shall have
received copies of the financial statements described in subsection 5.1
and unaudited interim consolidated financial statements of the US
Borrower and its Subsidiaries for each fiscal month ended subsequent to
December 31, 1998 as to which such financial statements are available,
and all of such financial statements shall not, in the reasonable
judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of the US Borrower and its
Subsidiaries, as reflected in the financial statements or projections
previously furnished to the Lenders.
(k) SOLVENCY OPINION. The Administrative Agent shall have
received a solvency opinion from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., reasonably
satisfactory in form and substance to the Administrative Agent,
certifying the Solvency of the US Borrower and its Subsidiaries on a
consolidated basis, after giving effect to the Transactions and any
other transaction contemplated hereby.
(l) INSURANCE. The Administrative Agent shall have received
evidence reasonably satisfactory to it that insurance relating to the
US Borrower and its Subsidiaries complying with the provisions of the
Loan Documents will be in place after the Transactions; PROVIDED that,
the English Borrower and its Subsidiaries shall be required to comply
with subsection 7.5(c)(ii) by no later than June 30, 1999.
(m) PERFECTION; LIEN SEARCHES. All filings and other actions
reasonably required by any Specified Agent to create and perfect a
first priority security interest in all collateral granted to any
Specified Agent pursuant to any Loan Documents shall have been duly
made or taken (or the Specified Agent shall be reasonably satisfied
that such action shall promptly be taken), and all such collateral
shall be free and clear of other Liens except as permitted hereby. The
Administrative Agent shall have received the results of a recent lien
search in each of the jurisdictions listed on Schedule 5.19 and each
other jurisdiction in the United States where assets of the US Borrower
and its Domestic Subsidiaries are located, and (i) such search shall
reveal no Liens on any of the assets of the US Borrower and its
Domestic Subsidiaries other than those permitted pursuant to subsection
8.3 or (ii) the Administrative Agent shall have received evidence
reasonably satisfactory to it that UCC-3 termination statements and
other Lien release documentation shall have been duly executed and
delivered on the Closing Date, and all other necessary actions shall
have been duly taken, to the extent necessary to effect the release of
all Liens other than those permitted pursuant to subsection 8.3 on the
assets of the US Borrower and its Domestic Subsidiaries. All actions
including pursuant to clause (r) below necessary to perfect or continue
the perfection of each Specified Agent in any of the collateral shall
have been taken or duly provided for.
(n) PERFECTION CERTIFICATE. The Administrative Agent shall
have received a Perfection Certificate in the form of Exhibit H duly
completed by the US Borrower and its Domestic Subsidiaries.
(o) LEGAL OPINIONS. The Administrative Agent shall have
received the following executed legal opinions, each dated the Closing
Date:
(i) the executed legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, New
York counsel to the Credit Parties, substantially in the form of
Exhibit E-1;
(ii) the executed legal opinion of ▇▇▇▇▇▇▇▇▇ & May, English
counsel to the Credit Parties, substantially in the form of Exhibit
E-2; and
(iii) such legal opinions of local counsel to the Credit
Parties, in form and substance reasonably satisfactory to the
Administrative Agent as the Administrative Agent may request.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(p) CLOSING CERTIFICATE. The Administrative Agent shall have
received a Closing Certificate substantially in the form of Exhibit F
hereto and dated the Closing Date, executed by a Responsible Officer of
each Credit Party.
(q) PLEDGED STOCK. Each Specified Agent shall have received
the pledged stock to be pledged pursuant to, and the
acknowledgements and consents of the Issuers referred to in, the
applicable Loan Documents, together with undated stock powers
endorsed in blank for each stock certificate representing such
pledged stock, or, as applicable, such other documents or
notifications required by the applicable Loan Documents; PROVIDED
that in respect of the stock in English Borrower, these requirements
shall be satisfied by no later than June 30, 1999.
(r) SURVEYS. The Collateral Agent shall have received, and the
title insurance company issuing the policy referred to in subsection
6.1(t) (the "TITLE INSURANCE COMPANY") shall have received, maps or
plats of an as-built survey of the sites of the property covered by
each Mortgage certified to the Collateral Agent and the Title Insurance
Company in a manner satisfactory to them, dated (or, in the case of
previously prepared maps, plats or surveys, recertified) a date
satisfactory to the Collateral Agent and the Title Insurance Company,
by an independent professional licensed land surveyor satisfactory to
the Collateral Agent and the Title Insurance Company, which maps or
plats and the surveys on which they are based shall be made in
accordance with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and Mapping in 1962,
and, without limiting the generality of the foregoing, there shall be
surveyed and shown on such maps, plats or surveys the following: (i)
the locations on such sites of all the buildings, structures and other
improvements and the established building setback lines; (ii) the lines
of streets abutting the sites and width thereof; (iii) all access and
other easements appurtenant to the sites or necessary or desirable to
use the sites; (iv) all roadways, paths, driveways, easements,
encroachments and overhanging projections and similar encumbrances
affecting the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor; (v) any
encroachments on any adjoining property by the building structures and
improvements on the sites; and (vi) if the site is described as being
on a filed map, a legend relating the survey to said map.
(s) TITLE INSURANCE POLICY. The Collateral Agent shall have
received in respect of each parcel covered by each Mortgage a
mortgagee's title policy (or policies) or marked up unconditional
binder for such insurance dated the Closing Date. Each such policy
shall (i) be in an amount satisfactory to the Collateral Agent; (ii) be
issued at ordinary rates; (iii) insure that the Mortgage insured
thereby creates a valid first Lien on such parcel free and clear of all
defects and encumbrances, except such as may be approved by the
Collateral Agent; (iv) name the Collateral Agent for the ratable
benefit of the Secured Parties as the insured thereunder; (v) be in the
form of ALTA Loan Policy - 1970 (Amended 10/17/70);
(vi) contain such endorsements and affirmative coverage as the
Collateral Agent may request and (vii) be issued by title companies
satisfactory to the Collateral Agent (including any such title
companies acting as co-insurers or reinsurers, at the option of the
Collateral Agent). The Collateral Agent shall have received evidence
satisfactory to it that all premiums in respect of each such policy,
and all charges for mortgage recording tax, if any, have been paid.
(t) FLOOD INSURANCE. If required by law and requested by the
Collateral Agent, the Collateral Agent shall have received (i) a policy
of flood insurance which (A) covers any parcel of improved real
property which is encumbered by any Mortgage, (B) is written in an
amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage which is reasonably allocable to
such real property or the maximum limit of coverage made available with
respect to the particular type of property under the National Flood
Insurance Act of 1968, whichever is less, and (C) has a term ending not
earlier than the maturity of the indebtedness secured by such Mortgage
and (ii) confirmation that the Company has received the notice required
pursuant to Section 208(e)(3) of Regulation H of the Board of Governors
of the Federal Reserve System.
(u) COPIES OF DOCUMENTS. The Administrative Agent shall have
received a copy of all recorded documents referred to, or listed as
exceptions to title in, the title policy or policies referred to in
subsection 6.1(t) and a copy, certified by such parties as the
Administrative Agent may deem appropriate, of all other documents
affecting the property covered by each Mortgage.
(v) OTHER DOCUMENTATION. All other documentation, including,
without limitation, any tax sharing agreement, employment agreement,
management compensation arrangement or other financing arrangement of
each of the Borrowers, or any of their Subsidiaries shall be reasonably
satisfactory in form and substance to the Agents.
6.2 CONDITIONS TO EACH SPECIFIED LOAN. The agreement of each
Specified Lender to make any Specified Loan requested to be made by it on any
date (including the Closing Date) or of the Specified Revolving Credit Lenders
and the Specified Issuing Lender to issue, accept or participate in any
Specified Accommodation is subject to the satisfaction of the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Credit Parties and their
Subsidiaries in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of such date as if made on
and as of such date, except for any representation and warranty which
is expressly made as of an earlier date, which representation and
warranty shall have been true and correct in all material respects as
of such earlier date.
(b) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Specified Loans requested to be made, or Specified Accommodation
requested to be issued or accepted, on such date.
(c) LETTER OF CREDIT APPLICATION. With respect to the issuance
of any Specified Letter of Credit, the Specified Issuing Bank shall
have received a Specified Letter of Credit Application, completed to
its reasonable satisfaction and duly executed by a Responsible Officer;
PROVIDED that if such Specified Letter of Credit is being issued to
support the repayment of any Indebtedness of any Subsidiary of the
Specified Borrower, such Subsidiary shall also execute such Specified
Letter of Credit Application and shall agree to be jointly and
severally liable with the Specified Borrower for any and all
obligations arising under or in connection with such Specified Letter
of Credit or the Specified Letter of Credit Application related
thereto.
Each borrowing by a Specified Borrower hereunder and issuance of any Specified
Accommodation shall constitute a representation and warranty by the Specified
Borrower as of the date of such Specified Loan or issuance or acceptance, as the
case may be, that the conditions contained in this subsection 6.2 have been
satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
Each Borrower, as to itself and its Subsidiaries, hereby
agrees that, so long as any Commitment remains in effect, any Loan remains
outstanding and unpaid, any Accommodation is outstanding, or any other
Obligations are owing to any Secured Party, each Borrower, as to itself and its
Subsidiaries, shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Subsidiaries to:
7.1 FINANCIAL STATEMENTS. Furnish to the Administrative Agent:
(a) as soon as available, but in any event within one hundred
twenty (120) days after the end of each fiscal year of the US Borrower,
a copy of the consolidated (and unaudited consolidating for the US and
UK operations only) balance sheet of the US Borrower and its
consolidated Subsidiaries as at the end of such year and the
consolidated (and unaudited consolidating for the US and UK operations
only) statements of income and retained earnings and consolidated
statement of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without
a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than
sixty (60) days after the end of each of the first three (3) quarterly
periods of each fiscal year of the US Borrower, the unaudited
consolidating for the US and UK operations only and unaudtied
consolidated balance sheet of the US Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidating for the US and UK operations only and unaudited
consolidated statements of income and retained earnings and
consolidated statement of cash flows of the US Borrower and its
consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each case
in comparative form (i) the figures for the previous year and (ii) the
figures set forth in the relevant budgets required to be delivered in
accordance with subsection
7.2(c), certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end audit adjustments
and the absence of footnotes);
all such financial statements shall fairly present in all material respects the
consolidated and consolidating for the US and UK operations only financial
position of the US Borrower and its Subsidiaries as of such date and shall be
prepared in reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and disclosed
therein).
7.2 CERTIFICATES; OTHER INFORMATION. Furnish to the
Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), (i) a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default relating to the
covenants contained in subsection 8.1, except as specified in such
certificate and (ii) a report of a reputable insurance broker with
respect to the insurance required by the Guarantee and Collateral
Agreement;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), (x) a certificate of a
Responsible Officer stating that, to the best of such Responsible
Officer's knowledge, (i) each of the Borrowers and their respective
Subsidiaries has observed or performed all of its respective covenants
and other agreements, and satisfied every condition, contained in this
Agreement, in the Notes and the other Loan Documents to which it is a
party to be observed, performed or satisfied by it, in all material
respects, and that such Responsible Officer has obtained no knowledge
of any Default or Event of Default except as specified in such
certificate, (ii) stating that all such financial statements fairly
present in all material respects (subject, in the case of interim
statements, to normal year-end audit adjustments and the absence of
footnotes) and have been prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as disclosed therein) and (iii) showing in
detail the calculations supporting such statement in respect of
subsections 8.1 and 8.8 and (y) to the extent not previously disclosed
to the Administrative Agent, a listing of any county or state within
the United States where any Credit Party keeps inventory or equipment
and of any Intellectual Property acquired by any Loan Party since the
date of the most recent list delivered pursuant to this clause (y) (or,
in the case of the first such list so delivered,since the Closing Date)
(c) as soon as available but not later than ninety (90) days
after the end of each fiscal year of the US Borrower, a copy of the
projections by the US Borrower of the operating budget and cash flow
budget of the US Borrower and its Subsidiaries for the succeeding
fiscal year, such projections to be accompanied by a certificate of a
Responsible Officer to the effect that such projections have been
prepared in good faith and based upon reasonable assumptions;
(d) as soon as reasonably practicable after the same are
filed, copies of all financial statements and reports which the US
Borrower or any Subsidiary may make to, or file with, the Securities
and Exchange Commission or any successor or analogous Governmental
Authority; and
(e) promptly, such additional financial and other information
as any Lender may from time to time reasonably request (including,
without limitation, any supplemental reports with respect to the
insurance required by the Guarantee and Collateral Agreement).
7.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature (other than Indebtedness),
except where the amount or validity thereof is currently being contested in good
faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the US Borrower or its
Subsidiaries, as the case may be and to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect; PROVIDED that, notwithstanding the foregoing, the US Borrower
and each of its Subsidiaries shall have the right to pay any such obligation and
in good faith contest, by proper legal actions or proceedings, the validity or
amount of such claims.
7.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. (a)
Except as provided in subsection 8.5, continue to engage in business of the same
general type as now conducted by it and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges and franchises necessary in the normal conduct of its
business except if (i) in the reasonable business judgment of the US Borrower or
such Subsidiary, as the case may be, it is in its economic interest not to
preserve and maintain such rights or franchises, and (ii) such failure to
preserve and maintain such privileges, rights or franchises could not reasonably
be expected to have a Material Adverse Effect; and (b) comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY; INSURANCE. (a) Keep all property
(including the Mortgaged Properties) necessary in its business in good working
order and condition (ordinary wear and tear and damage by casualty excepted);
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are customarily insured against in the same general area by
companies engaged in the same or a similar business or as otherwise reasonably
requested by the Specified Agent; and furnish to the Administrative Agent,
upon written request, full information as to the insurance carried except to the
extent that the failure to do any of the foregoing with respect to any such
property could not reasonably be expected to materially adversely affect the
value or usefulness of such property.
(b) With respect to Inventory and Equipment (as defined in the
Guarantee and Collateral Agreement) (i) maintain, with financially sound and
reputable companies, insurance policies insuring the Inventory and Equipment
against loss by fire, explosion,
theft and such other casualties as are customary for businesses of the same or
similar type and (ii) insuring the US Borrower or any of its Domestic
Subsidiary, as the case may be, against liability for personal injury and
property damage relating to such Inventory and Equipment, such policies to be in
such form and amounts and having such coverage as are customary for businesses
of the same or similar type.
(c) All such insurance shall (i) provide that no cancellation
in coverage thereof shall be effective until at least thirty (30) days after
receipt by the Collateral Agent of written notice thereof, (ii) name the
Collateral Agent for the ratable benefit of the Secured Parties as insured
party, lender loss payee or, with respect to the Mortgaged Properties, mortgagee
under a standard mortgage clause, and (iii) if reasonably requested by the
Collateral Agent, include a breach of warranty clause.
7.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and prior
to the occurrence and continuance of a Default or an Event of Default not to
exceed two times a year for each Lender and at any time upon the occurrence and
during the continuance of a Default or Event of Default, permit representatives
of any Specified Lender in connection with such Lender's credit analysis of the
US Borrower to visit and inspect any of its properties and examine and make
abstracts from any of its books and records upon reasonable advance notice at
any reasonable time on any Business Day and to discuss the business, operations,
properties and financial and other condition of the US Borrower and its
Subsidiaries with officers and employees of the US Borrower and its Subsidiaries
and with its independent certified public accountants; PROVIDED that the
Specified Agent or such Specified Lender shall notify the US Borrower prior to
any contact with such accountants and give the US Borrower the opportunity to
participate in such discussions; PROVIDED, that prior to the occurrence of any
Default or Event of Default the Borrowers shall not be required to pay for any
visits by any Lender in excess of one visit per year.
7.7 NOTICES. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the US Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the US Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, could reasonably be expected to have a
Material Adverse Effect;
(c) the following events, if, in the aggregate, they could
reasonably be expected to have a Material Adverse Effect: (i) the
occurrence or expected occurrence of any Reportable Event with respect
to any Single Employer Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Single Employer Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii)
the institution of proceedings or the taking of any other action by the
PBGC or the US
Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Single Employer Plan
or Multiemployer Plan;
(d) the occurrence of any Material Adverse Change; and
(e) the receipt by the US Borrower or any Subsidiary of any
complaint, order, citation, notice or other written communication from
any Person with respect to the existence or alleged existence of a
violation of any Environmental Laws or Materials of Environmental
Concern or any other environmental, health or safety matter including
the occurrence of any spill, discharge or release in a quantity that is
reportable under any Environmental Law on any Mortgaged Property or any
other property owned, leased or utilized by the US Borrower or any
Subsidiary of the US Borrower but only to the extent that such
complaint, order, citation, notice or written communication in the
aggregate could reasonably be expected to have a Material Adverse
Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the US Borrower or the applicable Commonly Controlled
Entity proposes to take with respect thereto.
7.8 ENVIRONMENTAL LAWS.
(a) Comply in all material respects with, and will use
reasonable best efforts to ensure compliance in all material respects
by all tenants and subtenants, if any, with, all applicable
Environmental Laws except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to have a
Material Adverse Effect;
(b) Conduct and complete (or cause to be conducted and
completed) all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws
and in a timely fashion comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being
contested in good faith by appropriate proceedings or to the extent
that the failure to take such actions could not in the aggregate be
reasonably expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Specified Agent
and the Specified Lenders, and their respective employees, agents,
officers, directors and controlling persons, from and against any and
all claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under,
any Environmental Law applicable to the operations of the US Borrower,
any of its Subsidiaries or the Properties, or any orders, requirements
or demands of Governmental Authorities related thereto, including,
without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing
arise out of or relate to the gross negligence or wilful misconduct of
the Specified Agent or any of the Specified Lenders, or any
post-foreclosure actions not taken in accordance with the Assets
Conservation, Lender Liability and Deposit Insurance Protection Act of
1996 or any similar foreign law. The agreements in this paragraph shall
survive repayment of all Specified Loans and all other amounts payable
hereunder.
7.9 PLEDGE OF AFTER ACQUIRED PROPERTY. If at any time
following the Closing Date any Specified Borrower or any Subsidiary shall
acquire at any time property of any nature whatsoever with a monetary value on
the date of such acquisition in excess of the Equivalent Amount of $5,000,000 in
the aggregate, the Specified Borrower and any such Subsidiary shall grant to the
Specified Agent for the ratable benefit of the Specified Lenders a first
priority or first ranking Lien on and security interest in such property as
collateral security for the Specified Obligations pursuant to documentation
reasonably satisfactory to the Specified Agent and take such actions as the
Specified Agent shall reasonably require to ensure the priority and perfection
of such Lien, PROVIDED that (i) only 65% of the voting Capital Stock of any
direct Foreign Subsidiary of the US Borrower or its Domestic Subsidiaries need
be so pledged, (ii) no voting Capital Stock of any indirect Foreign Subsidiary
of the US Borrower or its Domestic Subsidiaries need be so pledged unless such
Foreign Subsidiary is also a Subsidiary of a Foreign Subsidiary Borrower and
such pledge is only to secure the Specified Obligations of such Foreign
Subsidiary Borrower, in which case subsection 7.10 shall be complied with, (iii)
with respect to real or immovable property, only fee owned real estate or
immovable property in excess of the Equivalent Amount of $5,000,000 need be
mortgaged, and (iv) property subject to a Lien permitted by subsection 8.3(h) or
falling within 8.14(a)(ii) need not be so pledged.
7.10 ADDITIONAL SUBSIDIARIES. If, at any time, any Specified
Borrower or any of its Subsidiaries shall form any new Material Subsidiary after
the date of this Agreement or any Subsidiary becomes a Material Subsidiary, such
Specified Borrower or such Material Subsidiary, as the case may be, shall,
subject to applicable Requirements of Law (i) cause any such Material Subsidiary
to guarantee the Specified Obligations to the extent permitted by law, and (ii)
cause each holder of any Capital Stock of such Material Subsidiary to pledge
100% of such Capital Stock to the Specified Agent which shall be accompanied by
such resolutions, incumbency certificates and legal opinions as are reasonably
requested by the Specified Agent; PROVIDED, that (i) in the event such Material
Subsidiary is a direct Foreign Subsidiary of the US Borrower or its Domestic
Subsidiaries, (x) only 65% of the voting Capital Stock of such Foreign
Subsidiary need be pledged to the Collateral Agent and (y) such Foreign
Subsidiary need not provide any guarantee or a security interest in its assets,
and (ii) no voting Capital Stock of any indirect Foreign Subsidiary of the US
Borrower or its Domestic Subsidiaries need be so pledged unless such Foreign
Subsidiary is also a Subsidiary of a Foreign Subsidiary Borrower and such pledge
is only to secure the Specified Obligations of such Foreign Subsidiary Borrower,
in which case the foregoing shall be complied with, subject to applicable
Requirements of Law.
7.11 INTELLECTUAL PROPERTY. Whenever the US Borrower or any
other Credit Party, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Copyright,
Patent or Trademark with the United States Patent and Trademark Office or any
similar office or agency in any other country or any political subdivision
thereof, the US Borrower shall or shall cause such other Credit
Party to report such filing to the Specified Agent within five (5) Business
Days after the last day of the fiscal quarter in which such filing occurs.
Upon request of the Specified Agent, the US Borrower and such Credit Party
shall execute and deliver any and all agreements, instruments, documents, and
papers as the Collateral Agent may reasonably request to evidence the
Administrative Agent's security interest in any Copyright, Patent or
Trademark or such Intellectual Property and the goodwill and general
intangibles of the US Borrower or such Credit Party relating thereto or
represented thereby.
7.12 USE OF PROCEEDS. Use the Specified Revolving Credit
Commitments for working capital and general corporate purposes of the Specified
Borrower and its Subsidiaries and Permitted Acquisitions, PROVIDED that, no more
than (pound)15,000,000 of the English Revolving Credit Commitments may be used
for purposes other than the Bank Guarantee Letters of Credit, reimbursement
obligations in respect thereof and obligations in respect of the related loan
notes. Use the Term Loans to finance the Transactions and to pay fees and
expenses in connection therewith.
7.13 INTEREST RATE PROTECTION AGREEMENTS. Within 90 days
following the Closing Date, ensure that at all times during the two year period
following the date that is 90 days following the Closing Date at least 40% of
the sum of the Interim Loans (or, after the issuance thereof, the Senior
Subordinated Notes) and the Term Loans bears interest at a fixed rate or is
subject to interest rate protection reasonably satisfactory to the
Administrative Agent.
SECTION 8. NEGATIVE COVENANTS
Each Borrower as to itself and its Subsidiaries hereby agrees
that, so long as the Specified Commitments remain in effect, any Specified Loan
remains outstanding and unpaid, any Specified Accommodation remains outstanding
or any other Obligations (other than indemnification obligations not due and
payable) are owing to any Secured Party, each Borrower as to itself and its
Subsidiaries shall not, and (except with respect to subsection 8.1) shall not
permit any of its Subsidiaries to, directly or indirectly:
8.1 FINANCIAL CONDITION COVENANTS.
(a) INTEREST COVERAGE RATIO. Permit the Interest Coverage
Ratio for any period of four consecutive calendar quarters ending
during any period set forth below to be less than the ratio set forth
opposite such period below:
PERIOD RATIO
------ -----
June 30, 1999 through December 31, 1999 1.75 to 1.00
January 1, 2000 through December 31, 2000 2.00 to 1.00
January 1, 2001 through December 31, 2001 2.25 to 1.00
January 1, 2002 and thereafter 2.75 to 1.00
(b) LEVERAGE RATIO. Permit the Leverage Ratio at the last day
of any fiscal quarter occurring during any period set forth below to be
greater than the ratio set forth opposite such period below:
FISCAL QUARTER RATIO
-------------- -----
June 30, 1999 through December 31, 1999 5.75 to 1.00
January 1, 2000 through December 31, 2000 5.25 to 1.00
January 1, 2001 through December 31, 2001 4.75 to 1.00
January 1, 2002 and thereafter 4.50 to 1.00
(c) SENIOR DEBT RATIO. Permit the Senior Debt Ratio at the
last day of any fiscal quarter occurring on or after September 30, 2000
to be greater than 3.00 to 1.00.
(d) MINIMUM CASH RETAINED EARNINGS. At the last day of any
fiscal quarter occurring during any period set forth below, permit (a)
the sum of (i) $175,000,000, (ii) 100% of the Net Cash Proceeds of any
equity securities issued by the US Borrower from the Closing Date
through such day of determination and (iii) 100% of Consolidated Net
Income from May 1, 1999 through such day of determination, to be less
than (b) the sum of (i) $156,000,000, (ii) 75% of the Net Cash Proceeds
of any equity securities issued by the US Borrower from the Closing
Date through such day of determination and (iii) 50% of Consolidated
Net Income for each fiscal quarter (or, in the case of the first fiscal
quarter concluding after the Closing Date, the period from May 1, 1999
to such date of conclusion) of the US Borrower for which Consolidated
Net Income is a positive number commencing from May 1, 1999 through
such day of determination.
8.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a)Indebtedness of the Credit Parties under the Loan Documents;
(b) Indebtedness among the Credit Parties and their
Subsidiaries arising as a result of intercompany loans (including the
conversion into intercompany indebtedness of any investments made in
the form of equity and permitted hereunder); PROVIDED that any such
loan made by a Credit Party is evidenced by an Intercompany Note
pledged by such Credit Party to secure its Obligations pursuant to
documentation reasonably satisfactory to the Administrative Agent.
(c) Indebtedness of Subsidiaries of the US Borrower
outstanding on the Closing Date and listed on Schedule 8.2 and
extensions, renewals or replacements thereof provided that no such
extension, renewal or replacement shall increase the principal amount
thereof;
(d) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business;
(e) Indebtedness of Subsidiaries of the US Borrower in respect
of obligations under Financing Leases and purchase money Indebtedness
in an aggregate amount outstanding not to exceed Equivalent Amount of
$12,500,000 at any one time;
(f) Indebtedness in respect of Interest Rate Agreements for
hedging purposes only and not for speculative purposes;
(g) Indebtedness of any Credit Party (other than the US
Borrower) to any other Credit Party from intercompany transfers of
assets made in the ordinary course of business or to the extent
permitted under subsections 8.6 and 8.9;
(h) Guarantee Obligations permitted by subsection 8.4;
(i) Indebtedness subject to Liens permitted under subsections
8.3(b), (c), (d), and (e);
(j) additional Indebtedness of Subsidiaries of the US Borrower
in an aggregate principal amount outstanding not to exceed the
Equivalent Amount of $15,000,000 at any one time, PROVIDED that if the
proceeds of any such Indebtedness are used to repay the Interim Loans
in accordance with the proviso clause of subsection 2.9(a) then such
Indebtedness shall be subordinated to payment of the Obligations of the
applicable Subsidiary on terms satisfactory to the Administrative
Agent;
(k) Indebtedness of English Bidco and English Borrower in
respect of Guaranteed Loan Notes not to exceed (pound)17,823,330.80;
(l) Indebtedness of a Credit Party which is a Domestic
Subsidiary of the US Borrower incurred to fund part of the cost of a
Permitted Acquisition, PROVIDED, (A) (i) such Indebtedness is owed to
the selling party and is evidenced by a promissory note or (ii) so long
as the Senior Debt Ratio is less than or equal to 2.75 to 1.0 both
before and after giving effect to such Permitted Acquisition, such
Indebtedness is in an aggregate principal amount during the term of
this Agreement not in excess of $50,000,000, (B) any such Indebtedness
is subordinated to the Obligations hereunder on terms reasonably
satisfactory to the Administrative Agent, and (C) immediately after
giving effect to the incurrence of such Indebtedness, no Event of
Default exists;
(m) Indebtedness in respect of the Interim Loans in an
aggregate principal amount not to exceed $130,000,000 (plus unpaid
accrued interest thereon which is capitalized in accordance with the
terms thereof); and Indebtedness in respect of the Exchange Notes as
long as (i) the Exchange Notes are issued in exchange for the Interim
Loans in accordance with Section 2.3 of the Interim Loan Agreement,
(ii) the Exchange Note Indenture is entered into in accordance with
subsection 8.10(e) and (iii) the aggregate principal amount of the
Interim Loans and the Exchange Notes does not exceed $130,000,000 (plus
unpaid accrued interest thereon which is capitalized in accordance with
the terms thereof);
(n) Indebtedness in respect of the Senior Subordinated Notes
as long as all of the Interim Loans and/or Exchange Notes are
simultaneously repaid or have previously been repaid from the proceeds
thereof;
(o) Indebtedness of the US Borrower owing to outside directors,
employees or members of management in connection with the repurchase
of any Capital Stock permitted pursuant to subsection 8.7(a)(ii);
PROVIDED, that (i) such Indebtedness shall be subordinated to payment
of the Obligations on terms satisfactory to the Administrative Agent
and (ii) such Indebtedness shall provide that no payments of
principal, interest or other amounts may be paid in cash thereon
prior to October 21, 2007;
(p) Indebtedness owing to any insurance company in connection with
the financing of any insurance premiums permitted by such insurance
company in the ordinary course of business; and
(q) Indebtedness assumed in connection with a Permitted
Acquisition permitted by subsection 8.9(k); PROVIDED, that such
Indebtedness was in existence at the time of such Permitted Acquisition
and was not created in contemplation thereof.
8.3 LIMITATION ON LIENS. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens created by the Loan Documents in favor of the Specified
Agent or the Lenders;
(b) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, PROVIDED that adequate reserves
with respect to contested taxes are maintained on the books of the US
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(c) carriers', landlord's, warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than
sixty (60) days or which are being contested in good faith by
appropriate proceedings;
(d) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations,
insurance contracts, utilities, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(f) easements, rights-of-way, zoning restrictions, restrictions,
minor defects, encroachments or irregularities in title and other
similar encumbrances (i) previously or hereinafter incurred in the
ordinary course of business which, in the aggregate, are not material
in amount and which, in the case of such encumbrances on any of the
Properties covered by the Mortgages, do not in the aggregate materially
detract from the value of the Property subject thereto or, in the case
of such encumbrances on any property, materially interfere with the
ordinary conduct
of the business of the US Borrower or its Subsidiaries or (ii) which
are set forth in the "marked up" commitments for title insurance
delivered to the Administrative Agent on the Closing Date or
thereafter;
(g) Liens in existence on the Closing Date listed on Schedule 8.3,
securing Indebtedness permitted by subsection 8.2(c) (including
extensions, renewals and replacements of such Indebtedness as permitted
under subsection 8.2(c)), PROVIDED that no such Lien is spread to cover
any additional property (other than after acquired title in or on such
property and proceeds of the existing collateral in accordance with the
instrument creating such Lien) after the Closing Date and that the
amount of Indebtedness secured thereby is not increased except pursuant
to the instrument creating such Lien (without any modification thereof)
other than as set forth in subsection 8.2(c);
(h) purchase money Liens and Liens in respect of Financing Leases
upon or in any property acquired or held by Subsidiaries of the US
Borrower to secure Indebtedness permitted under subsection 8.2(e)
incurred solely for the purpose of financing the acquisition of such
property, and Liens existing on such property at the time of its
acquisition or existing on property of any Person that becomes a
Subsidiary after the date hereof at the time such Person becomes a
Subsidiary (other than any such Lien created in contemplation of such
acquisition);
(i) Liens on assets of a Foreign Subsidiary which is not a Credit
Party securing working capital lines of such Foreign Subsidiary to the
extent (x) the Indebtedness secured thereby is permitted under
subsection 8.2(j) or (y) is the Indebtedness of the Spanish Subsidiary
referred to on Schedule 8.2;
(j) licenses, leases or subleases permitted hereunder granted to
others not interfering in any material respect in the business of the
US Borrower or any of its Subsidiaries;
(k) attachment or judgment Liens (other than judgment Liens paid
or fully covered by insurance which are not outstanding for more than
sixty (60) days) in an aggregate amount outstanding at any one time not
in excess of the Equivalent Amount of $5,000,000;
(l) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by Subsidiaries of the US
Borrower in the ordinary course of business;
(m) Liens in favor of a banking institution arising by operation
of law encumbering deposits (including the right of set-off) held by
such banking institutions incurred in the ordinary course of business
and which are within the general parameters customary in the banking
industry;
(n) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to Subsidiaries of the US Borrower) the
Equivalent Amount of $10,000,000 in aggregate amount at any time
outstanding; and
(o) Liens existing on any property or asset prior to the
acquisition thereof by Subsidiaries of the US Borrower, PROVIDED THAT
(i) such Lien is not created in contemplation of such acquisition and
(ii) such Lien does not apply to any other property or other assets of
any Subsidiary of the US Borrower.
8.4 LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations pursuant to the Loan Documents;
(b) guarantees of Indebtedness by Subsidiaries of the US Borrower
permitted pursuant to subsection 8.2(c) in existence on the Closing
Date and set forth on Schedule 8.4 and extensions, renewals and
replacements thereof, PROVIDED, however, that no such extension,
renewal or replacement shall (i) amend or modify the subordination
provisions, if any, contained in such guarantee in a manner adverse to
the Secured Parties, or (ii) increase the principal amount of such
Indebtedness guaranteed by the original guarantee;
(c) the Specified Accommodation Obligations;
(d) indemnities given in the ordinary course of business in favor
of the companies issuing title insurance policies insuring the title to
any property to induce such issuance;
(e) surety bonds issued in the ordinary course of business in
respect of the type of obligations described in subsection 8.3(e);
(f) indemnities made in the Loan Documents, the Transaction
Documents or in any of the agreements contemplated hereby and thereby
and in the financial advisory agreement described in subsection
8.11(b)(ii) and in the corporate charter and/or bylaws of the US
Borrower and its Subsidiaries;
(g) guarantees by English Borrower of the Guaranteed Loan Notes;
(h) indemnities and guarantees (other than guarantees of
Indebtedness (other than Indebtedness of Subsidiaries of the US
Borrower permitted hereunder)) made in the ordinary course of business,
PROVIDED that such indemnities and guarantees could not in the
aggregate reasonably be expected to have a Material Adverse Effect;
(i) guarantees of Indebtedness of any Subsidiary of the US
Borrower permitted under Section 8.2 to the extent that such Subsidiary
has granted a security interest in its material assets for the benefit
of the Lenders;
(j) Guarantee Obligations of Subsidiaries in respect of
Indebtedness under any Interest Rate Agreement permitted under
subsection 8.2(f);
(k) additional Guarantee Obligations in aggregate principal amount
not to exceed $5,000,000; and
(l) Guarantee Obligations of Subsidiaries under the Subordinated
Debt Documents in respect of the Interim Loans, the Exchange Notes and
the Senior Subordinated Notes, as applicable.
8.5 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except (i) any Domestic Subsidiary of a Specified Borrower may be
merged or consolidated with or into such Specified Borrower (PROVIDED that the
Specified Borrower shall be the continuing or surviving corporation) or with or
into any one or more Wholly Owned Subsidiaries of any such Specified Borrower
(PROVIDED that no Domestic Subsidiary of the US Borrower may be merged or
consolidated with or into any Foreign Subsidiary of the US Borrower unless such
Domestic Subsidiary shall be the surviving corporation), (ii) any Subsidiary of
a Specified Borrower may liquidate or dissolve if, in connection therewith, all
of its assets are transferred to such Specified Borrower (or a Subsidiary
thereof which is a Credit Party), (iii) any Subsidiary which is not a Material
Subsidiary may liquidate or dissolve, (iv) any Foreign Subsidiary may be merged
or consolidated with or into another Foreign Subsidiary (PROVIDED that if any
such merger or consolidation involves a Credit Party, such Credit Party shall be
the continuing or surviving corporation), (v) in the case of a Subsidiary of the
US Borrower, to the extent necessary to effect any Permitted Acquisitions and
(vi) any transaction permitted by subsection 8.6(d).
8.6 LIMITATION ON SALE OF ASSETS. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) obsolete, negligible, surplus or worn out property disposed of
in the ordinary course of business or property that is no longer used
or useful in the conduct of the US Borrower's business disposed of in
the ordinary course of business;
(b) the sale, transfer or exchange of inventory in the ordinary
course of business;
(c) transfers resulting from any casualty or condemnation of
property or assets;
(d) so long as immediately before and after giving effect thereto
no Default or Event of Default exists, any sale or other transfer of
any property or assets having an aggregate fair market value not
exceeding 10% of consolidated total assets of the US Borrower and its
Subsidiaries prior to giving effect to such disposition, PROVIDED that
the Net Cash Proceeds of each such transaction are applied to the
prepayment of the Loans to the extent required by subsection 2.9;
(e) intercompany sales or transfers of assets made (i) in the
ordinary course of business, (ii) between Credit Parties, (iii) from
Credit Parties to Subsidiaries
which are not Credit Parties if such sales or transfers are for at
least fair market value or (iv) between Subsidiaries which are not
Credit Parties;
(f) licenses or sublicenses of intellectual property and general
intangibles and licenses, leases or subleases of other property in the
ordinary course of business and which do not materially interfere with
the business of the US Borrower and its Subsidiaries;
(g) any consignment arrangements or similar arrangements for the
sale of assets in the ordinary course of business;
(h) the sale or discount of overdue accounts receivable arising in
the ordinary course of business, but only in connection with the
compromise or collection thereof;
(i) dispositions permitted by subsection 8.5; and
(j) the sale of assets to the extent that such assets are
exchanged for credit against the purchase price of productive assets,
or the proceeds of such sale are reasonably promptly applied to the
purchase price of productive assets.
8.7 LIMITATION ON RESTRICTED PAYMENTS. Declare or pay any
dividend (other than dividends payable solely in common stock of the US
Borrower) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any class of Capital Stock of the US
Borrower or any of its Subsidiaries or any warrants or options to purchase any
such Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property, obligations of the US Borrower, any Subsidiary or otherwise (such
declarations, payments, setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein called "RESTRICTED
PAYMENTS"), except that:
(a) Subsidiaries of the US Borrower may make Restricted Payments
to other Subsidiaries of the US Borrower and to the US Borrower and the
US Borrower may make the respective Restricted Payments, so long as
(except in the cases of clauses (i), (iii) and (v)) no Event of Default
has occurred and is continuing or would be continuing after giving
effect to such Restricted Payment:
(i) the proceeds of which shall be applied by the US
Borrower directly to pay its out of pocket expenses, for
administrative, legal and accounting services provided by
third parties that are reasonable and customary and incurred
in the ordinary course of business for such professional
services, or to pay franchise fees and similar costs;
(ii) payments, the proceeds of which will be used to
repurchase the Capital Stock or other equity securities of the
US Borrower from outside directors, employees, officers or
members of the management of the US Borrower, or any
Subsidiary, at a price not in excess of fair market value, in
an
aggregate amount not in excess of $2,500,000 in any fiscal
year and $10,000,000 in the aggregate during the term of this
Agreement plus the cash proceeds received by the US Borrower
as a result of any resales of any such Capital Stock or other
securities and plus the amount of Indebtedness referred to in
subsection 8.2(o);
(iii) payments, the proceeds of which will be used to
pay taxes of the US Borrower as part of a consolidated group;
(iv) payments, the proceeds of which will be used to
pay management fees and expenses to Hidden Creek as described
in subsection 8.11(b)(ii); and
(v) Restricted Payments may be made to the US
Borrower to be applied by the US Borrower to the payment of
regularly scheduled payments on the Interim Loans, the
Exchange Notes or the Senior Subordinated Notes due within
five Business Days to the extent such payments are then
permitted by the subordination provisions contained in the
Interim Loans or the Senior Subordinated Notes, as the case
may be.
(b) any Subsidiary of any of the Borrowers may make Restricted
Payments to the Specified Borrower or to their respective Subsidiaries;
and
(c) Restricted Payments necessary to complete the Transactions.
8.8 LIMITATION ON CAPITAL EXPENDITURES. (a) Make or commit to
make any Capital Expenditure except for expenditures in the ordinary course of
business not exceeding, in the aggregate for the US Borrower and its
Subsidiaries during any of the fiscal years of the US Borrower set forth below
the sum of (x) the amount set forth opposite such fiscal year below (the "BASE
CAPEX AMOUNT") and (y) the then unused Permitted Expenditure Amount, PROVIDED
THAT, (b) to the extent Capital Expenditures made in any particular year are
less than the amount set forth below with respect to such year, the amount of
such difference (other than the component thereof described in clause (y)) (the
"CAPEX ROLLOVER") may be carried forward and spent in the subsequent year:
FISCAL YEAR AMOUNT
1999 $35,000,000
2000 $27,500,000
2001 $27,500,000
2002 and each year thereafter $22,500,000
(c) Notwithstanding the foregoing, in no event shall Capital
Expenditures be made by the US Borrower.
8.9 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person
("INVESTMENTS"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) (i) Investments (other than Permitted Acquisitions) by the US
Borrower and its Subsidiaries in any of the Credit Parties, including
any new Subsidiary which becomes a Credit Party and (ii) Investments in
Foreign Subsidiaries of the US Borrower that are not Credit Parties not
to exceed the sum of (x) $5,000,000 in the aggregate plus (y)
intercompany indebtedness permitted by subsection 8.2(b);
(d) loans and advances by the US Borrower or its Subsidiaries to
their respective directors, officers and employees (a) which are in the
form of notes payable by such directors, officers and employees to the
US Borrower or its Subsidiaries and used to finance the purchase of
Capital Stock of the US Borrower or its Subsidiaries or (b) in an
aggregate principal amount not exceeding the Equivalent Amount of
$1,000,000 at any one time outstanding;
(e) loans, advances or Investments in existence on the Closing
Date and listed on Schedule 8.9, and extensions, renewals,
modifications or restatements or replacements thereof, PROVIDED that no
such extension, renewal, modification or restatement shall (i) increase
the amount of the original loan, advance or investment, or (ii)
adversely affect the interests of the Secured Parties with respect to
such original loan, advance or investment or the interests of the
Specified Lenders under this Agreement or any other Loan Document in
any material respect;
(f) Investments permitted by subsection 8.2(b), subsection 8.4,
subsection 8.7 and by subsection 8.8;
(g) promissory notes and other similar non-cash consideration
received in the ordinary course of business by the Subsidiaries of the
US Borrower in connection with the dispositions permitted by subsection
8.6;
(h) Investments in Interest Rate Agreements;
(i) 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;
(j) in addition to the foregoing, Investments by Subsidiaries of
the US Borrower in an aggregate amount not exceeding the Equivalent
Amount of $10,000,000 (at cost, without regard to any write down or
write up thereof) at any one time outstanding;
(k) so long as after giving effect thereto no Default or Event of
Default shall have occurred and be continuing, Investments after the
Closing Date by Subsidiaries of the US Borrower resulting from
Permitted Acquisitions in an aggregate amount which shall include
Indebtedness permitted by subsections 8.2(l) and (q) not to exceed the
sum of (A) the amount of $10,000,000 per annum, (B) up to $15,000,000
to finance the previously planned acquisition in Mexico, (C) the amount
of common stock of the US Borrower issued subsequent to the Closing
Date in connection with Permitted Acquisitions, (D) the amount of the
Indebtedness referred to in subsection 8.2(l)(A)(ii) and (E) the then
unused Permitted Expenditure Amount, PROVIDED, that (i) the
Administrative Agent shall have received as soon as practicable, (I)
such opinions (including with respect to environmental matters),
certificates and copies of agreements (including any Permitted
Acquisition Documents) as it shall reasonably request and (II) a
certificate of a Responsible Officer of the US Borrower after giving
effect to such Permitted Acquisition showing the aggregate purchase
price (including the assumption of any Indebtedness) for Permitted
Acquisitions made by the US Borrower and its Subsidiaries since the
Closing Date, (ii) such actions as may be required or reasonably
requested to ensure that the Specified Agent, for the ratable benefit
of the Specified Lenders, has a perfected first priority security
interest or first ranking hypothec (in each case, to the extent
permitted by any assumed Indebtedness) in any assets required to be
secured pursuant to subsections 7.9 and 7.11 or any other Loan
Document, subject to Liens permitted by subsection 8.3, shall have been
taken and (iii) (I) on a pro forma basis for the period of four
consecutive fiscal quarters most recently ended (assuming the
consummation of such Permitted Acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the
first day of such period of four consecutive fiscal quarters and taking
into account for such pro forma computation only, the reasonable pro
forma cost savings associated with such Permitted Acquisition which are
reasonably satisfactory to the Administrative Agent), the US Borrower
shall be in compliance with the covenants contained in subsection 8.1
and (II) the Administrative Agent shall have received calculations in
reasonable detail reasonably satisfactory to it showing compliance with
the requirements of this clause (iii) certified by a Responsible
Officer of the US Borrower; and
(l) Investments which were owned by the target entity of a
Permitted Acquisition and which were acquired by the US Borrower and
its Subsidiaries in connection with such Permitted Acquisition and were
not made or created in contemplation of such Permitted Acquisition.
8.10 LIMITATION ON PAYMENTS AND MODIFICATIONS OF SUBORDINATED
DEBT INSTRUMENTS. (a) Make any payment or prepayment on or redemption of any of
the Interim Loans, the Exchange Notes or the Senior Subordinated Notes and any
payments in redemption, defeasance or repurchase thereof, except (i) mandatory
payments of interest, fees and expenses required by the terms of the agreement
governing or instrument evidencing such indebtedness but only to the extent
permitted under the subordination provisions applicable thereto, (ii)(a) the
Interim Loans may be exchanged for the Exchange Notes in compliance with
subsection 8.2(m) and (b) the Interim Loans may be repaid as contemplated by the
proviso clause of subsection 2.9(a) and (iii) to the extent that the Leverage
Ratio does not exceed 3.5 to 1.0 after giving effect to the application
described in this clause (iii) and no Default or Event of Default exists, up to
50% of the net proceeds of equity issuances of the US Borrower used to make
voluntary redemptions of outstanding Senior Subordinated Notes under the "equity
clawback" provisions with respect thereto.
(b) Amend, supplement or otherwise modify any of the provisions of
the Subordinated Debt Documents.
(i) which amends or modifies the subordination provisions
contained therein;
(ii) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest on, or increases the amount or
shortens the time of payment of any principal or premium payable
whether at maturity, at a date fixed for prepayment or by acceleration
or otherwise of such Indebtedness, or increases the amount of, or
accelerates the time of payment of, any fees payable in connection
therewith;
(iii) which relates to the affirmative or negative covenants,
events of default or remedies under the documents or instruments
evidencing such Indebtedness and the effect of which is to subject the
US Borrower or any of its Subsidiaries, to any more onerous or more
restrictive provisions; or
(iv) which otherwise adversely affects the interests of the
Lenders as senior creditors or the interests of the Lenders under this
Agreement or any other Loan Document in any respect.
(c) Make any payment in cash on any equity or debt security that
may be made under the terms thereof by the issuance of any security of
the same nature.
(d) Designate any Indebtedness as "Designated Senior Indebtedness"
under the Subordinated Debt Documents.
(e) Enter into the Exchange Note Indenture or the Senior
Subordinated Note Indenture unless (i)(w) the subordination provisions
(and related definitions) thereof are reasonably acceptable to the
Administrative Agent and the Syndication Agent, (x) the covenants and
events of default therein, when taken as a whole, are not less
favorable to the US Borrower than those set forth in the Interim Loan
Agreement and are customary for senior subordinated debt securities
sold in a public offering or a Rule 144A offering, (y) interest is
payable no more frequently than semi-annually and (z) the principal
thereof is payable in a single installment on (i) the date which is
eight and one-half years from the Closing Date, in the case of the
Exchange Notes, and (ii) the tenth anniversary of the Closing Date, in
the case of the Senior Subordinated Notes, and, in each such case, is
not otherwise redeemable or payable or required to be purchased except
for required offers to purchase in connection with change of control
and asset sale provisions customary for senior subordinated debt
securities sold in a public offering or a Rule 144A offering or (ii)
the terms thereof are reasonably satisfactory to the Required Lenders.
(f) Amend, supplement or otherwise modify any of the Transaction
Documents in any material respect without the consent of the
Administrative Agent.
8.11 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Except as set
forth on Schedule 8.11 hereto, (a) enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate unless such transaction is (i)
otherwise permitted under this Agreement, (ii) (x) in the ordinary course of the
US Borrower's or such Subsidiary's business and (y) upon fair and reasonable
terms no less favorable to the US Borrower or such Subsidiary, as the case may
be, than it would obtain in a comparable arm's length transaction with a Person
which is not an Affiliate or (iii) required by the Transaction Documents
(b) In addition, notwithstanding the foregoing, the US
Borrower and its Subsidiaries shall be entitled to make the following payments
and/or to enter into the following transactions:
(i) the payment of reasonable and customary fees and reimbursement
of expenses payable to directors of the US Borrower;
(ii) the payment to Hidden Creek and its Affiliates of fees plus
out-of-pocket expenses pursuant to financial advisory agreements
between Hidden Creek or such Affiliates and the US Borrower or its
Subsidiaries;
(iii) the employment arrangements with respect to the procurement
of services of directors, officers and employees in the ordinary course
of business and the payment of reasonable fees in connection therewith;
(iv) the adoption by the Board of Directors of the US Borrower of
a stock option plan, including any grants thereunder and the issuance
of any common stock upon the exercise of such options;
(v) directors and officers insurance policies and premiums and
indemnity agreements (and any payments pursuant thereto), between the
US Borrower and its Subsidiaries and each individual director and
officer of the US Borrower and its Subsidiaries; and
(vi) the sale of equity interests in the US Borrower to employees,
management and directors of the US Borrower or any of its Subsidiaries
(pursuant to subscription agreements to be entered into in connection
therewith).
8.12 LIMITATION ON SALES AND LEASEBACKS. Enter into any
arrangement with any Person providing for the leasing by the US Borrower or any
Subsidiary of real or personal, immovable or movable, property which has been or
is to be sold or transferred by the US Borrower or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the US
Borrower or such Subsidiary; PROVIDED that this subsection 8.12 shall not
prohibit any sale and leaseback resulting from the incurrence of any lease in
respect of any capital asset entered into within ninety (90) days of the
acquisition of such capital asset for the purpose of providing permanent
financing of such capital asset.
8.13 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal
year of the US Borrower to end on a day other than December 31; PROVIDED that
the US Borrower may change such fiscal year upon the approval of each of the
Specified Agents.
8.14 RESTRICTIONS AFFECTING SUBSIDIARIES. Enter into with any
Person, or suffer to exist any consensual agreement which prohibits or limits
the ability of the US Borrower or any of its Subsidiaries to (a) create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, other than (i) this Agreement and the
other Loan Documents, (ii) any industrial revenue bonds, purchase money
mortgages or Financing Leases or any other agreement or transaction permitted by
this Agreement (in which cases, any prohibition or limitation shall only be
effective against the assets financed thereby) and (iii) any agreements entered
into in connection with foreign working capital lines, the restrictions
contained in which are applicable only to assets of the relevant Foreign
Subsidiary which are not required to be pledged in favor of the Lenders (or any
of them) or (b) pay dividends or make other distributions or pay any
Indebtedness owed to the US Borrower or any of its Subsidiaries except as
permitted by this Agreement and the other Loan Documents.
8.15 LIMITATION ON LINES OF BUSINESS. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the US Borrower and its Subsidiaries are engaged on the date of this Agreement
or which are similar, related or supportive businesses or those consented to by
the Required Lenders.
8.16 AMENDMENTS TO CORPORATE DOCUMENTS; TRANSACTION DOCUMENTS;
LICENSES. (a) Amend its certificate of incorporation or by-laws or other
governing documents unless such amendment does not adversely affect the
interests of any Secured Party in any material respect, (b) amend, supplement or
otherwise modify the terms and conditions of the indemnities and licenses
furnished pursuant to any Transaction Document such that after giving effect
thereto such indemnities or licenses shall be materially less favorable to the
interests of the Credit Parties or the Secured Parties with respect thereto, (c)
otherwise amend, supplement or otherwise modify the terms and conditions of any
Transaction Document except to the extent that any such amendment, supplement or
modification could not reasonably be expected to have a Material Adverse Effect
or (d) increase the rate or amount of, or method of calculation of, the fees
described in subsection 8.11(b)(ii) from the rates and amounts in existence on
the date hereof.
8.17 PASSIVE STATUS OF THE US BORROWER. Permit the US Borrower
to engage in any activities or incur any Indebtedness or Guarantee Obligations
other than (A) maintaining its corporate existence, (B) participating in any tax
and accounting matters in connection with activities permitted hereunder and
under the other Loan Documents, (C) owning the stock of Subsidiaries, (D) its
activities incident to the performance of the Loan Documents, (E) transactions
pursuant to or in connection with the Transactions, (F) assuming and making
payments on the Interim Loans, the Exchange Notes and the Senior Subordinated
Notes, (G) the issuance and/or sale of its common stock or options or warrants
in respect of its Capital Stock, provided that the proceeds thereof are applied
as set forth in subsection 2.9, (H) incurring the Indebtedness referred to in
subsection 8.2(o) and (I) making any Restricted Payment permitted by subsection
8.7.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Specified
Loan and/or Specified Note or any Specified Accommodation Obligation
when due in accordance with the terms thereof or hereof; or any
Borrower shall fail to pay any interest on any Specified Loan and/or
Specified Note, or any other amount payable hereunder by it, within
five (5) days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any
Borrower or any of their Subsidiaries (other than, prior to
consummation of the Transactions, in their capacities as sellers in
connection with the Recapitalization) herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with any Loan Document shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) Any Borrower or any of their Subsidiaries shall default in the
performance or observance of (i) any agreement contained in the
provisos to subsections 6.1(a), 6.1(m) or 6.1(q), and Section 8 (other
than subsections 8.2, 8.3, 8.4, 8.7 and 8.9) or Section 11 of this
Agreement or Section 5 of the Guarantee and Collateral Agreement or
(ii) subsections 8.2, 8.3, 8.4, 8.7 or 8.9 and, in the case of any
default under this clause (ii), such default shall continue unremedied
for a period of ten (10) days; or
(d) Any Borrower or any of their Subsidiaries shall default in the
observance or performance of any other agreement contained in this
Agreement or in any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of thirty (30) days; or
(e) Any Credit Party or any of its Material Subsidiaries shall (i)
default (x) in any payment of principal of or interest on any
Indebtedness (other than any of the Loans) or (y) in the payment of any
Guarantee Obligation (other than the guarantees pursuant to the Loan
Documents), having an outstanding principal amount individually or in
the aggregate for both of clauses (x) and (y) in excess of the
Equivalent Amount of $5,000,000, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness
or Guarantee Obligation was created; or (ii) default in the observance
or performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness
to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(f) (i) Any Credit Party or any of its Material Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, liquidation, administration, winding up, insolvency,
receivership, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, administration,
arrangement, adjustment, winding-up, liquidation, dissolution,
receivership, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee,
administrator, liquidator, custodian, administrative receiver,
conservator or other similar official for it or for all or any
substantial part of its assets, or any of the Credit Parties or any of
their Material Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any
Credit Party or any of its Material Subsidiaries any case, proceeding
or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of sixty (60) days; or (iii) there shall be commenced against
any Credit Party or any of its Material Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within sixty (60) days from the entry thereof; or
(iv) any Credit Party or any of its Material Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii),
or (iii) above; or (v) any Credit Party or any of its Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts (other than intercompany debts) as they
become due; or
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the US Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the US Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the US
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi)
above, such event or condition, together with all other such events
or conditions, if any, could reasonably be expected to result in a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Specified Borrower or any of their Material Subsidiaries involving,
individually or in the aggregate, a liability (not paid or fully
covered by insurance) of the Equivalent Amount of $5,000,000 or more,
and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within sixty (60) days from
the entry thereof; or
(i) Any Borrower or any of their Subsidiaries shall incur any
liability (not paid or fully covered by insurance) under any
Environmental Law in an amount which would result in a Material Adverse
Effect; or
(j) Any Loan Document shall, at any time, cease to be in full
force and effect (unless released by the Specified Agent, at the
direction of the Required Lenders or as otherwise permitted under this
Agreement) or shall be declared null and void, or the validity or
enforceability thereof of any terms or provisions therein shall be
contested by any Credit Party, or any of the Liens intended to be
created by the Loan Documents shall cease to be or shall not be a valid
and perfected Lien having the priority contemplated thereby; or
(k) (x) A Change of Control shall occur or (y) the US Borrower
shall fail to own directly or indirectly, beneficially and of record
100% of the Capital Stock of each Foreign Subsidiary Borrower if in
each case of (x) and (y) above, such event shall occur other than by
actions taken by the Administrative Agent or the Collateral Agent under
the Loan Documents; or
(l) The subordination provisions contained in the Subordinated
Debt Documents shall cease, for any reason, to be in full force and
effect or enforceable in accordance with their terms;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to a Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon), the maximum amount available to be
drawn under all outstanding Accommodations and all other amounts owing under
this Agreement and any Notes shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers declare the Loans
hereunder (with accrued interest thereon), the maximum amount available to be
drawn under all outstanding Accommodations and all other amounts owing under
this Agreement and any Notes to be due and payable forthwith, whereupon the
same shall immediately become due and payable. All payments under this
Section 9 on account of undrawn Accommodations shall be made by the Specified
Borrower directly to a cash collateral account established for such purpose for
application to the Specified Borrower's obligations with respect thereto as
drafts are presented under the Specified Accommodations. Any remaining amounts
paid by the Specified Borrower in respect of such undrawn Specified
Accommodations shall be returned to the Specified Borrower after the last expiry
date of the Accommodations and after the Obligations have been paid in full.
Except as expressly provided above in this Section, each Credit Party hereby
waives presentment, demand, protest and all other notices of any kind.
SECTION 10. THE AGENTS
10.1 APPOINTMENT. Each Specified Lender hereby irrevocably
designates and appoints its Specified Agent and person holding a power of
attorney of such Specified Lender under this Agreement and the other Specified
Loan Documents, and each such Specified Lender irrevocably authorizes such
Specified Agent for such Specified Lender, to take such action on its behalf
under the provisions of this Agreement and the other Specified Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Specified Agent by the terms of this Agreement and the other Specified
Loan Documents, together with such other powers as are reasonably incidental
thereto including, without limitation, the execution and delivery of the Sharing
Agreement on behalf of such Specified Lender and the appointment of Chase, as
Collateral Agent thereunder. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Specified Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Specified Loan Document or otherwise exist against the
Specified Agent.
10.2 DELEGATION OF DUTIES. Each Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 EXCULPATORY PROVISIONS. The Agents shall not, nor shall
any of their officers, directors, controlling persons, employees, agents,
attorneys-in-fact or Affiliates be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except for its or such Person's own gross
negligence or wilful misconduct) or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by any
Credit Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Specified Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any Notes or any other Loan Document or for any failure of any
Credit Party to perform its obligations hereunder or thereunder. No Agent
shall be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Credit Parties.
10.4 RELIANCE BY THE SPECIFIED AGENTS. The Agents shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to any Credit Party), independent
accountants and other experts selected by the Agent. The Agents shall deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Specified Agent. Each Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Required Lenders
or all the Lenders, as it deems appropriate or it shall first be indemnified to
its satisfaction by the Specified Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Each Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and any Notes and the other Loan
Documents in accordance with a request of the Required Lenders or all the
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Obligations.
10.5 NOTICE OF DEFAULT. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless it has received written notice from a Specified Lender or any
Credit Party referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
an Agent receives such a notice, the Specified Agent shall give notice thereof
to the Specified Lenders and other Agents. The Agents shall each take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders or all the Lenders; PROVIDED that unless and
until such Agents shall have received such directions, the Agents may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as they shall deem advisable in the
best interests of the Lenders.
10.6 NON-RELIANCE ON AGENT AND LENDERS. Each Lender expressly
acknowledges that no Agent has, nor has any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates made any representations or
warranties to it and that no act by any Agent hereinafter taken, including any
review of the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon the Agents or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Credit Parties and made its own decision to make its Specified Loans hereunder
and enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agents or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of any Credit Party.
Except for notices, reports and other documents expressly required to be
furnished to the Specified Lenders by the Specified Agent hereunder, the
Agents shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness
of any Credit Party which may come into the possession of the Agents or any
of their officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
10.7 INDEMNIFICATION. The Specified Lenders agree to indemnify the
Specified Agent in its capacity as such (to the extent not reimbursed by the
Specified Borrower and without limiting the obligation of the Specified Borrower
to do so), ratably according to their respective Specified Commitment
Percentages in effect on the date on which indemnification is sought under this
subsection, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Specified Loans) be imposed on, incurred
by or asserted against the Specified Agent in any way relating to or arising out
of this Agreement, any of the other Loan Documents or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Specified Agent under or in
connection with any of the foregoing; PROVIDED that no Specified Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from the Specified Agent's gross negligence or wilful
misconduct. The Specified Agent shall have the right to deduct any amount owed
to it by any Specified Lender under this subsection from any payment made by it
to such Lender hereunder. The agreements in this subsection shall survive the
payment of the Specified Loans and all other amounts payable hereunder.
10.8 AGENTS IN THEIR INDIVIDUAL CAPACITY. The Agent, and their
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Credit Parties as though the Agents were not the
Agents hereunder and under the other Loan Documents. With respect to its
Specified Loans made or renewed by it and any Specified Note issued to it, the
Specified Agent shall have the same rights and powers under this Agreement and
the other Specified Loan Documents as any Specified Lender and may exercise the
same as though it were not a Specified Agent, and the terms "Specified Lender"
and "Specified Lenders" shall include each of the Specified Agents in its
individual capacity.
10.9 SUCCESSOR AGENTS. Any Specified Agent may resign as the
Specified Agent upon ten (10) days' notice to the Lenders and the US Borrower.
If the Specified Agent shall resign as Specified Agent under this Agreement and
the other Loan Documents, then the Required Lenders shall appoint from among the
Specified Lenders a successor agent for the Specified Lenders, which successor
agent shall be subject to the approval of the Specified Borrower, whereupon such
successor agent shall succeed to the rights, powers and duties of the Specified
Agent, and the term "Specified Agent" shall mean such successor agent effective
upon such appointment and approval, and the former Specified Agent's rights,
powers and duties as Specified Agent shall be terminated, without
any other or further act or deed on the part of such former Specified Agent
or any of the parties to this Agreement or any holders of the Specified
Loans. After any retiring Specified Agent's resignation as Specified Agent,
the provisions of this subsection shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Specified Agent under
this Agreement and the other Loan Documents.
10.10 ADDITIONAL MINISTERIAL POWERS OF THE SPECIFIED AGENTS. Each
Specified Agent is hereby irrevocably authorized by each of the Specified
Lenders to execute any document creating any Lien and to release any Lien
covering any asset of the Specified Borrower or any of its Subsidiaries
(including, without limitation, any Properties, accounts receivable or
inventory) that is the subject of a disposition, sale or assignment which is
permitted under this Agreement or, subject to subsection 12.1, which has been
consented to by the Required Lenders.
10.11 SPECIFIED ISSUING LENDER AND COLLATERAL AGENT. Each
Specified Revolving Credit Lender hereby acknowledges that the provisions of
this Section 10 shall apply to the Specified Issuing Lender, in its capacity as
issuer of any Specified Accommodation, and to the Specified Swing Line Lender,
in its capacity as provider of any Specified Swing Line Loans, and in its
capacity under the other Loan Documents, each in the same manner as such
provisions are expressly stated to apply to a Specified Agent. Each Lender
hereby acknowledges that the provisions of this Section 10 shall apply to Chase,
as Collateral Agent under the other Loan Documents, in the same manner as such
provisions are expressly stated to apply to the Specified Agents.
10.12 ENGLISH AGENT AS TRUSTEE. (a) The English Agent in its
capacity as trustee or otherwise under the Loan Documents:
(i) is not liable for any failure, omission, or defect in
perfecting or registering the security constituted or created by
any Loan Document;
(ii) may accept without inquiry such title as any
Credit Party may have to any asset secured by any Loan
Document; and
(iii) is not under any obligation to hold any Loan
Document or any other document in connection with the Loan
Documents or the assets secured by any Loan Document
(including title deeds) in its own possession or take any
steps to protect or preserve the same. The English Agent may
permit any Credit Party to retain any Loan Document or other
document in its possession.
(b) Except as otherwise provided in the Loan Documents, all
moneys which under the trusts contained in the Loan Documents are
received by the English Agent in its capacity as trustee or otherwise
may be invested in the name of or under the control of the English
Agent in any investment authorized by English law for the investment by
trustee of trust money or in any other investments which may be
selected by the English Agent. Additionally, the same may be placed on
deposit in the name or under the control of the English Agent at such
bank or institution (including the English Agent) and upon such terms
as the English Agent may think fit.
SECTION 11. GUARANTEE
11.1 GUARANTEE. To induce the Lenders to execute and deliver this
Agreement, to make Loans, and to issue and participate in Accommodations, and in
consideration thereof, the US Borrower hereby unconditionally and irrevocably
guarantees, as primary obligor and joint and several co-debtor and not merely as
surety to the Agents, the Secured Parties and their successors, indorsees,
transferees and assigns, the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Foreign Subsidiary Obligations, and the US Borrower further agrees to pay the
expenses which may be paid or incurred by the Agents or the Secured Parties
in collecting any or all of the Foreign Subsidiary Obligations and/or
enforcing any rights under this Section 11 or under the Foreign Subsidiary
Obligations in accordance with subsection 12.5. The guarantee contained in
this Section 11 shall remain in full force and effect until the Foreign
Subsidiary Obligations are paid in full and each of the Foreign Subsidiary
Revolving Credit Commitments is terminated, notwithstanding that from time to
time prior thereto any Foreign Subsidiary Revolving Credit Borrower may be
free from any Specified Obligations.
11.2 WAIVER OF SUBROGATION. Notwithstanding any payment or
payments made by the US Borrower in respect of the Foreign Subsidiary
Obligations or any setoff or application of funds of the US Borrower by any
Agent or any Lender, until payment in full of the Foreign Subsidiary Obligations
and the termination of each of Foreign Subsidiary Revolving Credit Commitments,
the US Borrower shall not be entitled to be subrogated to any of the rights of
the Agents or the Lenders against the Borrowers or any collateral security or
guarantee or right of offset held by any Agent or any Lender for the payment of
the Foreign Subsidiary Obligations, nor shall the US Borrower seek any
reimbursement from any Borrower in respect of payments made by the US Borrower
hereunder.
11.3 MODIFICATION OF FOREIGN SUBSIDIARY OBLIGATIONS. The US
Borrower hereby consents that, without the necessity of any reservation of
rights against the US Borrower and without notice to or further assent by the US
Borrower, any demand for payment of the Foreign Subsidiary Obligations made by
any Agent, any Issuing Lender, any Lender may be rescinded by the Agent, the
Issuing Lender, or the Lenders, and the Foreign Subsidiary Obligations
continued, and the Foreign Subsidiary Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any Agent, any Issuing Lender,
or any Lender, and that this Agreement, any Notes, and the other Loan Documents,
including, without limitation, any collateral security document or other
guarantee or document in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Agents, the Issuing
Lenders, or the Lenders, may deem advisable from time to time, and, to the
extent permitted by applicable law, any collateral security or guarantee or
right of offset at any time held by any Agent, any Issuing Lender, or any
Lender, for the payment of the Foreign Subsidiary Obligations may be sold,
exchanged, waived, surrendered or released, all without the necessity of any
reservation of rights against the US Borrower and without notice to or further
assent by the US Borrower which will remain bound hereunder notwithstanding any
such renewal, extension, modification, acceleration, compromise,
amendment, supplement, termination, sale, exchange, waiver, surrender or
release. The Agents, the Issuing Lenders, and the Lenders shall not have any
obligation to protect, secure, perfect or insure any collateral security
document or property subject thereto at any time held as security for the
Foreign Subsidiary Obligations. When making any demand hereunder against the
US Borrower, the Agents, the Issuing Lenders, or the Lenders, may, but shall
be under no obligation to, make a similar demand on any other party or any
other guarantor, and any failure by any Agent, any Issuing Lender, or any
Lender, to make any such demand or to collect any payments from any Borrower
or any such other guarantor shall not relieve the US Borrower of its
obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the
Agents, the Issuing Lenders, or the Lenders, against the US Borrower. For the
purposes of this subsection "demand" shall include the commencement and
continuance of any legal proceedings.
11.4 WAIVER BY THE US BORROWER. The US Borrower waives the
benefits of division and discussion and any and all notice of the creation,
renewal, extension or accrual of the Foreign Subsidiary Obligations and notice
of or proof of reliance by the Agents, the Issuing Lenders, or the Lenders upon
the guarantee contained in this Section 11 or acceptance of the guarantee
contained in this Section 11, and the Foreign Subsidiary Obligations, and any of
them, shall conclusively be deemed to have been created, contracted, continued
or incurred in reliance upon the guarantee contained in this Section 11, and all
dealings between the US Borrower and the Agents, the Issuing Lenders, or the
Lenders shall likewise be conclusively presumed to have been had or consummated
in reliance upon the guarantee contained in this Section 11. The US Borrower
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the Specified Borrower or the US Borrower with respect
to any Specified Obligations. This guarantee shall be construed as a continuing
absolute and unconditional guarantee of payment without regard to the validity,
regularity or enforceability of this Agreement, any Note or any other Loan
Document, including, without limitation, any collateral security or guarantee
therefor or right of offset with respect thereto at any time or from time to
time held by any Agent, any Issuing Lender, or any Lender and without regard to
any defense, setoff or counterclaim which may at any time be available to or be
asserted by any Borrower against any Agent, any Issuing Lender, or any Lender,
or any other Person, or by any other circumstance whatsoever (with or without
notice to or knowledge of any Borrower or the US Borrower) which constitutes, or
might be construed to constitute, an equitable or legal discharge of any
Borrower for any of its Foreign Subsidiary Obligations, or of the US Borrower
under the guarantee contained in this Section 11 in bankruptcy or in any other
instance, and the obligations and liabilities of the US Borrower hereunder shall
not be conditioned or contingent upon the pursuit by any Agent, any Issuing
Lender or any Lender or any other Person at any time of any right or remedy
against any Foreign Subsidiary Borrower or against any other Person which may be
or become liable in respect of any Foreign Subsidiary Obligations or against any
collateral security or guarantee therefor or right of offset with respect
thereto. The guarantee contained in this Section 11 shall remain in full force
and effect and be binding in accordance with and to the extent of its terms upon
the US Borrower and the successors and assigns thereof, and shall inure to the
benefit of the Lenders and their successors, indorsees, transferees and assigns,
until the Foreign Subsidiary Obligations shall have been satisfied in full and
the Foreign Subsidiary Revolving Credit Commitments shall be
terminated, notwithstanding that from time to time during the term of this
Agreement any Foreign Subsidiary Borrower may be free from any Foreign
Subsidiary Obligations.
11.5 REINSTATEMENT. This guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any Foreign Subsidiary Obligations is rescinded or must otherwise be
restored or returned by any Agent, any Issuing Lender, or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the US
Borrower or any Foreign Subsidiary Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the US Borrower, any Foreign Subsidiary Borrower or any substantial
part of their respective property, or otherwise, all as though such payments had
not been made.
SECTION 12. MISCELLANEOUS
12.1 AMENDMENTS AND WAIVERS. Neither this Agreement, any Note, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or otherwise modified except in accordance with the provisions of
this subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Specified Agent, as the case may be, may, from time to
time, (a) enter into with any Credit Party written amendments, supplements or
modifications hereto and to any Notes and the other Loan Documents for the
purpose of adding any provisions to this Agreement or any Notes or the other
Loan Documents or changing in any manner the rights of the Secured Parties or
any Credit Party or any other Person hereunder or thereunder (including, without
limitation, for the purpose of adding additional Tranches of Term Loans after
the Closing Date) or (b) waive, on such terms and conditions as the Required
Lenders or the Specified Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or any Notes or the other
Loan Documents or any Default or Event of Default and its consequences;
PROVIDED, HOWEVER, that no such waiver and no such amendment, supplement or
modification shall directly (i) reduce the aggregate amount or extend the
scheduled date of maturity of any Loan or of any installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or thereunder or extend
the scheduled date of any payment thereof or increase the aggregate amount or
extend the expiration date of any Lender's Specified Revolving Credit
Commitment, in each case without the consent of each Lender affected thereby,
(ii) amend, modify or waive any provision of this subsection 12.1 (except as
contemplated by clause (xi) below) or reduce the percentage specified in the
definition of Required Lenders or consent to the assignment or transfer by any
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents or release collateral having an aggregate value in excess of the
Equivalent Amount of $30,000,000 or release the US Borrower from any Guarantee
Obligation under the Loan Documents, in each case, except as set forth in
subsection 10.10, without the written consent of all the Lenders, (iii) amend,
modify or waive any provision of subsection 2.12 and Sections 3 or 10 (to the
extent applicable to Swing Line Notes or Swing Line Lenders) without the written
consent of the then Swing Line Lenders, (iv) except as specified in clause (i)
above, amend, modify or waive any provision of (w) subsection 2.5 (to the extent
such subsection 2.5 relates to the US Tranche A Term Loans) without the written
consent of US Tranche A Term Loan Lenders the US Tranche A Term Loan Percentages
of which aggregate at least a majority, (x) subsection 2.5 (to the extent
such subsection 2.5 relates to the US Tranche B Term Loans) without the
written consent of US Tranche B Term Loan Lenders the US Tranche B Term Loan
Percentages of which aggregate at least a majority, (y) subsection 2.5 (to
the extent such subsection 2.5 relates to the US Sterling Term Loans) without
the written consent of US Sterling Term Loan Lenders the US Sterling Term
Loan Percentages of which aggregate at least a majority, (z) subsection 2.5
(to the extent such subsection 2.5 relates to the English Term Loans) without
the written consent of English Term Loan Lenders the English Term Loan
Percentages of which aggregate at least a majority, (v) amend, modify or
waive any provision of subsection 2.1, 2.2, 2.3 or 2.4 or Section 3 without
the written consent of the Specified Revolving Credit Lenders the Specified
Revolving Credit Commitment Percentages of which aggregate at least a
majority of the outstanding Specified Revolving Credit Commitments, (vi)
amend, modify or waive any provision of Section 10 without the written
consent of each Agent, (vii) amend, modify or waive the order of application
of prepayments specified in subsection 4.4(b) without the consent of (A) US
Revolving Credit Lenders the Total Credit Percentages (calculated for this
purpose without reference to outstanding US Term Loans, English Term Loans
and Foreign Subsidiary Revolving Credit Commitments) of which aggregate at
least a majority, (B) US Term Loan Lenders the Total Credit Percentages
(calculated for this purpose without reference to outstanding Revolving
Credit Commitments and English Term Loans) of which aggregate at least a
majority, (C) Specified Foreign Subsidiary Revolving Credit Lenders the Total
Credit Percentages (calculated for this purpose without reference to
outstanding Term Loans and other Specified Revolving Credit Commitments) of
which aggregate at least a majority, and (D) Specified English Term Loan
Lenders which hold a majority of the outstanding Specified English Term Loans
(the US Lenders and the Foreign Subsidiary Lenders referred to in clauses
(A), (B), (C), and (D), collectively, the "MAJORITY CLASS LENDERS"), (viii)
amend, modify or waive the provisions of any Specified Accommodation or any
Specified Accommodation Obligation without the written consent of the
Specified Issuing Lender, (ix) amend, modify or waive any provision of any
Loan Document that provides for the ratable sharing by the Secured Parties of
the proceeds of any realization on the security for the Obligations to
provide for a non-ratable sharing thereof, without the consent of the
Majority Class Lenders, (x) amend, modify or waive any provision herein that
(A) affects the Revolving Credit Lenders, or Term Loan Lenders (or any
tranche thereof) only, without the prior written consent of a majority in
interest of the Revolving Credit Lenders, Term Loan Lenders (or tranche
thereof), as the case may be, (B) adversely affects the Specified Lenders or
Specified Revolving Credit Lenders or Specified Term Lenders only, without
the prior written consent of a majority in interest of such Specified Lenders
or Specified Revolving Credit Lenders or Specified Term Lenders, as the case
may be, or (C) except as provided in the foregoing provisions of this
subsection 12.1, adversely affects the rights and interests of any of the
Specified Lenders differently from those of any other class of Specified
Lenders, without the prior written consent of a majority in interest of each
separate class of Specified Lenders affected thereby, (xi) if additional
Tranches of Term Loans are extended after the Closing Date with the consent
of the Required Lenders as required above, such Tranches may be included on a
PRO RATA basis (as is originally done with the US Tranche A Term Loans, the
US Tranche B Term Loans , the US Sterling Term Loans and the English Term
Loans) in the various prepayments or repayments required pursuant to
subsections 2.8 and 2.9, in any section providing scheduled installments for
any new Tranche of Term Loans and in the definition of Required Lenders and
may share in the Collateral on a ratable basis or (xii) amend or modify any
provision of this Agreement which would require a Lender to make a Loan with
an Interest Period in excess
of six months without the prior written consent of such Lender. Any such
waiver and any such amendment, supplement or modification shall apply equally
to each of the Lenders and shall be binding upon each of the Borrowers, the
Agents, the Lenders, and all future holders of any of the Obligations. In the
case of any waiver, the Credit Parties, the Lenders, and each of the Agents
shall be restored to their former position and rights hereunder and under the
outstanding Loans and the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
12.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three (3) Business Days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of any Borrower, the
Agents, the Issuing Lenders and the Swing Line Lenders, and as set forth on the
signature pages hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Loans or any Notes:
The Borrowers: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇ ▇▇▇▇▇ Limited
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: 011-44-1376-518-622
and
Hidden Creek Investments
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: 612-332-2012
The Administrative The Chase Manhattan Bank
Agent, the US ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lender or ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ Swing Line Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Lender: Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: The Chase Manhattan Bank
Loan & Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The English Chase Manhattan International Limited
Agent, the Euro Trinity Tower
Agent and the 9 ▇▇▇▇▇▇ ▇▇▇▇ Street
English Issuing London, England E19YT
Lender: Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇ Hurfford
Telecopy: 011-44-171-777-2360
with copies to: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Collateral The Chase Manhattan Bank
Agent: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
PROVIDED that any notice, request or demand to or upon the Specified Agent or
the Specified Lenders pursuant to subsection 2.2, 2.4, 2.5, 2.6, 2.7, 2.10, or
4.4 shall not be effective until received.
12.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
12.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Specified
Loans hereunder.
12.5 PAYMENT OF EXPENSES AND TAXES. Each Specified Borrower agrees
(a) to pay or reimburse the Specified Agent for all reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and any Notes and the other Loan Documents and any other documents prepared in
connection herewith or therewith (requested by or for the benefit of such
Borrower) other than any Assignment and
Acceptance, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Specified Agent, (b) to
pay or reimburse each Specified Lender and the Specified Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, any Notes,
the other Loan Documents and any such other documents, including, without
limitation, the reasonable fees and disbursements of one counsel representing
the Specified Agent and the Specified Lenders in each jurisdiction and, at
any time after and during the continuance of an Event of Default, to the
extent a conflict arises, of one additional counsel to all the Specified
Lenders, and (c) to pay, indemnify, and hold each Specified Lender and the
Specified Agent (and their respective trustees, directors, officers,
employees and agents) harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other similar taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of,
or consummation or administration of any of the transactions contemplated by,
or any amendment, supplement or modification of, or any waiver or consent
under or in respect of, this Agreement, any Notes, the other Loan Documents
and any such other documents (requested by or for the benefit of such
Borrower), and (d) to pay, indemnify, and hold each Specified Lender and the
Specified Agent (and their respective trustees, directors, officers,
employees and agents) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, any Notes, the other Loan Documents, the
Acquisition Documents, the Transactions or the use of the proceeds of the
Specified Loans in connection with the Transactions and any such other
documents (all the foregoing in this clause (d), collectively, the
"INDEMNIFIED LIABILITIES"), PROVIDED that the Specified Borrower shall have
no obligation hereunder to the Specified Agent, or any Specified Lender (or
their respective trustees, directors, officers, employees and agents) with
respect to indemnified liabilities arising from the gross negligence or
wilful misconduct of the indemnified party or, in the case of indemnified
liabilities arising under this Agreement, any Notes and the other documents,
from material breach by the indemnified party of this Agreement, any Notes or
the other Loan Documents, as the case may be. The agreements in this
subsection shall survive repayment of the Specified Loans and all other
amounts payable hereunder.
12.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrowers,
the Lenders, Agents, and all future holders of the Loans and their respective
successors and assigns, except that no Borrower may assign or transfer any of
its rights or obligations under this Agreement without the prior written consent
of each Lender.
(b) Any Specified Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
banks, insurance companies, mutual funds, or other financial institutions or
other entities ("SPECIFIED PARTICIPANTS") participating interests in any
Specified Loan owing to such Lender, any Note held by such Lender, any Specified
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Specified
Lender of a participating interest to a Specified Participant, such Specified
Lender's obligations under this Agreement to the other parties to this Agreement
shall
remain unchanged, such Specified Lender shall remain solely responsible for
the performance thereof, such Specified Lender shall remain the holder of any
such Specified Loan for all purposes under this Agreement and the other Loan
Documents, and the Specified Borrower and the Specified Agent shall continue
to deal solely and directly with such Specified Lender in connection with
such Specified Lender's rights and obligations under this Agreement and the
other Loan Documents. No Specified Lender shall permit any Specified
Participant to have the right to consent to any amendment or waiver in
respect of this Agreement or any of the other Loan Documents, except that
such Lender may grant such Specified Participant the right to consent to any
amendment or waiver in respect of this Agreement or the other Loan Documents
that would, directly or indirectly, (i) reduce the aggregate amount or extend
the final maturity of any Specified Loan, or reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof or (ii) consent to the assignment or transfer by the Specified
Borrower of any of its rights and obligations under this Agreement or any of
the other Loan Documents. Each Specified Borrower agrees that if amounts
outstanding under this Agreement and the Specified Loans are due or unpaid,
or shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Specified Participant shall be deemed
to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as a Specified
Lender under this Agreement or any Note, PROVIDED that in purchasing such
participating interest, such Specified Participant shall be deemed to have
agreed to share with the Specified Lenders the proceeds thereof as provided
in subsection 12.7(a) as fully as if it were a Specified Lender hereunder.
The Specified Borrower also agrees that each Specified Participant shall be
entitled to the benefits of subsections 4.5, 4.6 and 4.7 with respect to its
participation in the Specified Commitments and the Specified Loans and
Specified Accommodations outstanding from time to time as if it was a
Specified Lender; PROVIDED that in the case of subsection 4.6 and 4.7, such
Specified Participant shall have complied with the requirements of said
subsection and PROVIDED, FURTHER, that no Specified Participant shall be
entitled to receive any greater amount pursuant to any such subsection than
the transferor Specified Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Specified Lender to such Specified Participant had no such transfer occurred.
(c) Any Specified Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time and from time to
time assign to any other Specified Lender of the same class, any local affiliate
thereof or a Related Fund of such Specified Lender or, with the consent of the
Specified Agent and the Specified Borrower (such consents not to be unreasonably
withheld), to an additional bank, mutual fund, or financial or lending
institution or any fund that is regularly engaged in making, purchasing, or
investing in loans or securities (a "SPECIFIED ASSIGNEE") all or any part of its
rights and obligations under this Agreement and any Specified Notes pursuant to
an Assignment and Acceptance, executed by such Specified Assignee, such
assigning Lender (and, in the case of a Specified Assignee that is not then a
Specified Lender of the same class, a local affiliate thereof or a Related Fund
of such Specified Lender, by the Specified Agent) and delivered to the Specified
Agent for its acceptance and recording in the Specified Register; PROVIDED that
(x) each such transfer shall be in respect of a portion of such assigning
Lender's rights and obligations under this Agreement and any Specified Notes
equal to or in excess of the Equivalent Amount of $2,500,000 or, if such
assigning Lender's outstanding Commitment on the date of such assignment is less
than the Equivalent Amount of $2,500,000, the
aggregate of such assigning Lender's Commitments hereunder, or as otherwise
agreed by the Specified Borrower and the Specified Agent, (y) no Swing Line
Lender may transfer any portion of its Specified Swing Line Commitment
without the consent of the Specified Borrower (such consent not to be
unreasonably withheld) and (z) if any Lender assigns a part of its rights and
obligations under this Agreement in respect of any of its Specified Revolving
Credit Loans and/or Specified Revolving Credit Commitments to a Specified
Assignee, such Lender shall assign proportionate interests in its other
Revolving Credit Loans and Revolving Credit Commitments. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (y) the Specified
Assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a
Specified Lender hereunder with Specified Commitments as set forth therein,
and (z) the assigning Specified Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Specified Lender's
rights and obligations under this Agreement, such assigning Specified Lender
shall cease to be a party hereto).
(d) Each Specified Agent acting, for this purpose, as agent of the
Specified Borrower shall maintain at its address referred to in subsection 12.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"SPECIFIED REGISTER") for the recordation of the names and addresses of the
Specified Lenders and the Specified Commitments of, and principal amount of the
Specified Loans owing to, each Specified Lender from time to time and any
Specified Notes evidencing such Specified Loans. The entries in the Specified
Register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Agents and the Lenders may treat each Person whose name is
recorded in the Specified Register as the owner of the Specified Loans and any
Specified Notes evidencing such Specified Loans recorded therein for all
purposes of this Agreement. No assignment or transfer of any Specified Loan (or
portion thereof) or any Specified Note evidencing such Specified Loan shall be
effected unless and until it has been recorded in the Specified Register as
provided in this subsection 12.6(d). Any assignment or transfer of all or part
of a Specified Note shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Specified Note, accompanied by a
duly executed Assignment and Acceptance, and thereupon one or more new Specified
Notes in the same aggregate principal amount shall be issued to the designated
Assignee and the old Specified Notes shall be returned by the Specified Agent to
the Borrower marked "cancelled". The Specified Register shall be available for
inspection by the Borrowers or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Specified Lender and a Specified Assignee (and, in the case of a
Specified Assignee that is not, before such assignment, a Specified Lender, an
affiliate thereof or a Related Fund of such Specified Lender, by the Specified
Agent) together with payment, by a Specified Assignee, to the Specified Agent of
a registration and processing fee of the Equivalent Amount of $4,000 (except in
the case of a Specified Assignee that is a Specified Lender, an affiliate
thereof or a Related Fund of such Specified Lender) if the Specified Assignee is
not a Specified Lender prior to the execution of the Specified Assignment and
Acceptance and $1,000 otherwise, the Specified Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Specified
Register and give notice of such
acceptance and recordation to the assigning Specified Lender, the Specified
Assignee and the Specified Borrower. On or prior to such effective date, if
requested, the Specified Borrower, at its own expense, shall execute and
deliver to the Specified Agent (in exchange for any Specified Revolving
Credit Note, Specified Swing Line Note or Specified Term Note of the
assigning Specified Lender) a new Specified Revolving Credit Note, Specified
Swing Line Note or Specified Term Note, as the case may be, to the order of
such Specified Assignee in an amount equal to the Specified Revolving Credit
Commitment, Specified Swing Line Commitment or portion of the Specified Term
Loan, as the case may be, assumed by it pursuant to such Specified Assignment
and Acceptance and, if the assigning Specified Lender has retained a
Specified Revolving Credit Commitment, Specified Swing Line Commitment or
portion of a Specified Term Loan hereunder, a new Specified Revolving Credit
Note, Specified Swing Line Note or Specified Term Note, as the case may be,
to the order of the assigning Specified Lender in an amount equal to the
Specified Revolving Credit Commitment or Specified Term Loan, as the case may
be, retained by it hereunder. Such new Specified Notes shall be in the form
of the Specified Note replaced thereby.
(f) The Specified Borrower authorizes each Specified Lender to
disclose to any Specified Participant or Specified Assignee (each, a "SPECIFIED
TRANSFEREE") and any prospective Specified Transferee any and all financial
information in such Specified Lender's possession concerning the Credit Parties
and their Affiliates which has been delivered to such Specified Lender by or on
behalf of the Credit Parties pursuant to this Agreement or which has been
delivered to such Specified Lender by or on behalf of the Credit Parties in
connection with such Specified Lender's credit evaluation of the Specified
Borrower and its Affiliates prior to becoming a party to this Agreement, under
the condition such Specified Transferee or prospective Specified Transferee
agrees to comply with the provisions of subsection 12.16.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Specified Loans and Specified Notes relate only to absolute assignments and that
such provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by US Lender of any Loan
or Note to any Federal Reserve Bank in accordance with applicable law.
12.7 ADJUSTMENTS; SET-OFF. (a) If any Specified Lender (a
"BENEFITTED SPECIFIED LENDER") shall at any time receive any payment of all or
part of the Specified Obligations owing to it or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in subsection 9(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Specified Lender, if any, in respect of the Specified
Obligations owing to such other Specified Lender, such benefitted Specified
Lender shall purchase for cash from the other Specified Lenders a participating
interest in such portion of the Specified Obligations owing to each such other
Specified Lender, or shall provide such other Specified Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such benefitted Specified Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Specified
Lenders; PROVIDED, HOWEVER, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Specified Lender, such
purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Specified
Lenders provided by law, each Specified Lender shall have the right, without
prior notice to the Specified Borrower, any such notice being expressly waived
by the Specified Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Specified Borrower hereunder or under any
Specified Notes and not paid by the Specified Borrower after expiration of any
applicable grace periods (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Specified Lender or any branch or
agency thereof to or for the credit or the account of the Specified Borrower.
Each Specified Lender agrees promptly to notify the Specified Borrower and the
Specified Agent after any such set-off and application made by such Specified
Lender, PROVIDED that the failure to give such notice shall not affect the
validity of such set-off and application.
12.8 COUNTERPARTS. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with each of the Borrowers and Agents.
12.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Credit Parties and the Secured Parties with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any of the Agents or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
12.11 JUDGMENT CURRENCY.
(a) If, for the purpose of obtaining or enforcing judgment against
any Credit Party in any court in any jurisdiction, it becomes necessary to
convert into any other currency (such other currency being hereinafter in this
subsection 12.11 referred to as the "JUDGMENT CURRENCY") an amount due in a
particular currency (the "DENOMINATED CURRENCY") under any Loan Document, the
conversion shall be made at the rate of exchange prevailing on the Business Day
immediately preceding the date of actual payment of the amount due, in the case
of any proceeding in the courts of any jurisdiction that will give effect to
such conversion being made on such date, or the date on which the judgment is
given, in the case of any proceeding in the courts of any other jurisdiction
(the applicable
date as of which such conversion is made pursuant to this subsection 12.11 being
hereinafter in this subsection 12.11 referred to as the "JUDGMENT CONVERSION
DATE").
(b) If, in the case of any proceeding in the court of any
jurisdiction referred to in subsection 12.11(a), there is a change in the rate
of exchange prevailing between the Judgment Conversion Date and the time of
actual receipt of the amount due in immediately available funds, the applicable
Credit Party shall pay such additional amount (if any, but in any event not a
lesser amount) as may be necessary to ensure that the amount actually received
in the Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount of Denominated Currency which could
have been purchased with the amount of the Judgment Currency stipulated in the
judgment or judicial order at the rate of exchange prevailing on the Judgment
Conversion Date.
(c) Any amount due from any Credit Party under this subsection
12.11 shall be due as a separate debt and shall not be affected by judgment
being obtained for any other amounts due under or in respect of any of the Loan
Documents.
(d) The term "RATE OF EXCHANGE" in this subsection 12.11 means the
spot rate of exchange at which the Specified Agent would, on the relevant date
at or about 12:00 noon, be prepared to sell Denominated Currency against the
Judgment Currency.
12.12 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
12.13 SUBMISSION TO JURISDICTION; WAIVERS. Each of the Borrowers
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in subsection 12.2
or at such other address of which any Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction;
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages; and
(f) with respect to the Foreign Subsidiary Borrowers, appoints
the US Borrower, as its agent (in such capacity, the "PROCESS AGENT")
to receive on its behalf service of copies of the summons and complaint
and any other process that may be served in any such proceeding.
Service may be made on the Process Agent at its address specified above
or on the Specified Foreign Subsidiary Borrower at its address
specified hereunder, in each case in the manner provided for the giving
of notices in subsection 12.2 hereof.
12.14 ACKNOWLEDGEMENTS. Each of the Borrowers hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and any Notes and the other
Loan Documents;
(b) no Secured Party has any fiduciary relationship with or
duty to the Credit Parties arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship
between the Secured Parties, on one hand, and the Credit Parties, on
the other hand, in connection herewith or therewith is solely that of
creditor and debtor; and
(c) no joint venture exists among the Secured Parties or among
the Credit Parties and the Secured Parties.
12.15 WAIVERS OF JURY TRIAL. EACH BORROWER, THE LENDERS, AND EACH
AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.16 CONFIDENTIALITY. Each Specified Lender agrees to keep
confidential any information obtained by it pursuant hereto and the other Loan
Documents identified as confidential at the time of delivery in accordance with
such Lender's customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
trustees, officers, directors, employees, representatives, attorneys, agents or
affiliates who are involved in the Transactions and are advised of the
confidential nature of such information, (b) to the extent such information
presently is or hereafter becomes available to such Lender on a non-confidential
basis from any source or such information that is in the public domain at the
time of disclosure, (c) to the extent disclosure is required by law, regulation,
subpoena or judicial order or process (provided that notice of such requirement
or order shall be promptly furnished to the Specified Borrower unless such
notice is legally prohibited) or requested or required by bank regulators or
auditors or any administrative body, commission, or other Governmental Authority
to whose jurisdiction
such Lender may be subject, (d) to assignees or participants or potential
assignees or participants or to professional advisors or direct or indirect
contractual counterparties in swap agreements provided in each case such
Person agrees to be bound by the provisions of this subsection 12.16, (e) to
the extent required in connection with any litigation between any Credit
Party and any Specified Lender with respect to the Specified Loans or this
Agreement and the other Loan Documents, (f) to rating agencies, their
employees, representatives, attorneys, agents or affiliates who are involved
in the Transactions and are advised of the confidential nature of such
information and agree to be bound by provisions of this subsection 12.16, (g)
to the National Association of Insurance Commissioners and (h) with the
Specified Borrower's prior written consent, PROVIDED THAT, in no event shall
any confidential information be disclosed to the Customers. The agreements in
this subsection shall survive repayment of the Specified Loans and all other
amounts payable hereunder.
[rest of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BORROWERS
▇.▇. ▇▇▇▇▇▇ AUTOMOTIVE CASTINGS, INC.,
as US Borrower
By: Signature Illegible
Name:
Title:
AUTOMOTIVE COMPONENTS INVESTMENTS
LIMITED, as English Bidco
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇ LIMITED,
as English Borrower and Euro Borrower
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name:
Title:
AGENTS
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral Agent
and as a Lender
By: Signature Illegible
Name:
Title:
CHASE MANHATTAN INTERNATIONAL
LIMITED, as English Agent and Euro Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
Title: Second Vice President
BANK OF AMERICA NT & SA,
as Syndication Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------
Name:
Title: Managing Director
ADMINISTRATIVE SCHEDULE TO
CREDIT AGREEMENT
I. Available Currencies.
US BORROWER: Dollars and, with respect to the US Sterling Term Loans
only, Pounds Sterling.
ENGLISH BORROWER: Pounds Sterling
EURO BORROWER: Euro
II. Base Rates and Interest Payment Dates.
US BORROWER: DOLLARS - "BASE RATE": for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof: "PRIME
RATE" shall mean the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at
its principal office in New York City; "BASE CD RATE" shall mean the
sum of (a) the product of (i) the Three-Month Secondary CD Rate and
(ii) a fraction, the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b) the C/D
Assessment Rate; "THREE-MONTH SECONDARY CD RATE" shall mean, for any
day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the
public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it; and "FEDERAL
FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate, or
both, for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Base Rate shall be determined without regard to
clause (b) or (c), or both, of the first sentence of this definition,
as appropriate, until the
the circumstances giving rise to such inability no longer exist. Any
change in the Base Rate due to a change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate shall be effective on the
effective day of such change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate, respectively; "C/D ASSESSMENT RATE"
shall mean for any day as applied to the Base CD Rate, the net annual
assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by the Administrative Agent to be payable on such day to
the Federal Deposit Insurance Corporation or any successor ("FDIC")
for FDIC's insuring time deposits made in Dollars at offices of the
Administrative Agent in the United States; and "C/D RESERVE
PERCENTAGE" shall mean, for any day as applied to the CD Base Rate,
that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board, for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in New
York City with deposits exceeding one billion Dollars in respect of
new non-personal time deposits in Dollars in New York City having a
three month maturity and in an amount of $100,000 or more.
Interest shall be payable on the last day of each March, June,
September, and December and shall be calculated on the basis of 360
days when based on the Federal Funds Effective Rate or the CD Base
Rate.
US BORROWER: POUNDS STERLING - Same as English Borrower below.
ENGLISH BORROWER: Base Rate means the rate that the English Agent
announces from time to time as its Base Rate, as in effect from time to
time plus 0.25%.
EURO BORROWER: Base Rate means the rate that the Euro Agent determines
from time to time to be its cost of funds for obtaining the requested
amount of euro for the Specified Interest Period, as in effect from
time to time.
III. Eurocurrency Base Rates and Permitted Interest Periods.
US BORROWER: DOLLARS - "EUROCURRENCY BASE RATE": with respect to each
day during each Interest Period pertaining to a Eurocurrency Loan, the
rate per annum equal to the rate at which Chase is offered Dollar
deposits at or about 10:00 a.m., New York City time, two Business Days
prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurocurrency Loans are then being
conducted for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to the
amount of its Eurocurrency Loan to be outstanding during such Interest
Period.
Permitted Interest Periods shall be one, two, three, six or to the
extent available to all US Lenders, nine or twelve months and interest
shall be calculated on the basis of a 360-day year.
US BORROWER: POUNDS STERLING - Same as English Borrower below.
ENGLISH BORROWER: "EUROCURRENCY BASE RATE": with respect to each day
during each Interest Period pertaining to a Loan, a rate per annum
(rounded upward to the
2
nearest 1/100th of 1%) equal to the sum of (a) LIBOR for such Interest
Period and (b) the rate per annum calculated by the English Agent in
accordance with Schedule 1.1(B); "LIBOR" means in relation to any
Interest Period, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100th of 1%) quoted at or about 11:00 a.m., London time,
on the Quotation Date for such period on that page of the Telerate
Screen which displays British Bankers Association Interest Settlement
Rates for deposits in Pounds Sterling of the equivalent amount for such
period (such page being currently 3750) or, if such page or such
service shall cease to be available, such other page or such other
service (as the case may be) for the purpose of displaying British
Bankers Association Interest Settlement Rates for Pounds Sterling as
the English Agent, after consultation with the Lenders and the
Borrower, shall select PROVIDED that if no such rate is displayed for
Pounds Sterling and the relevant period and the English Agent has not
selected an alternative service on which two or more such quotations
are displayed, "LIBOR" shall mean the arithmetic mean (rounded upwards,
if necessary, to the nearest 1/100th of 1%) of the rates (as notified
to the English Agent) at which each of the Reference Banks was offering
to prime banks in the London Interbank Market deposits in Pounds
Sterling of such amount and for such period at or about 11:00 a.m.,
London time, on the Quotation Date for such period; "REFERENCE BANKS"
means the principal London offices of The Chase Manhattan Bank and/or
such other bank or banks as may from time to time be agreed between the
English Agent and the English Borrower; and "QUOTATION DATE" means in
relation to any period for which an interest rate is to be determined
hereunder, the day on which quotations would ordinarily be given by
prime banks in the London Interbank Market for deposits in the currency
in relation to which such rate is to be determined for delivery on the
first day of that period, provided that, if, for any such period,
quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
EURO BORROWER: "EUROCURRENCY BASE RATE": with respect to each day
during each Interest Period pertaining to a Eurocurrency Loan, the rate
per annum equal to the sum of (a) the rate at which Chase is offered
euro deposits at or about 10:00 a.m., London time, two Business Days
prior to the beginning of such Interest Period in the interbank market
where the foreign currency and exchange operations in respect of its
Eurocurrency Loans are then being conducted for delivery on the first
day of such Interest Period for the number of days comprised therein
and in an amount comparable to the amount of its Eurocurrency Loan to
be outstanding during such Interest Period and (b) the rate per annum
calculated by the English Agent in accordance with Schedule 1.1(B).
Permitted Interest Periods shall be one, two, three, six or to the
extent agreed to by the English Lenders or the Euro Lenders, as the
case may be, or such other periods as may be available to all of the
Specified Lenders and interest shall be calculated on the basis of a
360-day year.
IV. Available Accommodations
US BORROWER: Letters of Credit in an amount not to exceed
$5,000,000.
3
ENGLISH BORROWER: Letters of Credit in an amount not to
exceed L5,000,000 plus the Bank Guarantee
Letters of Credit.
V. Swing Line Lenders
US BORROWER: Chase in an amount not to exceed $5,000,000.
ENGLISH BORROWER: Chase in an amount not to exceed L3,000,000;
PROVIDED that the minimum amount provision in
subsection 2.12(a) shall not apply to such Swing
Line Loans.
VI. Cash Equivalents.
DOLLARS. (a) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed or insured by the United
States Government or any agency thereof, (b) certificates of deposit,
time deposits, overnight bank deposits, bankers acceptances and
repurchase agreements of any commercial bank which has, or whose
obligations are guaranteed by an affiliated commercial bank which has
capital and surplus in excess of $500,000,000 having maturities of one
year or less from the date of acquisition, (c) commercial paper of an
issuer rated at least A-1 by Standard & Poor's Corporation or P-1 by
▇▇▇▇▇'▇ Investors Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments, (d) money market
accounts or funds with or issued by Qualified Issuers, (e) repurchase
obligations with a term of not more than 90 days for underlying
securities of the types described in clause (a) above entered into with
any bank meeting the qualifications specified in clause (b) above, and
(f) demand deposit accounts maintained in the ordinary course of
business with any Lender or with any bank that is not a Lender not in
excess of $100,000 in the aggregate on deposit with any such bank;
"QUALIFIED ISSUER" means any commercial bank (a) which has, or whose
obligations are guaranteed by an affiliated commercial bank which has,
capital and surplus in excess of $500,000,000 and (b) the outstanding
short-term debt securities of which are rated at least A-1 by Standard
& Poor's Corporation or at least P-1 by ▇▇▇▇▇'▇ Investors Service,
Inc., or carry an equivalent rating by a nationally recognized rating
agency if both of the two named rating agencies cease publishing
ratings of investments.
POUNDS STERLING. (a) any credit balances, realizable within three (3)
months, on any bank or other deposit, savings or current account held
in the United Kingdom (or any other jurisdiction from which cash is
readily remittable to the United Kingdom); (b) cash in hand; (c) gilt
edged securities; (d) Sterling commercial paper maturing not more than
twelve (12) months from the date of issue and rated A-1 by Standard &
Poor's Corporation or P-1 by ▇▇▇▇▇'▇ Investor Services Inc.; (e) any
deposit with or acceptance maturing not more than one (1) year after
issue accepted by an institution authorized under the Banking ▇▇▇ ▇▇▇▇
or a Bank; and (f) Sterling denominated debt securities having not more
than one (1) year until final maturity and listed on a recognized stock
exchange and rated at least AA by Standard & Poor's Corporation or Aa
by ▇▇▇▇▇'▇ Investors Services Inc.
4
VII. Specified Notice Times
US BORROWER: DOLLARS AND POUNDS STERLING - (a) Eurocurrency borrowings,
12:00 noon New York City time three Business Days prior to the
applicable event and (b) Base Rate borrowings, 12:00 noon New York City
time one Business Days prior to the applicable event.
ENGLISH BORROWER: 12:00 noon London time three Business Days prior to
the applicable event.
EURO BORROWER: 12:00 noon London time three Business Days prior to the
applicable event.
VIII. Specified Revolving Credit Commitment Periods.
US BORROWER: the period from and including the Closing Date to, but not
including, the Specified Revolving Credit Commitment Termination Date
or such earlier date on which the US Revolving Credit Commitments are
terminated (whether pursuant to Section 9 or otherwise).
ENGLISH BORROWER: the period from and including the Closing Date to,
but not including, the Scheduled Revolving Credit Commitment
Termination Date or such other earlier date on which the English
Revolving Credit Commitments are terminated (whether pursuant to
Section 9 or otherwise).
EURO BORROWER: the period from and including the Closing Date to, but
not including, the Scheduled Revolving Credit Commitment Termination
Date or such other earlier date on which the Euro Revolving Credit
Commitments are terminated (whether pursuant to Section 9 or
otherwise).
IX. Specified Revolving Credit Commitment Termination Date.
US BORROWER: the Scheduled Revolving Credit Commitment Termination
Date.
ENGLISH BORROWER: the Scheduled Revolving Credit Commitment Termination
Date.
EURO BORROWER: the Scheduled Revolving Credit Commitment Termination
Date.
5
SCHEDULE 1.1 TO
CREDIT AGREEMENT
US COMMITMENTS
US TRANCHE A US STERLING
US LENDERS TERM LOAN US TRANCHE B TERM LOAN US REVOLVING
---------- COMMITMENT TERM LOAN COMMITMENT CREDIT
---------- COMMITMENT ----------- COMMITMENT
---------- --------------
The Chase $ 35,000,000 $ 95,000,000 L5,420,000 $37,500,000
Manhattan Bank
Bank of America
NT & SA $ 35,000,000 $ 95,000,000 L5,420,000 $37,500,000
------------ ------------ ----------- -----------
TOTAL $70,000,000 $190,000,000 L10,840,000 $75,000,000
ENGLISH COMMITMENTS
ENGLISH ENGLISH
TERM LOAN REVOLVING CREDIT
ENGLISH LENDERS COMMITMENT COMMITMENT
--------------- -------------- ------------
The Chase Manhattan Bank L5,420,000 $10,000,000
Bank of America NT & SA L5,420,000 $10,000,000
-------------- -----------
TOTAL L10,840,000 $20,000,000
EURO COMMITMENTS
EURO
REVOLVING CREDIT
EURO LENDERS COMMITMENT
------------ -----------------
The Chase Manhattan Bank $10,000,000
Bank of America NT & SA $10,000,000
-----------------
TOTAL $20,000,000
6
SCHEDULE 1.1(B) TO
CREDIT AGREEMENT
1 The rate per annum referred to in clause (b) of the definition of
"Eurocurrency Base Rate" relative to each English Loan and Euro Loan
where (and to the extent that) English Lenders or Euro Lenders, as the
case may be, making such Loans are subject to Additional Cost, will be,
subject as hereinafter provided, for the Interest Period relating to
such Loan (or, if longer than three (3) months, for each consecutive
period for three (3) months within such Interest Period and for any
balance of such Interest Period) (which Interest Period if not longer
than three (3) months and each other such period is herein referred to
as a "Relevant Period") the percentage rate (or the arithmetic average
of the percentage rates where there is more than one Reference Bank
supplying the same) supplied by the Reference Banks (or such of them as
supply it to the English Agent or the Euro Agent, as the case may be)
arrived at by applying the following formula in relation to each
Reference Bank:
In relation to a Loan denominated in Pounds Sterling:
Additional Cost = BY + S(Y-Z) + F X 0.01 % per annum
-----------------------------
100 - (B+S)
In relation to a Loan denominated in any other currency:
Additional Cost = F X 0.01 % per annum
-------
300
Where:
B = The percentage of such Reference Bank's eligible
liabilities then required to be held on a
non-interest deposit account with the Bank of England
pursuant to the cash ratio requirements of the Bank
of England.
Y = The rate at which Pounds Sterling deposits in an
amount approximately equal to the principal amount of
such Loan are offered by such Reference Bank to
leading banks in the London Interbank Market at or
about 11:00 a.m. London time on the first day of the
Relevant Period for a period comparable to the
Relevant Period.
S = The percentage of such Reference Bank's eligible
liabilities then required to be placed as a special
deposit with the Bank of England.
Z = The percentage interest rate per annum allowed by
the Bank of England on special deposits.
F = The charge payable by such Reference Bank to the
Financial Services Authority under paragraph 2.02 or
2.03 (as appropriate) of the Fees Regulations but
where for this purpose, the figure in paragraph 2.02b
and 2.03b will be deemed to be zero expressed in
pounds per (pound)1 million of the fee base of such
Reference Bank.
7
For purposes of this paragraph, "eligible liabilities" and "special
deposits" shall bear the meanings ascribed to them from time to time by
the Bank of England and "fee base" has the meaning given to it in the
Fees Regulations, and "Fees Regulations" means Banking Supervision
(Fees) Regulations 1999 and/or any other regulations governing the
payment of fees for banking supervision. "Additional Cost" means the
cost imputed to the English Lenders or the Euro Lenders, as the case
may be, of compliance with (a) the Mandatory Liquid Assets requirements
of the Bank of England and/or the banking supervision or other costs of
the Financial Services Authority as determined in accordance with this
Schedule 1.1(B) and (b) any other applicable Governmental Authority or
central bank requirement relating to any Loan made through a branch in
the jurisdiction of the currency of that Loan.
2 In the application of the above formula, B, Y, S, Z and F will be
included in the formula as figures and not as percentages, e.g., if B =
0.5% and Y = 15%, BY will be calculated as 0.5 x 15 and not as 0.5% x
15%.
3 The Additional Cost computed by the English Agent in accordance with
this Schedule shall be rounded upward, if necessary to four (4) decimal
places.
4 The calculation in respect of the Additional Cost for each English Loan
denominated in Pounds Sterling will be made by the English Agent on the
first day of each Relevant Period.
5 Calculations will be made on the basis of a year of 365 days and the
actual number of days elapsed.
6 If no Reference Bank furnishes the appropriate information for the
purposes of this Schedule, the Additional Cost shall be determined by
the English Agent on the basis of such other information and quotations
as the English Agent shall reasonably determine to be appropriate.
7 In the event of a change in circumstances (including the imposition of
alternative or additional official requirements, excluding capital
adequacy requirements) which renders the above formula inappropriate in
the reasonable opinion of the English Agent, the English Agent shall
promptly notify the English Borrower and the English Lenders thereof
and (after consultation with the Reference Banks and the English
Borrower) shall notify the English Borrower of the manner in which the
rate for the purposes of paragraph (b) of the definition of
"Eurocurrency Base Rate" shall thereafter be determined (which manner
shall be determined in a bona fide manner and provide a fair assessment
of the additional cost to the English Lenders of compliance with the
relevant requirements of the Bank of England or other central bank or
the Financial Services Authority or any other applicable Governmental
Authority) and the English Borrower and the English Lenders shall be
bound thereby.
8
SCHEDULE 5.6
LITIGATION
None.
9
SCHEDULE 5.9
INTELLECTUAL PROPERTY
None.
10
SECTION 5.10
TAXES
11
SECTION 5.14
▇.▇. ▇▇▇▇▇▇ AUTOMOTIVE CASTINGS, INC.
LIST OF SUBSIDIARIES
NAME OF SUBSIDIARY OR NAME OF % OF CAPITAL
RELATED ENTITY DIRECT OWNER STOCK OWNED OR
--------------------- ---------------- BENEFICIALLY OWNED
------------------
French Holdings, Inc. ▇.▇. ▇▇▇▇▇▇ Automotive Castings, Inc. 100
▇.▇. ▇▇▇▇▇▇ Corporation French Holdings, Inc. 100
Allotech International, Inc. French Holdings, Inc. 100
▇.▇. ▇▇▇▇▇▇ FSC Corporation French Holdings, Inc. 100
Automotive Components ▇.▇. ▇▇▇▇▇▇ Automotive Castings, Inc. 100
Investments PLC
▇▇▇▇▇▇ ▇▇▇▇▇ Limited Automotive Components Investments PLC 100
▇▇▇▇▇▇ ▇▇▇▇▇ Castings Limited ▇▇▇▇▇▇ ▇▇▇▇▇ Limited 100
▇▇▇▇ (Presteigne) Limited ▇▇▇▇▇▇ ▇▇▇▇▇ Limited 100
UJP Tools Limited ▇▇▇▇▇▇ ▇▇▇▇▇ Limited 100
MAC Leasing Limited ▇▇▇▇▇▇ ▇▇▇▇▇ Limited 100
Burdon & Miles Limited ▇▇▇▇▇▇ ▇▇▇▇▇ Limited 100
▇▇▇▇▇▇ & Royston Limited ▇▇▇▇▇▇ ▇▇▇▇▇ Limited 100
Foundry Computational Services ▇▇▇▇▇▇ ▇▇▇▇▇ Limited 51
Limited
Ansola Acquisition Corp. S.R.L.(1) ▇.▇. ▇▇▇▇▇▇ Automotive Castings, Inc. 100
Fundiciones Viuda de Ansola, ▇.▇. ▇▇▇▇▇▇ Acquisition Corp. S.R.L. 100
Auxicomp Auxiliary Fundiciones Viuda ▇▇ ▇▇▇▇▇▇, ▇.▇. 20
Componentes, S.L.
--------
(1) Corporate participations in a Spanish S.R.L. (Sociedad de Responsabilided
Limitada) do not have the nature of securities, nor may they be called shares,
nor are they represented by share certificates.
12
SCHEDULE 5.15
ENVIRONMENTAL MATTERS
None.
13
SCHEDULE 5.19
BUSINESS LOCATIONS
PART I -- OWNED REAL PROPERTY
-----------------------------
▇.▇. ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ (Presteigne) Ltd.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ (Presteigne) Ltd.
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Ltd.
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
UJP Tools Ltd.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fundiciones Viuda ▇▇ ▇▇▇▇▇▇, ▇.▇.
Poligono ▇▇▇▇▇▇▇ s/n.
48277 Etxebarria
Vizcaya, Spain
14
PART II -- LEASED REAL PROPERTY
-------------------------------
M. J.L. French Corporation
Portion of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, pursuant to lease agreement
between ▇.▇. ▇▇▇▇▇▇ Corporation and Allotech International, Inc. dated March 30,
1995.
Portion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, pursuant to lease agreement
between ▇.▇. ▇▇▇▇▇▇ Corporation and Allotech International, Inc. dated August 1,
1988.
Lease of Apartment in Hiroshima, Japan by ▇.▇. ▇▇▇▇▇▇ Corporation in connection
with product development project with Ford and Mazda engineers.
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, pursuant to sublease agreement
between ▇.▇. ▇▇▇▇▇▇ Corporation and American Bumper & Mfg. Co. dated March 25,
1998.
N. ▇▇▇▇▇▇ ▇▇▇▇▇ Limited and Subsidiaries
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
Northeast side of Delamare Road, Cheshunt, Broxbourne.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ Industrial Estate, ▇▇▇▇▇▇, Braintree, Essex.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
15
SCHEDULE 8.2
EXISTING INDEBTEDNESS
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Loan Notes due 2000, principal amount (pound)210,000.
DEM800,000 overdraft facility for ▇▇▇▇ (Presteigne) Limited.
(pound)13,800 owed to ▇▇▇▇▇▇ ▇▇▇▇▇ Limited by Foundry Computational Services
Limited.
(pound)20,000 Barclaycard facility of ▇▇▇▇ (Presteigne) Limited.
Capitalized Leases of ▇▇▇▇▇▇ ▇▇▇▇▇ Limited and subsidiaries (described in
greater detail in Attachment A hereto).
Fundiciones Viuda ▇▇ ▇▇▇▇▇▇, ▇.▇. Peseta Denominated Debt (described in greater
detail in Attachment B hereto).
Fundiciones Viuda ▇▇ ▇▇▇▇▇▇, ▇.▇. Capitalized Leases (described in greater
detail in Attachment C hereto).
16
Attachment A
▇▇▇▇▇▇ ▇▇▇▇▇ Group
Capital Lease Schedule
12/31/98
1998
1/1/98 -------------------- 12/31/98
ORIGINATION ORIGINAL BEGINNING ENDING
DATE TERM LEASE AMT BALANCE ADDITIONS PAYMENTS BALANCE INTEREST
LEASING CO./DESCRIPTION ---------- ------- --------- ---------- --------- ---------- --------- ---------
▇▇▇▇▇▇ ▇▇▇▇▇ - CAPITAL
Lloyds bowmaker 600,000 252,034 94,486 178,778 21,230
White Arrow 28,751 19,206 19,812 0 608
Fleetlease 18,397 15,293 4,344 11,567 ▇▇▇
▇▇▇▇▇▇ 23,864 20,773 5,145 17,338 1,710
Highway 25,098 22,723 8,147 15,598 1,022
Fleetlease 20,875 16,372 5,913 11,459 1,000
Highway (HEVIY) - P ▇▇▇▇▇▇▇ 52,251 0 52,251 14,301 40,821 2,871
Barclays Mercantile 399,521 178,582 93,103 92,147 6,668
Barclays Mercantile 1,136,395 968,253 196,085 823,921 51,753
Subtotal 1,191,629
KAYES - CAPITAL
Audi Quattro - R ▇▇▇▇▇ Aug-98 3 yrs 33,655 0 33,655 6,343 29,528 2,216
Volvo 850 - G Whitney Apr-96 3 yrs 23,974 15,232 5,192 10,410 370
Volvo 960 - P Davidson Aug-96 3 yrs 24,772 13,188 5,469 8,338 619
Chrysler Cherokee - G ▇▇▇▇▇▇▇ ▇▇▇-98 3 yrs 21,608 21,608 6,103 18,307 2,802
Jaguar Finance 2 yrs 39,842 14,545 14,545 0 0
BMW 5231 - G ▇▇▇▇▇ Feb-96 3 yrs 24,169 13,209 4,553 8,940 284
Barclays Mercantile Apr-97 7 yrs 1,023,935 937,361 165,725 813,092 41,456
Subtotal 888,615
B&M CAPITAL
Mercedes E240 - P ▇▇▇▇▇▇ Oct-98 3 yrs 37,581 37,581 5,425 33,284 1,128
BMW 3231 Jul-98 3 yrs 26,182 26,182 5,951 21,649 1,418
Rover 620 Jun-95 3 yrs 19,992 5,713 0 5,728 0 15
Range Rover Jeep Jun-95 3 yrs 50,450 19,462 0 19,519 0 57
1st ▇▇▇▇▇▇ M/C Mar-93 5 yrs 609,880 181,371 0 75,045 120,383 14,057
Subtotal 175,316
W&R - CAPITAL
Audi A6 - P Royston Sep-98 3 yrs 29,532 0 29,532 3,739 26,394 601
Land Rover - ▇▇▇ ▇▇▇▇▇▇ Mar-98 3 yrs 53,891 0 53,891 14,120 42,850 3,080
Subtotal 69,244
Accounting adjustment L8,068
Group Total L2,316,736 L155,581
Conversion Rate 1.6595
Converted to US $ $3,844,623
18
Attachment B
Fundiciones Viuda de Ansola
Debt Schedule - 1999
(Amounts in Pesetas)
12/31/98 2/28/99
REFERENCE PRINCIPAL NEW LOANS PRINCIPAL
NUMBER INSTITUTION ORIGINATION MATURITY OUTSTANDING (PAYMENTS) OUTSTANDING
--------- ------------------------ -------------- ---------- ------------- ------------ -------------
7 Luzaro Bancogui 3/1994 3/2004 50,000,000 50,000,000
13 Luzaro BBK 7/1994 7/2004 20,000,000 20,000,000
16 Hispamer I 10/1995 11/2000 7,864,892 7,864,892
22 BBK II 4/1996 5/2001 19,072,369 1,907,237 17,165,132
18 Vitoria I 4/1996 4/2001 8,707,903 933,680 7,774,223
8 Bancogui IV 6/1998 6/2005 185,714,286 185,714,286
10 Bancogui II 7/1997 7/2004 7,200,000 7,200,000
11 Bancogui I 12/1996 12/2003 96,000,000 96,000,000
9 Bancogui III 7/1997 7/2004 16,800,000 16,800,000
14 Bankinter I 7/1997 7/2004 25,088,874 25,088,874
17 Hinspamer II 6/1997 7/2004 27,800,000 27,800,000
20 Vitoria III 5/1997 6/2004 19,400,000 19,400,000
19 Vitoria II 4/1997 4/2004 12,900,000 12,900,000
12 BBK III 3/1997 3/2004 17,339,608 17,339,608
31 BBK IV 6/1998 6/2005 65,000,000 65,000,000
21 Vitoria IV 7/1998 7/2005 100,000,000 100,000,000
15 Bankinter II 11/1998 11/2005 75,000,000 75,000,000
Hispamer III 2/1999 2/2006 75,000,000 75,000,000
Factored Receivables net of payts 0
Payments 0
753,887,932 72,159,083 826,047,015
19
Attachment C
ANSOLA LEASES 31 DECEMBER 1998
(Amounts in Pesetas)
PRINCIPAL
AMOUNT
REFERENCE REMAINING
NUMBER LEASES BANK MATURITY 12/31/98
--------- ------------------ ----------- -------------------------- -------------
28 BANKINTER BANKINTER MARCH 2002 49,470,189
1 UNILEASING HISPAMER JANUARY 2000 4,411,197
6 UNILEASING HISPAMER OCTOBER 2000 6,704,090
UNILEASING HISPAMER JANUARY 1999 245,497
UNILEASING HISPAMER JANUARY 1999 208,849
29 UNILEASING HISPAMER JULY 1999 1,600,634
30 UNILEASING HISPAMER JULY 1999 1,247,262
27 HISPAMER HISPAMER JULY 2000 5,444,339
24 HISPAMER HISPAMER NOVEMBER 2004 84,537,000
25 HISPAMER HISPAMER NOVEMBER 2004 15,030,261
5 LEASING VASCONIA NOVEMBER 2000 3,842,996
4 LEASING VASCONIA DECEMBER 2000 3,579,585
3 LEASING VASCONIA DECEMBER 2000 3,853,244
2 ADEFISA BBK MARCH 2000 9,924,782
26 ADEFISA BBK AUGUST 2002 14,513,584
23 BANCOGUI BANCOGUI SEPTEMBER 2001 5,638,550
TOTAL 210,252,059
20
SCHEDULE 8.3
EXISTING LIENS
None.
21
SCHEDULE 8.4
EXISTING GUARANTEE OBLIGATIONS
None.
22
SCHEDULE 8.9
EXISTING INVESTMENTS
See Schedule 5.14 hereof, which lists ownership of subsidiaries and related
entities.
In addition, Fundiciones Viuda ▇▇ ▇▇▇▇▇▇, ▇.▇. holds limited amounts of cash and
in highly liquid investments.
The following is a list of intercompany debt involving ▇.▇. ▇▇▇▇▇▇ Automotive
Castings, Inc. and its various subsidiaries:
2.548 billion Spanish Peseta demand note by Ansola Acquisition
Corporation in favor of ▇.▇. ▇▇▇▇▇▇ Automotive Castings, Inc.
US$16.9 million note by ▇.▇. ▇▇▇▇▇▇ Automotive Castings, Inc. in favor
of French Holdings, Inc.
US$75 million revolving facility by French Holdings, Inc. in favor of
▇.▇. ▇▇▇▇▇▇ Corporation.
US$75 million revolving facility by French Holdings, Inc. in favor of
Allotech International, Inc.
US$75 million revolving facility by French Holdings, Inc. in favor of
▇.▇. ▇▇▇▇▇▇ Automotive Castings, Inc.
23
SCHEDULE 8.11
TRANSACTIONS WITH AFFILIATES
Sublease Agreement between ▇.▇. ▇▇▇▇▇▇ Corporation and American Bumper & Mfg.
Co. dated March 25, 1998, for office space at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
Portion of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, pursuant to lease agreement
between ▇.▇. ▇▇▇▇▇▇ Corporation and Allotech International, Inc. dated March 30,
1995.
Portion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, pursuant to lease agreement
between ▇.▇. ▇▇▇▇▇▇ Corporation and Allotech International, Inc. dated August 1,
1988.
See the description of intercompany debt listed on Schedule 8.9 hereof.
24
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................1
1.1 DEFINED TERMS.........................................................1
1.2 OTHER DEFINITIONAL PROVISIONS........................................30
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS..................................30
2.1 REVOLVING CREDIT COMMITMENTS.........................................30
2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING.............................31
2.3 COMMITMENT FEE; ADMINISTRATIVE AGENT FEES............................31
2.4 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS.............32
2.5 TERM LOANS...........................................................33
2.6 PROCEDURE FOR TERM LOAN BORROWINGS...................................36
2.7 REPAYMENT OF LOANS...................................................36
2.8 OPTIONAL PREPAYMENTS.................................................38
2.9 MANDATORY PREPAYMENTS................................................38
2.10 CONVERSION AND CONTINUATION OPTIONS.................................41
2.11 MINIMUM AMOUNTS OF TRANCHES.........................................42
2.12 SWING LINE COMMITMENTS..............................................42
SECTION 3. ACCOMMODATIONS....................................................44
3.1 THE ACCOMMODATION COMMITMENTS........................................44
3.2 PROCEDURE FOR ISSUANCE OF SPECIFIED ACCOMMODATIONS...................45
3.3 FEES, COMMISSIONS AND OTHER CHARGES..................................46
3.4 ACCOMMODATION PARTICIPATIONS.........................................46
3.5 REIMBURSEMENT OBLIGATION OF THE SPECIFIED BORROWER...................47
3.6 OBLIGATIONS ABSOLUTE.................................................48
3.7 ACCOMMODATION PAYMENTS...............................................48
3.8 LETTER OF CREDIT APPLICATIONS........................................48
SECTION 4. GENERAL PROVISIONS................................................48
4.1 INTEREST RATES AND PAYMENT DATES.....................................48
4.2 COMPUTATION OF INTEREST AND FEES.....................................49
4.3 INABILITY TO DETERMINE INTEREST RATE.................................50
4.4 PRO RATA TREATMENT AND PAYMENTS......................................50
4.5 ILLEGALITY...........................................................54
4.6 REQUIREMENTS OF LAW..................................................54
4.7 TAXES .............................................................56
4.8 INDEMNITY............................................................59
4.9 REPLACEMENT OF SPECIFIED LENDER......................................60
4.10 REDENOMINATION AND ALTERNATIVE CURRENCIES...........................60
SECTION 5. REPRESENTATIONS AND WARRANTIES....................................60
5.1 FINANCIAL CONDITION..................................................61
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PAGE
5.2 NO CHANGE............................................................62
5.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.............................62
5.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS..............62
5.5 NO LEGAL BAR.........................................................62
5.6 NO MATERIAL LITIGATION...............................................62
5.7 NO DEFAULT...........................................................63
5.8 OWNERSHIP OF PROPERTY; LIENS.........................................63
5.9 INTELLECTUAL PROPERTY................................................63
5.10 TAXES .............................................................63
5.11 US FEDERAL REGULATIONS..............................................64
5.12 ERISA .............................................................64
5.13 INVESTMENT COMPANY ACT..............................................65
5.14 SUBSIDIARIES, ETC...................................................65
5.15 ENVIRONMENTAL MATTERS...............................................65
5.16 REGULATION H...................................................... 66
5.17 DELIVERY OF TRANSACTION DOCUMENTS.................................. 66
5.18 REPRESENTATIONS AND WARRANTIES CONTAINED IN THE TRANSACTION
DOCUMENTS..........................................................66
5.19 DISCLOSURE..........................................................67
5.20 GUARANTEE AND COLLATERAL AGREEMENT; MORTGAGES.......................67
5.21 SOLVENCY............................................................68
5.22 INSURANCE...........................................................68
5.23 SENIOR INDEBTEDNESS.................................................68
5.24 YEAR 2000 MATTERS...................................................68
SECTION 6. CONDITIONS PRECEDENT..............................................68
6.1 CONDITIONS TO INITIAL EXTENSIONS OF CREDIT...........................68
6.2 CONDITIONS TO EACH SPECIFIED LOAN....................................73
SECTION 7. AFFIRMATIVE COVENANTS.............................................74
7.1 FINANCIAL STATEMENTS.................................................74
7.2 CERTIFICATES; OTHER INFORMATION......................................75
7.3 PAYMENT OF OBLIGATIONS...............................................76
7.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.....................76
7.5 MAINTENANCE OF PROPERTY; INSURANCE...................................76
7.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS...............77
7.7 NOTICES .............................................................77
7.8 ENVIRONMENTAL LAWS...................................................78
7.9 PLEDGE OF AFTER ACQUIRED PROPERTY....................................79
7.10 ADDITIONAL SUBSIDIARIES.............................................79
7.11 INTELLECTUAL PROPERTY...............................................79
ii--
7.12 USE OF PROCEEDS.....................................................80
7.13 INTEREST RATE PROTECTION AGREEMENTS.................................80
SECTION 8. NEGATIVE COVENANTS................................................80
8.1 FINANCIAL CONDITION COVENANTS........................................80
8.2 LIMITATION ON INDEBTEDNESS...........................................81
8.3 LIMITATION ON LIENS..................................................83
8.4 LIMITATION ON GUARANTEE OBLIGATIONS..................................84
8.5 LIMITATION ON FUNDAMENTAL CHANGES....................................85
8.6 LIMITATION ON SALE OF ASSETS.........................................86
8.7 LIMITATION ON RESTRICTED PAYMENTS....................................87
8.8 LIMITATION ON CAPITAL EXPENDITURES...................................88
8.9 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES........................88
8.10 LIMITATION ON PAYMENTS AND MODIFICATIONS OF SUBORDINATED DEBT
INSTRUMENTS.........................................................90
8.11 LIMITATION ON TRANSACTIONS WITH AFFILIATES..........................91
8.12 LIMITATION ON SALES AND LEASEBACKS..................................92
8.13 LIMITATION ON CHANGES IN FISCAL YEAR................................92
8.14 RESTRICTIONS AFFECTING SUBSIDIARIES.................................92
8.15 LIMITATION ON LINES OF BUSINESS.....................................92
8.16 AMENDMENTS TO CORPORATE DOCUMENTS; TRANSACTION DOCUMENTS;
LICENSES...........................................................93
8.17 PASSIVE STATUS OF THE US BORROWER...................................93
SECTION 9. EVENTS OF DEFAULT.................................................93
SECTION 10. THE AGENTS.......................................................96
10.1 APPOINTMENT.........................................................96
10.2 DELEGATION OF DUTIES................................................97
10.3 EXCULPATORY PROVISIONS..............................................97
10.4 RELIANCE BY THE SPECIFIED AGENTS....................................97
10.5 NOTICE OF DEFAULT...................................................97
10.6 NON-RELIANCE ON AGENT AND LENDERS...................................98
10.7 INDEMNIFICATION.....................................................98
10.8 AGENTS IN THEIR INDIVIDUAL CAPACITY.................................98
10.9 SUCCESSOR AGENTS....................................................99
10.10 ADDITIONAL MINISTERIAL POWERS OF THE SPECIFIED AGENTS..............99
10.11 SPECIFIED ISSUING LENDER AND COLLATERAL AGENT......................99
10.12 ENGLISH AGENT AS TRUSTEE...........................................99
SECTION 11. GUARANTEE.......................................................100
11.1 GUARANTEE..........................................................100
iii--
11.2 WAIVER OF SUBROGATION..............................................100
11.3 MODIFICATION OF FOREIGN SUBSIDIARY OBLIGATIONS.....................100
11.4 WAIVER BY THE US BORROWER..........................................101
11.5 REINSTATEMENT......................................................102
SECTION 12. MISCELLANEOUS...................................................102
12.1 AMENDMENTS AND WAIVERS.............................................102
12.2 NOTICES............................................................104
12.3 NO WAIVER; CUMULATIVE REMEDIES.....................................105
12.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.........................105
12.5 PAYMENT OF EXPENSES AND TAXES......................................106
12.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.............106
12.7 ADJUSTMENTS; SET-OFF...............................................109
12.8 COUNTERPARTS.......................................................110
12.9 SEVERABILITY.......................................................110
12.10 INTEGRATION.......................................................110
12.11 JUDGMENT CURRENCY.................................................110
12.12 GOVERNING LAW.....................................................111
12.13 SUBMISSION TO JURISDICTION; WAIVERS...............................111
12.14 ACKNOWLEDGEMENTS..................................................112
12.15 WAIVERS OF JURY TRIAL.............................................112
12.16 CONFIDENTIALITY...................................................112
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
A-3 Form of Swing Line Note
B Participation Certificate
C Swing Line Loan Participation Certificate
D Assignment and Acceptance
E-1 Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
Counsel to the US Borrower
E-2 Form of English Opinion
F Closing Certificate
G-1 Form of Guarantee and Collateral Agreement
G-2 Form of Mortgage
H Form of Perfection Certificate
I Form of Sharing Agreement
J Form of Intercompany Note
K Form of Prepayment Option Notice
SCHEDULES
iv--
Administrative Schedule
1.1 Commitments
1.1(B) Eurocurrency Rate Formula
5.6 Litigation
5.9 Intellectual Property
5.10 Taxes
5.14 Subsidiaries, Joint Ventures, etc.
5.15 Environmental Matters
5.19 Filing Locations and Properties
8.2 Existing Indebtedness
8.3 Existing Liens
8.4 Existing Guarantee Obligations
8.9 Existing Investments
8.11 Existing Transactions with Affiliates
v--