EXHIBIT 10.1
CONFORMED COPY
AMENDED AND RESTATED
AMENDMENT, RESTATEMENT, GENERAL PROVISIONS
AND INTERCREDITOR AGREEMENT
dated as of September 23, 2002
among
U.S. INDUSTRIES, INC.,
USI GLOBAL CORP.,
USI AMERICAN HOLDINGS, INC.,
USI ATLANTIC CORP.,
REXAIR HOLDINGS, INC., and
REXAIR, INC.,
as Obligors
the other subsidiaries of U.S. Industries, Inc.
parties hereto, as additional Loan Parties
WILMINGTON TRUST COMPANY and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
as Collateral Trustees
BANK OF AMERICA, N.A.,
as Debt Coordinator, USI Agent,
Rexair Agent, and Rexair Collateral Agent
and
THE LENDERS PARTY HERETO
T A B L E O F C O N T E N T S
Section Page
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Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms.........................................1
Section 1.02 Computation of Time Periods; Other Definitional Provisions...24
Section 1.03 Accounting Terms.............................................24
Article II
AMENDED AND RESTATED BANK FACILITIES AND COMMITMENTS
Section 2.01 Amendment and Restatement of the Bank Facilities, Generally..24
Section 2.02 Restated USI Commitments.....................................25
Section 2.03 Restated Rexair Commitments..................................26
Section 2.04 Restated Independent L/C Commitments.........................26
Section 2.05 Restated Guaranties..........................................26
Section 2.06 Restated Liens...............................................27
Article III
COMMON CREDIT PROVISIONS
Section 3.01 Use of Bank Facility Proceeds................................28
Section 3.02 Interest Rate; Commitment Fees, Etc..........................28
Section 3.03 Maturity Date................................................30
Section 3.04 Scheduled Bank Debt Amortization.............................30
Section 3.05 Mandatory Prepayments........................................32
Section 3.06 Optional Prepayments.........................................33
Section 3.07 Pro Rata Allocation of Permanent Reductions..................33
Section 3.08 Application of Pro Rata Allocations..........................34
Section 3.09 Increased Costs, Etc.........................................35
Section 3.10 Taxes........................................................37
Section 3.11 Payments and Computations....................................38
Article IV
CONDITIONS
Section 4.01 Conditions Precedent to Effectiveness........................39
Section 4.02 Conditions Precedent to Each Credit Extension................41
Section 4.03 Conditions Precedent to Maturity Extension...................42
Section 4.04 Use of Revolving Proceeds....................................42
Section 4.05 Determinations Under Section 4.01............................42
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Article V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties...............................42
Article VI
COVENANTS
Section 6.01 Affirmative Covenants........................................47
Section 6.02 Negative Covenants...........................................52
Section 6.03 Reporting Requirements.......................................60
Section 6.04 Financial Covenants..........................................64
Article VII
EVENTS OF DEFAULT
Section 7.01 Events of Default............................................66
Section 7.02 DIP Event....................................................69
Article VIII
GuarantIes, Collateral and ClAiMS
Section 8.01 Guaranties and Liens.........................................69
Section 8.02 Subrogation and Waiver.......................................69
Section 8.03 Release of Claims............................................70
Section 8.04 Additional Guarantees and Collateral.........................71
Section 8.05 Cash Collateral..............................................71
Section 8.06 Release of Lien in Connection with Asset Dispositions........71
Section 8.07 Release of Lien in Connection with Exchange Offer............72
Article IX
DEBT COORDINATOR AND STEERING COMMITTEE
Section 9.01 Appointments and Authorizations..............................72
Section 9.02 Delegation of Duties.........................................73
Section 9.03 Liability....................................................73
Section 9.04 Reliance.....................................................74
Section 9.05 Notice of Default............................................74
Section 9.06 Credit Decision..............................................74
Section 9.07 Indemnification..............................................75
Section 9.08 Debt Coordinator and Steering Committee Members, in their
Individual Capacities........................................76
Section 9.09 Successor Debt Coordinator or Steering Committee Member......76
Section 9.10 Arrangers, Syndication Agents and Others.....................76
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Article X
INTERCREDITOR ARRANGEMENTS
Section 10.01 Voting and Consents.........................................77
Section 10.02 Defaults; Standstill........................................79
Section 10.03 Other Actions...............................................80
Section 10.04 Sharing of Non-Ratable Proceeds.............................80
Article XI
MISCELLANEOUS
Section 11.01 Notices, Etc................................................80
Section 11.02 No Waiver; Remedies.........................................81
Section 11.03 Execution in Counterparts...................................81
Section 11.04 Binding Effect; Novation....................................81
Section 11.05 Jurisdiction; Process Agent; Judgment Currency; Etc.........81
Section 11.06 Governing Law...............................................82
Section 11.07 Conflict with Other Agreements..............................82
Section 11.08 Costs and Expenses..........................................82
Section 11.09 Register....................................................84
Section 11.10 Waiver of Jury Trial........................................84
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Schedules
---------
Schedule I........ - Lender Commitments
Schedule II....... - Outstanding Independent L/Cs
Schedule III...... - Rexair Amendment
Schedule IV....... - Principal Business Units
Schedule V........ - Collateral Trust Agreement Amendment
Schedule 4.01(1)(iii) - Foreign Collateral
Schedule 5.01(b).. - Subsidiaries
Schedule 5.01(n).. - Environmental Matters
Schedule 5.01(p).. - Liens
Schedule 5.01(q).. - Surviving Debt
Schedule 5.01(r).. - Real Property
Schedule 5.01(s).. - Leased Property
Schedule 5.01(t).. - Investments
Schedule 5.01(u).. - Intellectual Property
Schedule 6.02(p).. - Capital Expenditures Schedule
Schedule 6.04(a).. - Financial Covenant Adjustments
Exhibits
--------
Exhibit A......... - Form of Non-Shared Guaranty
Exhibit B......... - Form of Opinion of Counsel to the Loan Parties
Exhibit C......... - Form of Weekly Cash Flow Report
Exhibit D......... - Form of Pledge and Security Agreement Supplement
Exhibit E......... - Form of Assignment and Acceptance
AMENDED AND RESTATED AMENDMENT, RESTATEMENT, GENERAL PROVISIONS AND
INTERCREDITOR AGREEMENT (this "Agreement") dated as of September 23, 2002,
among U.S. Industries, Inc. ("USI"), USI Global Corp. ("USI Global"), USI
American Holdings, Inc. ("USIAH"), USI Atlantic Corp. ("USI Atlantic" and,
together with USI, USI Global and USIAH, the "USI Obligors"), REXAIR HOLDINGS,
INC., formerly known as Strategic Industries, Inc. ("Rexair Holdings"), REXAIR,
INC. ("Rexair" and, together with Rexair Holdings, the "Rexair Obligors" and
together with the USI Obligors, the "Obligors"), and the other USI Subsidiaries
party hereto (together with (i) the Obligors and (ii) any other Subsidiary of
USI from to time that has executed and delivered or is hereafter required under
Section 6.01(j) to execute and deliver a Non-Shared Guaranty or any Collateral
Document, the "Loan Parties"), WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as corporate trustee and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, not in his
individual capacity but solely as individual trustee under the USI Collateral
Documents as amended on the terms set forth below (together, the "Collateral
Trustees"), BANK OF AMERICA, N.A. ("BofA"), as collateral agent under the
Rexair Collateral Documents (in such capacity, the "Rexair Collateral Agent"),
as USI Agent and Rexair Agent under each of the Credit Agreements, and as debt
coordinator hereunder (in such capacity as debt coordinator, the "Debt
Coordinator"), and the various bank and other lender parties hereto.
RECITALS
WHEREAS, the parties hereto are parties to the Amendment, Restatement,
General Provisions and Intercreditor Agreement dated as of August 15, 2001 (the
"Prior Effective Date"), as modified by (i) the Waiver and Consent dated as of
December 21, 2001, (ii) the Waiver and Consent dated as of January 7, 2002,
(iii) Amendment No. 1 dated as of June 30, 2002 and (iv) the Waiver dated as of
September 5, 2002 (as so modified and as otherwise modified from time to time
prior to the date hereof, the "Existing Agreement"), each among the parties to
this Agreement and certain other bank and other lender parties from time to
time parties thereto.
WHEREAS, the parties hereto desire to restructure the Bank Facilities and
amend and restate the Existing Agreement to, among other things, (i) provide
for the extension of the term thereof to the Initial Maturity Date (as defined
below) upon the satisfaction of the conditions precedent set forth in Section
4.01 hereof, and further extend the term thereof to the Extended Maturity Date
(as defined below) upon the satisfaction of the conditions precedent set forth
in Section 4.03 hereof, (ii) reduce the Commitments thereunder and (iii)
provide for the conversion of a portion of existing USI Bank Exposure into a
term loan facility, each as more fully described herein.
NOW, THEREFORE, in consideration of the premises and for other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACH" means an automated clearing house transaction or service.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such
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Person. For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote 10% or
more of the Voting Interests of such Person or to direct or cause the direction
of the management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Agents" means, individually and collectively, the USI Agent, the Rexair
Agent and the Rexair Collateral Agent.
"Agreement" has the meaning specified in the Preamble.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Debt Coordinator equal to: (a) in
the case of a Hedge Agreement documented pursuant to the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and
Derivatives Association, Inc., the amount, if any, that would be payable by any
Loan Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on such
date of determination, (ii) such Loan Party or Subsidiary was the sole
"Affected Party", and (iii) the Debt Coordinator was the sole party determining
such payment amount (with the Debt Coordinator making such determination
pursuant to the provisions of the form of Master Agreement); (b) in the case of
a Hedge Agreement traded on an exchange, the ▇▇▇▇-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to the
Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement
determined by the Debt Coordinator based on the settlement price of such Hedge
Agreement on such date of determination; or (c) in all other cases, the
▇▇▇▇-to-market value of such Hedge Agreement, which will be the unrealized loss
on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party party
to such Hedge Agreement determined by the Debt Coordinator as the amount, if
any, by which (i) the present value of the future cash flows to be paid by such
Loan Party or Subsidiary exceeds (ii) the present value of the future cash
flows to be received by such Loan Party or Subsidiary pursuant to such Hedge
Agreement; capitalized terms used herein and not otherwise defined in this
Agreement shall have the respective meanings set forth in the Master Agreement
described above in subsection (a).
"Amendment Documents" means this Agreement, the Credit Documents and each
exhibit, supplement and other document delivered in connection herewith
amending, modifying or restating the Credit Documents.
"Asset Disposition" means a USI Asset Disposition or a Rexair Asset
Disposition.
"Asset Disposition Program" means the program of USI and its financial
advisors pursuant to which Principal Business Units will be offered for sale.
"Authorized Officer" means the Chairman of the Board, the Chief Financial
Officer, the General Counsel, any Vice President, the Secretary, the Treasurer
or the Controller of a Person or any other officer designated as an "Authorized
Officer" by the Board of Directors (or equivalent governing body) of such
Person.
"Available Amount" of any Letter of Credit means, at any time, the maximum
undrawn amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
"Bank Debt" means all Debt of the Loan Parties under the Bank Facilities.
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"Bank Exposure" means, with respect to any Bank at any time, any and all
then outstanding Obligations of any kind owed or owing by any and all of the
Obligors to such Bank under any or all of the Bank Facilities, including Loans,
Available Amounts, Unfunded Commitments, interest, fees, reimbursable amounts
and other amounts, direct or indirect contingent or otherwise.
"Bank Facility" means each credit facility under the Credit Agreements
(including the USI Term Facility) and each Independent L/C Commitment and the
credit facility provided by the applicable Independent L/C Issuer relating
thereto, each as amended and restated by the Existing Agreement and as amended,
modified and restated hereby.
"Bankruptcy Event" has the meaning as specified in Section 7.01.
"Banks" means the USI Banks, the Rexair Banks and the Independent L/C
Issuers.
"Base Rate" has the meaning specified in Section 3.02.
"Base Rate Credit" means any Loan or other credit extension that bears
interest or fees determined by reference to a Base Rate.
"BofA" has the meaning specified in the Preamble.
"Borrowing" means a term, revolving or a swingline borrowing under any of
the Bank Facilities.
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in any of New York City, Charlotte, North Carolina,
Wilmington, Delaware and, if the applicable Business Day relates to any LIBOR
Rate Credit on which dealings are carried on in the London interbank market,
London, England.
"Capital Expenditures" means, for any Person for any period, the sum of,
without duplication, (a) all expenditures made, directly or indirectly, by such
Person or any of its Subsidiaries during such period for equipment, fixed
assets, real property or improvements, or for replacements or substitutions
therefor or additions thereto, that have been or should be, in accordance with
GAAP, reflected as additions to property, plant or equipment on a Consolidated
balance sheet of such Person or have a useful life of more than one year plus
(b) the aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of equipment
that is purchased simultaneously with the trade-in of existing equipment or
with insurance proceeds shall be included in Capital Expenditures only to the
extent of the gross amount of such purchase price less (i) the credit granted
by the seller of such equipment for the equipment being traded in at such time
and (ii) the amount of such proceeds applied to such purchase price.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Carryback Claims" means tax refunds received by USI arising from
carryback claims for net operating losses or capital losses.
"Cash Collateral Account" has the meaning specified in Section 8.05.
4
"Cash Equivalents" means any of the following, to the extent owned by an
Obligor free and clear of all Liens other than Liens created under the
Collateral Documents and having a maturity of not greater than 90 days from the
date of acquisition or issuance thereof: (a) readily marketable direct
obligations of the government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the federal government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Bank or a member of the Federal Reserve System, issues (or the parent of which
issues) commercial paper rated as described in clause (c) below, is organized
under the laws of the United States or any State thereof and has combined
capital and surplus of at least $1 billion, (c) commercial paper in an
aggregate amount of no more than $10,000,000 per issuer outstanding at any
time, issued by any corporation organized under the laws of any State of the
United States and rated at least "Prime-1" (or the then equivalent grade) by
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") or "A-1" (or the then equivalent
grade) by Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
("S&P"), (d) time deposits or certificates of deposit maturing within one year
after the issuance thereof issued by commercial banks organized under the laws
of any country that is a member of the OECD and having a combined capital and
surplus in excess of $25,000,000 or that is a Bank or (e) Investments,
classified in accordance with GAAP as Current Assets of such obligor or any of
its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by financial
institutions that have the highest rating obtainable from either Moody's or
S&P, and the portfolios of which are limited solely to Investments of the
character, quality and maturity described in clauses (a), (b), (c) and (d) of
this definition.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
Liability Information System maintained by the U.S. Environmental Protection
Agency.
"Change of Control" means the occurrence of any of the following: (a) any
Person or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly,
of Voting Interests of USI (or other securities convertible into such Voting
Interests) representing 25% or more of the combined voting power of all Voting
Interests of USI; or (b) during any period of up to 24 consecutive months,
commencing after the date of this Agreement, individuals who at the beginning
of such 24-month period were directors of any of the Loan Parties shall cease
for any reason to constitute a majority of the board of directors of such Loan
Parties; or (c) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of
the power to exercise, directly or indirectly, a controlling influence over the
management or policies of USI or control over Voting Interests of USI (or other
securities convertible into such Voting Interests) representing 25% or more of
the combined voting power of all Voting Interests of USI; provided, however,
that this clause (c) shall not apply to any such acquisition the terms of which
expressly require, upon its consummation, the full repayment (and in the case
of Letters of Credit, collateralization) of all Bank Exposure; or (d) USI shall
cease to directly or indirectly own 100% of the Equity Interests in each other
Loan Party (other than in connection with a permitted Asset Disposition).
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all "Collateral" referred to in the Collateral
Documents (and any Bank Facility, as applicable) and all other property that is
or is purported to be subject to any Lien in
5
favor of the Collateral Trustees, including Shared Collateral and Rexair
Collateral for the benefit of any or all of the secured parties thereunder.
"Collateral Documents" means, as of the Effective Date, the Rexair
Collateral Documents and the USI Collateral Documents collectively, as in
effect immediately prior to the Effective Date and, thereafter, as amended and
restated hereby, and from time to time thereafter.
"Collateral Trust Agreement" means the Collateral Trust Agreement dated as
of April 30, 2001, among the Loan Parties, as grantors, and the Collateral
Trustees, as amended and restated as of August 15, 2001, as amended by the
Collateral Trust Agreement Amendment upon the effectiveness of Articles II and
III hereof and as otherwise amended, amended and restated, supplemented or
otherwise modified from time to time hereafter.
"Collateral Trust Agreement Amendment" has the meaning specified in
Section 2.06(a).
"Collateral Trustees" has the meaning specified in the Preamble.
"Commitment" means any outstanding commitment of any Bank under or in
respect of any Bank Facility.
"Commitment Conversion" has the meaning specified in Section
2.02(b).
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Contingent Obligation" means, with respect to any Person, any Obligation
or arrangement of such Person to guarantee or intended to guarantee any Debt,
leases, dividends or other payment Obligations ("Primary Obligations") of any
other Person (the "Primary Obligor") in any manner, whether directly or
indirectly, including, without limitation, (a) the direct or indirect
guarantee, endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the Obligation of a Primary Obligor, (b) the Obligation to
make take-or-pay or similar payments, if required, regardless of nonperformance
by any other party or parties to an agreement or (c) any Obligation of such
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 (A) for the purchase or payment of any such primary
obligation or (B) 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, assets, 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 holder of such primary obligation
against loss in respect thereof. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made (or,
if less, the maximum amount of such primary obligation for which such Person
may be liable pursuant to the terms of the instrument evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder), as determined by such Person in good faith.
"Control Agreement" means any agreement between a Permitted Account Bank
and either the Collateral Trustees, in the case of any deposit account,
securities entitlement or financial asset maintained by USI or any other Loan
Party (other than any Rexair Obligor), or the Rexair Collateral Agent, in the
case of any deposit account, securities entitlement or financial asset
maintained by any
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Rexair Obligor, in each case pursuant to which such Permitted Account Bank, (i)
acknowledges and accepts the assignment of such assets, or all rights related
to such assets, to the Collateral Trustees for the benefit of the Secured
Holders or to the Rexair Collateral Agent for the benefit of the Secured Rexair
Creditors, as applicable, in each case pursuant to the Collateral Documents,
and (ii) agrees to comply with instructions, directions and entitlement orders,
as the case may be, originated by the Collateral Trustees or the Rexair
Collateral Agent, or any authorized designee of either, as applicable, with
respect to the accounts, securities entitlements and financial assets without
further consent of USI or such other Loan Party. The Control Agreement must be
in form and substance satisfactory to the Collateral Trustees or the Rexair
Collateral Agent, as applicable, and the Debt Coordinator and must be
sufficient to satisfy the control requirements of Section 9-104 (in the case of
deposit accounts) and Section 9-106 (in the case of securities entitlements and
financial assets) of the New York UCC.
"Credit Agreements" means the USI Credit Agreement and the Rexair Credit
Agreement.
"Credit Documents" means, collectively, (a) the Credit Agreements, (b) the
credit documents relating to the Independent L/Cs, (c) the Guaranties, (d) the
Collateral Documents and (e) any and all agreements, instruments and other
documents delivered by any of the parties thereto pursuant to or in connection
with any of the Bank Facilities, as in effect immediately prior to the
Effective Date and, thereafter, as amended and restated hereby and from time to
time hereafter.
"Credit Extension" has the meaning specified in Section 4.02.
"Debt" of any Person means (a) all indebtedness of such Person for
borrowed money, (b) all Obligations of such Person for the deferred purchase
price of property or services (other than trade payables not overdue by more
than 90 days), (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all Obligations of such Person
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property) (other than
any such Obligations existing on the Effective Date), (e) all Obligations of
such Person as lessee under Capitalized Leases, (f) all Obligations of such
Person under bankers' acceptances, letters of credit or similar facilities, (g)
all Obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interests in such Person or
any other Person, valued, in the case of Redeemable Preferred Interests, at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends, (h) all Obligations of such Person in respect of Hedge
Agreements, valued at the Agreement Value thereof, (i) all Contingent
Obligations with respect to Debt of the type described in clauses (a) through
(h) above and Off-Balance Sheet Obligations of such Person and (j) all
indebtedness and other payment Obligations referred to in clauses (a) through
(i) above of another Person secured by (or for which the holder of such Debt
has an existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such indebtedness or other payment Obligations.
"Debt Coordinator" has the meaning specified in the Preamble.
"Debt Coordinator's Account" means an account of the Debt Coordinator
maintained by the Debt Coordinator at such location and having such account
number and reference information in respect of which shall have been specified
in writing to the Loan Parties and the Banks on or prior to the Effective Date,
or such other account as the Debt Coordinator may thereafter specify in writing
to the Loan Parties and the Banks.
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"Debt/EBITDA Ratio" means, at any date of determination, the ratio of (i)
Consolidated Debt for Borrowed Money of USI and its Subsidiaries (other than
the Rexair Obligors) as at such date to (ii) Consolidated EBITDA of USI and its
Subsidiaries (other than the Rexair Obligors) during the four consecutive
Fiscal Quarters most recently ended for which financial statements are required
to be delivered to the Lender Parties pursuant to Section 6.03(b) or (c), as
the case may be.
"Debt for Borrowed Money" of USI and its Subsidiaries means all items
that, in accordance with GAAP, would be classified as indebtedness on the
Consolidated balance sheet of USI (excluding any amounts on deposit in the
Notes Escrow Account).
"Debt Termination Date" means the date on which (i) all Loans or other
credit extensions and all outstanding reimbursement Obligations in respect of
Letters of Credit and bankers' acceptances under all Bank Facilities have been
paid in full, (ii) all commitments to provide any credit extension under any
Bank Facility and all Letter of Credit Commitments have been terminated, and
(iii) all Letters of Credit and bankers' acceptances under any Bank Facility
shall have either been cancelled or cash collateralized or covered by a back-up
Letter of Credit in a manner reasonably satisfactory to the issuing bank
thereof.
"Default" means any Event of Default or any event that would constitute an
Event of Default upon the giving of notice or lapse of time or both.
"Defaulted Advance" means, with respect to any Bank at any time, the
portion of any Loan required to be made by such Bank to an Obligor pursuant to
Article II at or prior to such time that has not been made by such Bank, by any
Agent or by the Debt Coordinator for the account of such Bank as of such time.
"Defaulted Amount" means, with respect to any Bank at any time, any amount
required to be paid by such Bank to any Agent or the Debt Coordinator hereunder
or under any other Transaction Document at or prior to such time that has not
been so paid as of such time, including, without limitation, any amount
required to be paid by such Bank to (a) the Debt Coordinator or any Agent
pursuant to Section 9.07 to reimburse such Debt Coordinator or Agent for the
amount of any advance made by such Debt Coordinator or Agent for the account of
such Bank or (b) any Steering Committee Related Person pursuant to Section 9.07
to reimburse such Steering Committee Related Person for such Bank's ratable
share of any amount required to be paid by such Bank to such Steering Committee
Related Person as provided therein.
"Defaulting Bank" means, at any time, any Bank that, at such time, (a)
owes a Defaulted Advance or a Defaulted Amount or (b) shall take any action or
be the subject of any action or proceeding of a type described in Section
7.01(f).
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary of USI other than a Foreign
Subsidiary.
"EBITDA" means, at any date of determination, determined on a Consolidated
basis, the sum of (a) net income (or net loss) and, without duplication and to
the extent deducted in determining net income (or loss), (b) interest expense,
(c) income tax expense, (d) depreciation expense, (e) amortization expense, (f)
restructuring charges (including management retention bonuses) and (g) all
other non-cash charges deducted in determining net income for such period and
other non-recurring charges, and adjusted for other income and expense items,
equity earnings in investees, interest income, and other non-cash gains
(excluding pension income gains), in the case of any Person, determined in
8
accordance with GAAP for the period for which EBITDA is determined, provided
that for purposes of Section 6.04(a), the determination of EBITDA shall exclude
the Rexair Obligors; and provided, further that, for any period or portion
thereof, through and including September 28, 2002, during which any operations
of USI and its Consolidated Subsidiaries have been classified as discontinued
operations for purposes of determining the net income (or loss) of USI and its
Consolidated Subsidiaries (any such period or portion thereof, a "Discontinued
Period" and any such discontinued operations, "Discontinued Operations"), the
amounts described in each of clauses (a) through (g) above shall include,
without duplication, any such amounts with respect to the Discontinued
Operations for such Discontinued Period.
"Effective Date" has the meaning specified in Section 4.01.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to health, safety
or the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any Federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, writ, judgment, injunction,
decree or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"Equipment" means all "Equipment" referred to in Section 1(a) of the
Pledge and Security Agreement.
"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such
shares (or such other interests), and other ownership or profit interests in
such Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
9
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of any Obligor, or under common control
with any Obligor, within the meaning of Section 414 of the Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC or (ii) the requirements of Section 4043(b) of ERISA apply with respect to
a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan,
and an event described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such Plan
within the following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of
any Obligor or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by any Obligor or any ERISA Affiliate from
a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any event or condition described in Section
4042 of ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
"Events of Default" has the meaning specified in Section 7.01.
"Excepted Assets" means (a) in the case of USI and its Subsidiaries (other
than the Rexair Obligors) the assets referred to in Section 6.02(e)(i) and (ii)
and (b) in the case of the Rexair Obligors, the assets referred to Section
9.02(ii) and (iii) of the Rexair Credit Agreement, as amended and restated by
the Rexair Amendment and set forth on Schedule III hereto. "Excess Cash Flow"
means, for each Fiscal Quarter commencing with the Fiscal Quarter ending
December 28, 2002 and cumulatively thereafter, an amount (if positive) equal to
the sum of:
(i) EBITDA less
(ii) cash restructuring charges (comprised solely of professional fees,
bank fees, severance payments and retention bonuses (other than
success fees deducted from the definition of Net Cash Proceeds)
related to the Transaction) less
(iii) income tax expense less
(iv) Capital Expenditures less
(v) interest expense and other expense plus
(vi) interest income and other income plus
(vii) the Retained Refund Amount, if any less
(viii) the Reserved Amount, to the extent that such amount is actually
applied to the payment at maturity of the Remaining Notes.
10
"Exchange Offer" means the offer by USI to the holders of the 2003 Notes
to exchange such holders' 2003 Notes for Extended Notes and each such holder's
ratable share of the amount of cash collateral in the Notes Escrow Account
allocable to the 2003 Notes.
"Existing Agreement" has the meaning specified in the Recitals to this
Agreement.
"Extended Maturity Date" means October 4, 2004.
"Extended Notes" means the notes issued in connection with the Exchange
Offer as partial consideration for the 2003 Notes of the exchanging Noteholders
on terms and conditions satisfactory to the Debt Coordinator, the proposed
terms and conditions of which shall have been disclosed to the Banks prior to
the Effective Date and which shall include, without limitation, each of the
following:
(i) the terms of the Exchange Offer shall not include the payment of any
fees or other cash compensation (other than (i) permitted payments
from the Notes Escrow Account or from operating cash flow and (ii) a
consent fee payable to each Noteholder participating in the Exchange
Offer in an aggregate amount not to exceed 0.50% of the face amount
of the 2003 Notes held by such Noteholder) to the holders of the
Extended Notes;
(ii) the Exchange Offer shall not result in any change in the respective
collateral positions of the Noteholders and the Banks that would be
adverse to the Banks;
(iii) the Extended Notes shall not include any additional material
covenants; and
(iv) the maturity of the Extended Notes shall be no earlier than December
31, 2004.
"Extraordinary Receipt" means any cash in an amount equal to or greater
than $50,000 received by or paid to or for the account of any Person not in the
ordinary course of business other than the proceeds of an Asset Disposition,
including, without limitation, tax refunds (to the extent not otherwise
accounted for as an adjustment to income tax expense), pension plan reversions,
proceeds of insurance (including, without limitation, any key man life
insurance but excluding proceeds of business interruption insurance to the
extent such proceeds constitute compensation for lost earnings), condemnation
awards (and payments in lieu thereof) and indemnity payments; provided,
however, that an Extraordinary Receipt shall not include cash receipts received
from proceeds of insurance, condemnation awards (or payments in lieu thereof)
or indemnity payments to the extent that such proceeds, awards or payments in
respect of loss or damage to equipment, fixed assets or real property (A) are
applied (or in respect of which expenditures were previously incurred) to
replace or repair the equipment, fixed assets or real property in respect of
which such proceeds were received in accordance with the terms of the Credit
Documents, so long as such application or expenditure is intended to be made
and is made within 6 months after the occurrence of such damage or loss or (B)
are received by any Person in respect of any third party claim against such
Person and applied to pay (or to reimburse such Person for its prior payment
of) such claim and the costs and expenses of such Person with respect thereto;
and provided further that Extraordinary Receipt shall not include cash receipts
received from insurance proceeds or recoveries from insurance carriers with
respect to personal injury claims and applied (or solely with respect to
payments received from insolvent carriers, to be applied) to pay (or to
reimburse such Person for the payment of) any such claims.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds
11
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for such day for such transactions received by
the applicable Agent from three Federal funds brokers of recognized standing
selected by it.
"Final Payment" has the meaning specified in Section 8.02(a).
"Financial Advisor" means FTI Consulting, financial advisor to the Debt
Coordinator, and any successor financial advisor that may be appointed from
time to time at the sole discretion of the Debt Coordinator.
"Fiscal Quarter" means a fiscal quarter of USI ending on or about March
31, June 30, September 30 and December 31 of each year.
"Fiscal Year" means a fiscal year of USI ending on or about September 30
in any calendar year.
"Foreign Collateral" has the meaning specified in the Collateral Trust
Agreement.
"Foreign Collateral Document" has the meaning specified in the Collateral
Trust Agreement.
"Foreign Loan Party" means any Subsidiary of USI organized under the laws
of a jurisdiction other than the United States or any State thereof or the
District of Columbia that has executed or is hereafter required to execute and
deliver, pursuant to Section 6.01(j) or otherwise, any Foreign Collateral
Document.
"Foreign Subsidiary" means any Subsidiary of USI (other than any Foreign
Loan Party, except that this exclusion shall not apply to Section 6.02(a)(vii))
organized under the laws of a jurisdiction other than the United States or any
State thereof or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.03, are to be
used in making the calculations for purposes of determining compliance with
this Agreement.
"Governmental Authority" means any nation or government, any state,
province, city, municipal entity or other political subdivision thereof, and
any governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality, commission, board,
bureau or similar body, whether ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, local
or foreign.
"Governmental Authorization" means any authorization, approval, consent,
franchise, license, covenant, order, ruling, permit, certification, exemption,
notice, declaration or similar right, undertaking or other action of, to or by,
or any filing, qualification or registration with, any Governmental Authority.
"Guaranties" means collectively, the USI Bank Debt Guaranties, Rexair Bank
Debt Guaranties and the Non-Shared Guaranties.
"Guarantors" means collectively, the guarantor parties to the Guaranties.
12
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other hedging agreements.
"Hedge Bank" means any Bank or an Affiliate of a Bank in its capacity as a
party to a Secured Hedge Agreement.
"Immaterial Subsidiary" has the meaning specified in Section 6.01(j).
"Independent L/C" means (i) each of the presently outstanding letters of
credit listed on Schedule II hereto issued for the account of USI by one or
more issuing USI Banks, but not issued under or subject to any of the Credit
Agreements, together with any extensions thereof, (ii) each other such Letter
of Credit issued in accordance with Section 2.04 hereof by an issuing USI Bank
described in (i) above from time to time, other than any replacements or other
Letters of Credit which may be issued under the USI Credit Agreement and (iii)
any letter of credit that extends, rolls-over or replaces an Independent L/C on
substantially similar terms following the occurrence of a DIP Event.
"Independent L/C Cash Collateral Account" means the cash collateral
account designated as the "Independent L/C Cash Collateral Account" for the
Letter of Credit Collateralization of Independent L/Cs maintained with the Debt
Coordinator and under the control of the Collateral Trustees pursuant to the
Pledge and Security Agreement.
"Independent L/C Commitment" means the commitment of each Independent L/C
Issuer set forth opposite its name on Schedule I, as reduced on the Effective
Date and as otherwise reduced hereunder from time to time.
"Independent L/C Exposure" means, with respect to any Independent L/C
Issuer at any time, any and all then outstanding Obligations of any kind owed
or owing by any and all of the USI Obligors to such Independent L/C Issuer
under the Credit Documents relating to Independent L/Cs issued by such
Independent L/C Issuer.
"Independent L/C Issuer" means any USI Bank that has issued a presently
outstanding Independent L/C.
"Initial Maturity Date" means October 1, 2003.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Coverage Ratio" means, as determined on the last day of any
Fiscal Quarter, the ratio of (a) Consolidated EBITDA of USI and its
Subsidiaries (other than the Rexair Obligors) to (b) interest paid or payable
on all Debt for Borrowed Money, in each case, of or by USI and its Subsidiaries
on a Consolidated basis (other than the Rexair Obligors) during the four
consecutive Fiscal Quarters most recently ended for which financial statements
are required to be delivered to the Lender Parties pursuant to Section 6.03(b)
or (c), as the case may be.
13
"Interest Period" has, with respect to any Bank Facility, the meaning
ascribed thereto in the applicable Credit Document.
"Inventory" means all Inventory as defined in Section 1(b) of the Pledge
and Security Agreement.
"Investment" in any Person means any Loan or advance to such Person, any
purchase or other acquisition of any Equity Interests or Debt or the assets
comprising a division or business unit or a substantial part or all of the
business of such Person, any capital contribution to such Person or any other
direct or indirect investment in such Person, including, without limitation,
any acquisition by way of a merger or consolidation and any arrangement
pursuant to which the investor incurs Debt of the types referred to in clause
(i) or (j) of the definition of "Debt" in respect of such Person.
"Issuing Bank" means, with respect to any Bank Facility, the meaning
ascribed thereto in the applicable Credit Agreement, or any Independent L/C
Issuer.
"JUSI" means JUSI Holdings, Inc., a Wholly Owned Subsidiary of USI.
"L/C Cash Collateral Account" means the cash collateral account designated
as the "L/C Cash Collateral Account" maintained for the Letter of Credit
Collateralization of Letters of Credit issued under the USI Credit Agreement
maintained with the Debt Coordinator and under the control of the Collateral
Trustees pursuant to the Pledge and Security Agreement.
"Letter of Credit" means (i) any Independent L/C and (ii) any Letter of
Credit as defined in and issued pursuant to a Credit Agreement.
"Letter of Credit Collateralization" means, in respect of any Permanent
Reduction or portion thereof allocable to the Available Amount of any Letter of
Credit, the delivery of cash or Permitted Cash Equivalents in the amount of
such allocation to the Debt Coordinator, to be held in a segregated Cash
Collateral Account as collateral security for the Bank Exposure associated with
such Letter of Credit.
"Letter of Credit Commitment" means, (i) with respect to a USI Issuing
Bank at any time, the amount set forth opposite its name on Schedule I hereto
under the caption "USI Letter of Credit Commitment", (ii) with respect to any
Rexair Bank, the amount set forth opposite its name on Schedule I under the
caption "Rexair Letter of Credit Commitment", and (iii) with respect to any
Independent L/C Issuer at any time, its Independent L/C Commitment.
"LIBOR" or "LIBOR Rate" has the meaning described in Section 3.02.
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Liquidity" means, with respect to Loan Parties other than Rexair
Obligors, the sum of unused commitments under the Bank Facilities, plus cash
and Cash Equivalents on hand in domestic banks, including in any Cash
Collateral Account collateralizing Unfunded Commitment Reductions, plus
interest and earnings on all deposit accounts (including all Cash Collateral
Accounts).
14
"Loan" has, with respect to each Bank Facility, the meaning specified
therefor in the applicable Credit Agreement, and includes each term loan
allocable to the USI Term Commitment.
"Loan Parties" has the meaning specified in the Preamble; provided,
however, that solely for purposes of Section 6.02, unless and until a Rexair
Event Occurs, the term "Loan Parties" shall not include Rexair Holdings or any
of its Subsidiaries.
"Majority Banks" has the meaning specified in Section 10.01(a).
"Margin Stock" has the meaning specified in Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of USI and its Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of USI and its Subsidiaries, taken as a whole, (b) the
rights and remedies of the Debt Coordinator, any of the Agents, the Collateral
Trustees or any Bank under any Transaction Document or (c) the ability of the
Obligors, taken as a whole, to perform their Obligations under any Transaction
Document to which it is or is to be a party.
"Material Subsidiary" means, at any time, a Subsidiary of USI having
assets in an amount equal to at least 5% of the amount of total Consolidated
assets of USI and its Subsidiaries (determined as of the last day of the most
recent Fiscal Quarter) or revenues or net income in an amount equal to at least
5% of the amount of total Consolidated revenues or net income of USI and its
Subsidiaries for the 12-month period ending on the last day of the most recent
Fiscal Quarter.
"Maturity Date" means either (a) the Initial Maturity Date or (b) upon and
following the occurrence of the Maturity Extension, the Extended Maturity Date.
"Maturity Extension" has the meaning specified in Section 4.03.
"Mortgages" means each of the mortgages and deeds of trust granted by the
Loan Parties to the Collateral Trustees for the benefit of the holders of
Senior Debt Exposure, as their interests may appear.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Obligor or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Obligor or any ERISA Affiliate and at least one Person other than the Obligor
and the ERISA Affiliates or (b) was so maintained and in respect of which any
Obligor or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset or the incurrence or issuance of any Debt or the
sale or issuance of any Equity
15
Interests (including, without limitation, any capital contribution) by any
Person, or any Extraordinary Receipt received by or paid to or for the account
of any Person, the aggregate amount of cash received from time to time (whether
as initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a) customary
brokerage commissions, underwriting fees and discounts, legal fees, fees paid
to accountants and financial advisors, finder's fees and other similar fees and
commissions, (b) the amount of taxes payable in connection with or as a result
of such transaction, (c) the amount of any Debt secured by a Lien on such asset
that, by the terms of the agreement or instrument governing such Debt, is
required to be repaid upon such disposition, in each case to the extent, but
only to the extent, that the amounts so deducted are, at the time of receipt of
such cash, actually paid to a Person that is not an Affiliate of such Person or
any Obligor or any Affiliate of any Obligor and are properly attributable to
such transaction or to the asset that is the subject thereof and (d) reasonable
success fees paid to operating management of the entity or entities subject to
an Asset Disposition in connection with such Asset Disposition; provided,
however, that in the case of taxes that are deductible under clause (b) above
but for the fact that, at the time of receipt of such cash, such taxes have not
been actually paid or are not then payable, such Obligor or such Affiliate may
deduct an amount (the "Reserved Tax Amount") equal to the amount reserved in
accordance with GAAP for such Obligor's or such Affiliate's reasonable estimate
of such taxes, other than taxes for which such Obligor or such Affiliate is
indemnified, provided further, however, that, at the time such taxes are paid,
an amount equal to the amount, if any, by which the Reserved Tax Amount for
such taxes exceeds the amount of such taxes actually paid shall constitute "Net
Cash Proceeds" of the type for which such taxes were reserved for all purposes
hereunder.
"Non-Shared Collateral" means any Collateral that is not Shared
Collateral, provided that, so long as any Rexair Bank Exposure remains
outstanding or any commitments in respect thereof shall not have been
terminated, the Non-Shared Collateral shall not include any Rexair Collateral.
"Non-Shared Collateral Loan Party" means any Subsidiary of USI that is
within clause (ii) or, to the extent provided pursuant to Section 6.01(j)(i),
clause (i) of the definition of "Unrestricted Subsidiary" under the Notes.
"Non-Shared Guaranty" means a guaranty in substantially the form of
Exhibit A hereto or in form and substance otherwise satisfactory to the Debt
Coordinator from a Non-Shared Collateral Loan Party guaranteeing the
Obligations of each other Loan Party under and in respect of the Bank
Facilities.
"Non-Shared Lien" means, collectively, the Liens and collateral created
under the USI Collateral Documents solely for the benefit of the holders of
Bank Debt.
"Note Document" means the Notes, the Notes Indentures and any and all
agreements, instruments and other documents delivered by any of the parties
thereto pursuant to or in connection with any of the Notes or Notes Indentures.
"Noteholder" means any Person that is the current beneficial holder of a
Note.
"Notes" means (i) the 7-1/4% Senior Notes due December 1, 2006, in the
original principal amount of $125,000,000, (ii) the 7-1/8% Senior Notes due
October 15, 2003 (the "2003 Notes"), in the original principal amount of
$250,000,000, issued pursuant to the Notes Indentures and (iii) the Extended
Notes.
"Notes Escrow Account" has the meaning specified in Section 3.08(a).
16
"Notes Escrow Delivery" means the delivery to the Collateral Trustees of
cash allocable to the outstanding principal amount of a series of the Notes.
"Notes Exposure" means, with respect to all Notes at any time, the
aggregate outstanding Obligations of the USI Obligors under the Notes.
"Notes Indentures" means the (i) the Indenture dated as of December 12,
1996, as amended, among USI, USIAH and USI Global, as issuers, USI Atlantic as
parent guarantor and PNC Bank, National Association as trustee, with respect to
the 7-1/4% Senior Notes due December 1, 2006, and (ii) the Indenture dated as
of October 27, 1998, as amended, among USI, USI Global and USIAH, as issuers,
USI Atlantic as guarantor and Bank One Trust Company, N.A. as trustee, with
respect to the 7-1/8% Senior Notes due October 15, 2003 and the Extended Notes,
as either such indenture may be amended, amended and restated, supplemented or
otherwise modified from time to time.
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any obligation of such
Person of any kind, including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to payment in respect of
such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured, and
whether or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 7.01(f). Without limiting the generality of
the foregoing, the Obligations of the Obligors under the Credit Documents and
Bank Facilities include (a) the obligation to pay principal, interest, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable by any Loan Party under any Credit Document or Bank Facility
and (b) the obligation to reimburse any amount in respect of any of the
foregoing that any of the Banks, Agents or the Debt Coordinator in its sole
discretion, may elect to pay or advance on behalf of such Obligor.
"Obligors" has the meaning specified in the Preamble.
"Off-Balance Sheet Obligation" means, with respect to any Person, any
Obligation of such Person under a synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing if the
transaction giving rise to such Obligation is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease in
accordance with GAAP.
"Other Taxes" has the meaning specified in Section 3.10(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permanent Reduction" means any or all of the following: (i) the permanent
repayment or prepayment of outstanding Loan principal, Letter of Credit
reimbursement obligations or bankers acceptances under any Credit Document (and
the concurrent termination or reduction of any related commitments), (ii) a
Letter of Credit Collateralization and (iii) in the case of a Permanent
Reduction consisting of an application of Net Cash Proceeds of Senior Debt
Collateral, (A) a Notes Escrow Delivery and (B) an Unfunded Commitment
Reduction.
"Permitted Account Bank" has the meaning specified in Section 6.01(n).
"Permitted Cash Equivalents" means Obligations described in clauses (a)
and (b) of the definition of Cash Equivalents.
17
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been
commenced: (a) Liens for taxes, assessments and governmental charges or levies
to the extent not required to be paid under Section 6.01(b); (b) Liens imposed
by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's
Liens and other similar Liens arising in the ordinary course of business that
(i) are not overdue for a period of more than 60 days and (ii) individually or
together with all other Permitted Liens incurred in reliance upon this clause
(b) outstanding on any date of determination do not materially adversely affect
the use or value of the property to which they relate; and (c) pledges or
deposits to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge and Security Agreement" means the Pledge and Security Agreement
dated as of April 30, 2001, by the Loan Parties, as grantors, in favor of the
Collateral Trustees, as amended and restated as of August 15, 2001 and as
otherwise amended, amended and restated, supplemented or otherwise modified
from time to time hereafter.
"Pledge and Security Agreement Supplement" means a Pledge and Security
Agreement Supplement in substantially the form of Exhibit D.
"Pledged Debt" has the meaning specified in Section 1(d)(iv) of the Pledge
and Security Agreement.
"Pledged Shares" has the meaning specified in Section 1(d)(iii) of the
Pledge and Security Agreement.
"Preferred Interests" means, with respect to any Person, Equity Interests
issued by such Person that are entitled to a preference or priority over any
other Equity Interests issued by such Person upon any distribution of such
Person's property and assets, whether by dividend or upon liquidation.
"Principal Business Unit" means each of the divisions of USI set forth in
Schedule IV hereto.
"Prior Effective Date" has the meaning specified in the Recitals to this
Agreement.
"Pro Rata" means, at any time, (i) when applied to all Senior Debt, in
accordance with the Pro Rata Share of each Bank and Noteholder of the Total
Principal Exposure under all Bank Facilities and the Notes taken as a whole,
and (ii) when applied to all or some of the Bank Debt, in accordance with each
Bank's Pro Rata Share of Total Principal Exposure under all the included Bank
Facilities.
"Pro Rata Share" means at any time of determination (subject to the
proviso set forth in Section 3.07),
(a) when applied to all holders of Senior Debt Exposure, for each Bank or
Noteholder, the percentage share equal to a fraction, the numerator
of which is
18
the Total Principal Exposure of such Bank or Noteholder under all
Senior Debt and the denominator of which is the Total Principal
Exposure of all Banks and Noteholders under all Senior Debt;
(b) when applied to all Banks, for each Bank, the percentage share equal
to a fraction, the numerator of which is equal to the Total Principal
Exposure of such Bank under all Bank Facilities and the denominator
of which is the Total Principal Exposure of all Banks under all Bank
Facilities; and
(c) when applied to all Rexair Banks, for each Rexair Bank, the
percentage share equal to a fraction, the numerator of which is equal
to the Total Principal Exposure of such Rexair Bank under the Rexair
Credit Agreement and the denominator of which is the Total Principal
Exposure of all Rexair Banks under the Rexair Credit Agreement.
"Receivables" means Receivables as defined in Section 1(c) of the Pledge
and Security Agreement.
"Redeemable" means, with respect to any Equity Interest, any Debt or any
other right or Obligation, any such Equity Interest, Debt, right or Obligation
that (a) the issuer has undertaken to redeem at a fixed or determinable date or
dates, whether by operation of a sinking fund or otherwise, or upon the
occurrence of a condition not solely within the control of the issuer or (b) is
redeemable at the option of the holder.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Remaining Notes" means any 2003 Notes that are not exchanged pursuant to
the Exchange Offer.
"Reserved Amount" means an amount equal to the difference between (i) the
principal amount of the Remaining Notes following the consummation of the
Exchange Offer and (ii) the ratable share of cash collateral on deposit in the
Notes Escrow Account allocable to the holders of the Remaining Notes (which
amount shall in no event exceed $14,000,000).
"Reserved Net Cash Proceeds" has the meaning specified in Section
3.05(d)(ii).
"Retained Refund Amount" has the meaning specified in Section 3.05(d)(i).
"Rexair" has the meaning specified in the Preamble.
"Rexair Agent" means BofA in its capacity as administrative agent under
the Rexair Credit Agreement.
"Rexair Amendment" has the meaning specified in Section 2.03(b).
"Rexair Asset Disposition" has the meaning specified in Section 9.02(v) of
the Rexair Credit Agreement, as amended and restated by the Rexair Amendment as
set forth on Schedule III hereto.
19
"Rexair Asset Disposition Proceeds" means the net proceeds of any Rexair
Asset Disposition.
"Rexair Bank" means, as of any date, each lender party to the Rexair
Credit Agreement as at such date.
"Rexair Bank Debt Guaranty" has the meaning specified in Section 2.05(b).
"Rexair Bank Exposure" means, with respect to any Rexair Bank at any time,
its Bank Exposure under the Rexair Bank Facilities at such time.
"Rexair Bank Facilities" means the Loan and Letter of Credit facilities
under the Rexair Credit Agreement.
"Rexair Bank Majority" has the meaning specified in Section 10.01(c)(ii).
"Rexair Collateral" means all Collateral consisting of assets of the
Rexair Obligors subject to the Rexair Debt Lien.
"Rexair Collateral Agent" has the meaning specified in the Preamble.
"Rexair Collateral Disposition" means any Asset Disposition of assets of
Rexair Obligors subject to the Rexair Debt Lien.
"Rexair Collateral Documents" means the Rexair Pledge Agreement, the
Rexair Security Agreement and all other agreements, documents and instruments
creating, evidencing or perfecting the liens in connection therewith, each as
in effect as of the date hereof and as amended, amended and restated,
supplemented or otherwise modified from time to time hereafter, each for the
benefit of the Secured Rexair Creditors.
"Rexair Collateral Proceeds" means the Net Cash Proceeds of any Rexair
Collateral Disposition.
"Rexair Commitment" has the meaning specified in Section 2.03.
"Rexair Credit Agreement" means the Credit Agreement dated as of March 24,
2000 among Rexair Holdings, Rexair, Banc of America Securities LLC, as joint
lead arranger and joint book manager, BofA, as a lender, as issuing bank, as
swingline bank and as Rexair Agent, the other lenders party thereto and DLJ
Capital Funding, Inc., as joint lead arranger, joint book manager and
syndication agent thereunder, as amended and restated by the Existing
Agreement, by this Agreement and as otherwise amended, amended and restated,
supplemented or otherwise modified from time to time hereafter.
"Rexair Debt" means Debt under the Rexair Bank Facilities.
"Rexair Debt Lien" means, collectively, the liens and collateral
arrangements created pursuant to and existing under the Rexair Collateral
Documents in favor of the Rexair Collateral Agent for the benefit of the
Secured Rexair Creditors.
"Rexair Event" means the permanent reduction of all Rexair Debt Exposure
to zero or any earlier consummation of an Asset Disposition described in the
proviso to Section 3.07.
20
"Rexair Holdings" has the meaning ascribed thereto in the Preamble.
"Rexair Holdings Guaranty" means, prior to the Effective Date, the
guaranty by Rexair Holdings as set forth in Section 14 of the Rexair Credit
Agreement as in effect immediately prior to the Effective Date and thereafter,
as amended and restated hereby and from time to time hereafter.
"Rexair Issuing Bank" means an issuer of a Letter of Credit under the
Rexair Credit Agreement.
"Rexair Obligors" has the meaning specified in the Preamble.
"Rexair Pledge Agreement" means the Pledge Agreement dated as of March 24,
2000, made by the Rexair Obligors, as pledgors, in favor of the Rexair
Collateral Agent, as in effect as of the date hereof and as otherwise amended,
amended and restated, supplemented or otherwise modified from time to time
hereafter.
"Rexair Proceeds" has the meaning specified in Section 10.04.
"Rexair Security Agreement" means the Security Agreement dated as of March
24, 2000, among the Rexair Obligors, as assignors, in favor of the Rexair
Collateral Agent, as in effect as of the date hereof and as otherwise amended,
amended and restated, supplemented or otherwise modified from time to time
hereafter.
"Scheduled Amortization Date" has the meaning specified in Section
3.04(a).
"Secured Hedge Agreement" means any Hedge Agreement required or permitted
under the USI Credit Agreement or the Rexair Credit Agreement that is entered
into by and between an Obligor and any Hedge Bank.
"Secured Holders" has the meaning specified in the Collateral Trust
Agreement.
"Secured Rexair Creditors" means the Rexair Banks and the other secured
creditors named in the USI Guaranty.
"Senior Debt" means (a) all Obligations of the Obligors under the Bank
Facilities and (b) all Obligations of the Obligors under the Notes.
"Senior Debt Collateral" means, at any time, any and all assets of the
Obligors subject to the Lien securing the Senior Debt.
"Senior Debt Collateral Documents" means the Pledge and Security
Agreement, the Collateral Trust Agreement and each other collateral document,
instrument and agreement that evidences, creates or purports to create a Lien
in favor of the Collateral Trustees for the benefit of all holders of Senior
Debt Exposure as in effect immediately prior to the Effective Date and,
thereafter, as amended and restated hereby and from time to time hereafter.
"Senior Debt Exposure" means all Bank Exposure and Notes Exposure.
"Senior Debt Lien" means, collectively, the Shared Collateral Lien and the
Non-Shared Lien.
21
"Shared Collateral" means any Collateral that is subject to the Shared
Collateral Lien, provided that, until all Rexair Bank Exposure is permanently
paid in full and all commitments thereunder terminated, the term "Shared
Collateral" shall not include any Rexair Collateral.
"Shared Collateral Documents" means those Collateral Documents evidencing
or relating to any Shared Collateral.
"Shared Collateral Lien" means, collectively, the Liens and collateral
arrangements created pursuant to and existing under the USI Collateral
Documents for the benefit of the holders of Senior Debt Exposure.
"Shared Collateral Loan Party" means any Loan Party that is not a
Non-Shared Collateral Loan Party.
"Shared Collateral Proceeds" means the Net Cash Proceeds of an Asset
Disposition of any Shared Collateral.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Obligor or
any ERISA Affiliate and no Person other than the Obligor and the ERISA
Affiliates or (b) was so maintained and in respect of which any Obligor or any
ERISA Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.
"Steering Committee" has the meaning specified in 9.01(a).
"Steering Committee Majority" has the meaning specified in Section
9.01(a).
"Steering Committee Members" has the meaning specified in Section 9.01(a).
"Steering Committee Related Person" has the meaning specified in Section
9.03.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of
such partnership, joint venture or limited liability company or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided, however, that solely for purposes of Section 6.02,
unless and until a Rexair Event shall have occurred, the term "Subsidiary"
shall not include Rexair Holdings or any of its Subsidiaries.
"Surviving Debt" means Debt of each Obligor and its Subsidiaries
outstanding immediately before and after giving effect to the Transactions
(other than Debt under the Credit Documents).
"Taxes" has the meaning specified in Section 3.10(a).
"Term Bank" means any Lender that has a USI Term Commitment.
22
"Total Principal Exposure" means, with respect to any Person or Persons at
any time, the sum, without duplication, of (i) the aggregate outstanding
principal amount of all Loans or Notes held by, and all unreimbursed amounts in
respect of drawings under Letters of Credit and unpaid amounts under bankers'
acceptances owed to, such Person or Persons, as adjusted from time to time and,
in the case of any Noteholder, less the principal amount of any deposit in
respect of such Notes maintained in the Notes Escrow Account pursuant to
Section 3.08, (ii) the aggregate Available Amount of all outstanding Letters of
Credit issued by such Person or Persons, less the principal amount of any
Letter of Credit Collateralization in respect thereof and (iii) the aggregate
principal amount of Unfunded Commitments of such Person or Persons, as reduced
from time to time by Unfunded Commitment Reductions pursuant to Section 3.08;
in each case, under any or all, as applicable, of the Credit Agreements, the
Independent L/Cs (or Independent L/C Commitments) and the Notes.
"Transaction Documents" means each Amendment Document, each Credit
Document, and all agreements, instruments and other documents, including all
exhibits, supplements and other documentation, delivered in connection herewith
or therewith, in each case as such Transaction Document may be amended,
supplemented, or otherwise modified from time to time.
"Transactions" means the entirety of the transactions effected pursuant to
and in connection with the Existing Agreement, this Agreement and the other
Transaction Documents.
"Trigger Event" has the meaning specified in Section 6.01(j).
"2003 Notes" has the meaning specified in the definition of "Notes".
"Unfunded Commitment Reduction" means the Permanent Reduction of Unfunded
Commitments of any Banks under any Credit Document and, if required, the
concurrent delivery of a like amount to the Collateral Trustees to be held as
Collateral and applied pursuant to Section 3.04(b).
"Unfunded Commitments" means, at any time, for any Bank or Banks, the
aggregate principal or face amount of any and all unfunded commitments of such
Bank or Banks under any or all Bank Facilities.
"USI" has the meaning specified in the Preamble.
"USI Agent" means BofA in its capacity as agent under the USI
Credit Agreement.
"USI Asset Disposition" has the meaning specified in Section
6.02(e)(iv).
"USI Bank" means, as of any date, each lender party to the USI Credit
Agreement as at such date.
"USI Bank Debt Guaranty" has the meaning specified in Section 2.05.
"USI Bank Exposure" means, with respect to any USI Bank at any time, its
Bank Exposure under the USI Credit Agreement.
"USI Bank Facilities" means the Loan and Letter of Credit facilities under
the USI Credit Agreement.
"USI Collateral Account" means an account of Wilmington Trust Company
maintained by Wilmington Trust Company at its offices located at ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.,
▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Department,
subject to the Senior Debt Lien and in accordance with the provisions of the
Collateral Trust Agreement, the account number and reference information in
respect of which shall have been delivered to the Debt Coordinator and to each
Bank on or prior to the Effective Date.
"USI Collateral Documents" means the Collateral Trust Agreement, the
Pledge and Security Agreement and all other agreements, documents and
instruments creating, evidencing or perfecting the liens of the Collateral
Trustees in connection therewith, each as in effect as of the date hereof and
as amended, amended and restated, supplemented or otherwise modified from time
to time hereafter, each for the benefit of the Banks and/or the Noteholders as
their respective interests appear.
"USI Commitment" has the meaning specified in Section 2.02(a).
"USI Credit Agreement" means the Credit Agreement dated December 12, 1996
among USI, USI Global, USIAH and USI Atlantic, as Loan Parties and/or as
guarantor parties, BofA, as USI Agent, as a bank, as issuing bank and as
swingline bank, Banc of America Securities LLC, as arranger thereunder, and the
other banks party thereto, as amended and restated by the Existing Agreement.
"USI Debt Collateral" means Senior Debt Collateral other than the Rexair
Debt Collateral.
"USI Global" has the meaning specified in the Preamble.
"USI Global Contribution" means a capital contribution made to USI Mayfair
Limited ("USI Mayfair") by USI Global to effect the reduction of the
intercompany loan balance owed to USI Global by USI Mayfair by an amount not to
exceed the amount required for and in connection with compliance with the
requirements of the Inland Revenue taxing authority in the United Kingdom;
provided that such capital contribution shall not result in a net cash
contribution to USI Mayfair or any of its Subsidiaries.
"USI Guarantors" means USI and USI Global, in their respective capacities
as guarantors under the USI Guaranty.
"USI Guaranty" means the Guaranty dated as of March 24, 2000 made by USI
and USI Global for the benefit of the Secured Rexair Creditors, as amended and
restated by the Existing Agreement, by this Agreement and as otherwise amended,
amended and restated, supplemented or otherwise modified from time to time
hereafter.
"USI Issuing Bank" means an issuer of a Letter of Credit under the USI
Credit Agreement.
"USI Obligors" has the meaning specified in the Preamble.
"USI Revolving Credit Commitment" of any USI Bank has the meaning
specified in Schedule I.
"USI Term Commitment" has the meaning specified in Section 2.02(b).
"USI Term Exposure" has the meaning specified in Section 2.02(b).
24
"USI Term Facility" means the aggregate amount of the Term Banks' USI Term
Commitments at any time.
"USIAH" has the meaning specified in the Preamble.
"Voting Interests" means shares of capital stock issued by a corporation,
or equivalent Equity Interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of ERISA,
that is maintained for employees of any Obligor or in respect of which any
Obligor could have liability.
"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person, all the outstanding shares of capital stock or other
Equity Interests of which (other than directors or similar qualifying shares
issued in compliance with requirements of local law) are at the time owned
directly or indirectly by such Person.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E
of Title IV of ERISA.
Section 1.02 Computation of Time Periods; Other Definitional Provisions.
In this Agreement and the other Amendment Documents in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". References in the Amendment Documents to any agreement or
contract "as amended" shall mean and be a reference to such agreement or
contract as amended, amended and restated, supplemented or otherwise modified
from time to time in accordance with its terms.
Section 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 5.01(g).
ARTICLE II
AMENDED AND RESTATED BANK FACILITIES AND COMMITMENTS
Section 2.01 Amendment and Restatement of the Bank Facilities, Generally.
(a) On and as of the Effective Date, upon satisfaction (or waiver) of the
conditions specified in Section 4.01 hereof, the Existing Agreement and each of
the Bank Facilities (other than Independent L/Cs subject to Section 2.04) and
each of the Credit Documents (including Credit Documents relating to
Independent L/Cs) is hereby amended and modified as provided in this Agreement
and thereupon is and shall be deemed to be restated in its entirety as in
effect immediately prior to the effectiveness of this Agreement and as amended
and modified hereby, with the affirmative, negative and financial covenants and
undertakings corresponding to affirmative, negative and financial covenants
(including those covenants and undertakings in respect of the providing of
guarantees or the pledge or release of collateral), reporting requirements,
mandatory prepayment requirements, collateral release provisions, increased
cost provisions, tax gross-up provisions, allocation of prepayment provisions,
LIBOR provisions related to market disruption and illegality events,
representations and warranties, and event of default provisions of each Credit
Document being restructured, replaced and superseded by the corresponding terms
and provisions of this Agreement and the other Amendment Documents and, as so
amended and
25
restated, each of the Existing Agreement and each Bank Facility and Credit
Document is hereby ratified and reaffirmed by each party hereto that is a party
thereto; provided, however, that the negative covenants in Section 9 of the
Rexair Credit Agreement, as amended and restated by the Rexair Amendment, as
further amended hereby, shall remain in effect.
(b) Each party hereto hereby acknowledges and consents to the amendment
and restatement of the Existing Agreement and to the amendment of the
Collateral Trust Agreement and the terms and provisions thereof on the terms
set forth in this Agreement and the Collateral Trust Agreement Amendment,
respectively. Each party hereto hereby reaffirms the covenants and agreements
contained in each Transaction Document and certifies that, as of the date
hereof (both before and after giving effect to the effectiveness of this
Agreement), the representations and warranties contained therein are true and
correct with the same effect as if made on the date hereof, except to the
extent such representations or warranties expressly relate to a date prior to
the date hereof (in which case such representations and warranties were true
and correct as of such earlier date). Each party hereto further confirms that
each Transaction Document is and shall continue to be in full force and effect
and the same are hereby ratified and confirmed in all respects, except that
upon the effectiveness of this Agreement, all references contained therein to
the "Master Agreement" shall mean the Existing Agreement as amended and
restated by this Agreement and all references to the "Collateral Trust
Agreement" shall mean the Collateral Trust Agreement as in effect and as
amended by the Collateral Trust Agreement Amendment.
Section 2.02 Restated USI Commitments. Without limiting the generality of
Section 2.01, on and as of the Effective Date, the following shall occur with
respect to the USI Credit Agreement, as amended and restated by the Existing
Agreement:
(a) the USI Commitment (as reduced hereunder from time to time, the "USI
Commitment") and USI Commitment Percentage (the "USI Commitment
Percentage") of each USI Bank under the USI Credit Agreement shall be
reduced to the amount set forth opposite its name on Schedule I, and
each such USI Bank, to the extent necessary as notified by the Debt
Coordinator, shall purchase for cash such participations from other
USI Banks as shall be required so that after giving effect thereto
each USI Bank shall have a pro rata share equal to its USI Commitment
Percentage in each Loan and Letter of Credit outstanding (or
hereinbelow deemed to be outstanding) under the USI Credit Agreement
and, subject to all other terms and conditions of the USI Credit
Agreement, each USI Bank shall continue to make Loans and purchase
shares in Loans and Letters of Credit (issued under the USI Credit
Agreement), and each USI Issuing Bank shall continue to issue Letters
of Credit (issued under the USI Credit Agreement), in an aggregate
principal or face amount at any time outstanding not to exceed its
total USI Commitment and all applicable subcommitments and commitment
sublimits thereunder;
(b) a ratable portion of funded USI Bank Exposure of each USI Bank as on
the Effective Date (as reduced pursuant to subsection (a) above)
shall be converted (the "Commitment Conversion") into term loan
exposure in the amount set forth opposite each such USI Bank's name
on Schedule I (as reduced hereunder from time to time, the "USI Term
Exposure"), and in connection therewith, the USI Commitment of each
such USI Bank in respect of such funded USI Bank Exposure shall be
converted into a term loan commitment in the amount set forth
opposite such USI Bank's name on Schedule I (as reduced hereunder
from time to time, the "USI Term Commitment"); provided that
repayments and reductions of the USI Term Commitment from time to
time may not be reborrowed for any purpose; and provided further that
the USI Term Exposure shall otherwise be treated as equal to other
USI Bank Exposure with respect to payment rights, amortization and
collateralization; and
26
(c) it is hereby acknowledged that each Multicurrency Commitment (as
defined under the USI Credit Agreement) of each USI Bank has been
terminated.
Section 2.03 Restated Rexair Commitments. Without limiting the generality
of Section 2.01, as of the Effective Date,
(a) the Rexair Commitment (as reduced from time to time, the "Rexair
Commitment") and Rexair Commitment Percentage (the "Rexair Commitment
Percentage") of each Rexair Bank under the Rexair Credit Agreement
shall be reduced to the amount set forth opposite its name on
Schedule I, and, subject to all other terms and conditions of the
Rexair Credit Agreement, each Rexair Bank shall continue to make
Loans and purchase shares in Loans and Letters of Credit, and the
Rexair Issuing Bank shall continue to issue Letters of Credit, in an
aggregate principal or face amount at any time outstanding not to
exceed its total Rexair Commitment and all applicable subcommitments
and commitment sublimits thereunder; and
(b) the covenants in Section 9 of the Rexair Credit Agreement, as amended
by the Existing Ageement, as otherwise amended and as in effect
immediately prior to the Effective Date, shall be further amended as
set forth in Schedule III (the "Rexair Amendment").
Section 2.04 Restated Independent L/C Commitments. Without limiting the
generality of Section 2.01, as of the Effective Date, each Independent L/C
Issuer hereby commits, subject to the terms and conditions of this Agreement,
to maintain and/or extend its outstanding Independent L/Cs set forth on
Schedule II, in each case in an amount equal to or less than the face amount
set forth on Schedule II for each such Independent L/C and on substantially the
same terms, except as to expiry date (or as may otherwise be agreed upon
between USI and such Independent L/C Issuer, provided that pricing shall at all
times be as provided in this Agreement). No other Bank shall be required to
share in the Independent L/C Commitment of any Independent L/C Issuer, nor
(except as required under Section 10.04) be required to acquire a participation
in any of the Independent L/Cs, including any extension thereof, and no
Independent L/C Commitment nor any outstanding Independent L/C thereunder shall
reduce or act as a sublimit upon any other Commitment such Independent L/C
Issuer may have as an Issuing Bank or otherwise under any Credit Agreement.
Section 2.05 Restated Guaranties. Without limiting the generality of
Section 2.01, as of the Effective Date:
(a) each of the guaranties set forth in Article X of the USI Credit
Agreement, and each other guaranty (other than any Rexair Bank Debt
Guaranty under the USI Credit Agreement) by any Loan Party of any
Bank Exposure, whether set forth in any Credit Agreement, any other
Credit Document or otherwise, is hereby amended and is and shall be
deemed to be restated (each, as so amended and restated, a "USI Bank
Debt Guaranty") as an irrevocable and unconditional guarantee of
payment and performance when due, whether at maturity, by
acceleration or otherwise, of any and all Bank Exposure now existing
or hereafter arising, whether contingent or otherwise, of each and
any Loan Party to each and any Bank under any and all Credit
Documents, including, without limitation, any and all Bank Exposure
whether or not heretofore guaranteed or secured thereby, whether now
existing or hereafter arising, funded or unfunded, contingent or
otherwise; and
(b) each of the USI Guaranty, the Rexair Holdings Guaranty and each other
guaranty by any Loan Party of any Rexair Bank Exposure (but, not of
any USI Bank Exposure, whether set forth in the Rexair Credit
Agreement, any other Credit Document or otherwise), is
27
hereby amended and is and shall be deemed to be restated (each, as so
amended and restated, a "Rexair Bank Debt Guaranty") as an
irrevocable and unconditional guarantee of payment and performance
when due, whether at maturity, by acceleration or otherwise, of any
and all Obligations now existing or hereafter arising, whether
contingent or otherwise, of each and any Rexair Obligor to each and
any Rexair Bank (in addition to any other secured creditor party
thereto) under the Rexair Bank Facility, including, without
limitation, any and all Rexair Bank Exposure whether or not
heretofore guaranteed or secured thereby, whether now existing or
hereafter arising, funded or unfunded, contingent or otherwise; it
being understood and agreed that, in the event that the Rexair
Obligors are sold, or all or substantially all of their assets are
sold, and after giving effect to the allocation and application of
the Net Cash Proceeds of such Asset Disposition in accordance with
Sections 3.07(b) and 3.08(b), the Rexair Bank Exposure is not
permanently reduced to zero, then the USI Obligors shall, jointly and
severally, fully and unconditionally, assume in writing all remaining
Rexair Bank Debt as a direct Obligation, and such Obligation shall
continue to be and be deemed Bank Exposure, shall become and be
deemed subject to each USI Bank Debt Guaranty and shall remain fully
secured pursuant to the USI Collateral Documents to the same extent
as any other Bank Exposure.
Section 2.06 Restated Liens. As of the Effective Date:
(a) each of the Shared Collateral Lien and the Non-Shared Lien made or
granted by any Loan Party to secure any Bank Facility pursuant to any
Credit Agreement, USI Collateral Document, other Credit Document or
otherwise, as same may be amended and restated by this Agreement, is
and is hereby confirmed in its entirety as an irrevocable and
unconditional Lien made or granted by such Loan Party to the
Collateral Trustees, and the Collateral Trust Agreement is hereby
amended on the terms set forth on Schedule V hereto (the "Collateral
Trust Agreement Amendment");
(b) each applicable USI Collateral Document is hereby amended and
modified to include among the USI Obligations secured thereunder any
and all Senior Debt Exposure not heretofore included therein (whether
now existing or hereafter arising and whether contingent or
otherwise), including, without limitation, all such Senior Debt
Exposure under or in respect of each Independent L/C Commitment and
each Independent L/C, and any Obligations of any Loan Party to a Bank
in respect of ACH and other cash management services provided by such
Bank, now or hereafter issued and, as of the Effective Date, all
equity and assets of Rexair Holdings and its Subsidiaries are hereby
made subject to the Senior Debt Lien (subordinate, except in the case
of Rexair Holdings equity, in priority to the Rexair Debt Lien), with
each of JUSI and the Rexair Parties becoming parties to each of the
Shared Collateral Documents as grantors or pledgor thereunder with
respect to any and all of its right, title and interest, now existing
or hereafter arising, in or to any and all of such equity and assets,
and all such pledged assets shall be and be deemed additional Shared
Collateral subject to the Shared Collateral Documents, without
affecting the prior rights of the Rexair Banks pursuant to the Rexair
Debt Lien; and
(c) the Rexair Debt Lien securing the Rexair Bank Facility pursuant to
the Rexair Collateral Documents, as amended, restated and otherwise
modified by this Agreement, is hereby confirmed in its entirety as an
irrevocable and unconditional first priority Lien made or granted by
each Loan Party to the Rexair Collateral Agent pursuant to the terms
of the Rexair Collateral Documents as amended, modified and restated
hereby, to secure all of (but solely) the Rexair Bank Exposure,
whether now existing or hereafter arising and whether contingent or
otherwise, for the equal and ratable benefit solely of the Rexair
Banks, based on their proportionate holdings of Rexair Bank Exposure.
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ARTICLE III
COMMON CREDIT PROVISIONS
A. LOANS AND LETTERS OF CREDIT
Section 3.01 Use of Bank Facility Proceeds. (a) Except as provided in
Section 4.04, all Loans, Letters of Credit and other credit extensions under
the Bank Facilities shall be used solely for working capital and operating
purposes (including Capital Expenditures permitted hereunder), provided that,
so long as any Rexair Bank Exposure shall remain outstanding, all revolving
Loans, Letters of Credit or other extensions of credit under the Rexair Credit
Agreement shall be used solely for working capital and operating purposes of
Rexair (including Capital Expenditures permitted under the Rexair Credit
Agreement) and, solely to the extent supported by reasonably detailed
third-party documentation, to fund any liabilities specifically incurred by and
attributable to Rexair Holdings or any of its Subsidiaries and paid by USI
pursuant to any tax sharing, acquisition, cost insurance or other similar
expense-sharing arrangement with USI, and no proceeds of any Loans, Letters of
Credit or other extensions of credit under the USI Credit Agreement, or of any
Independent L/Cs, may be used for any purpose by Rexair Holdings or any of its
Subsidiaries.
(b) Independent L/Cs shall be used solely for the account of USI.
(c) Each party hereby acknowledges that all term loans under the Rexair
Credit Agreement are fully drawn, any commitments in respect thereof have
expired, and any repayments thereof may not be reborrowed for any purpose.
(d) Each party hereby acknowledges that the USI Term Commitment is fully
drawn and any repayments thereof may not be reborrowed for any purpose.
Section 3.02 Interest Rate; Commitment Fees, Etc. (a) Rates. The terms
"Base Rate" and "LIBOR", as each such term is defined in and determined under
the USI Credit Agreement, and the term "Reference Rate", as such term is
defined in and determined under the Rexair Credit Agreement (collectively, the
"Restated Rates"), shall supercede and replace the defined terms having the
same or similar meanings under each of the other Credit Documents, and the
interest rates and fees as determined pursuant to this Section 3.02 shall apply
to all Loans, Letters of Credit and other Obligations of the Obligors under
each Bank Facility, replacing and superseding all like rates and fees (which,
in each case, shall hereafter cease to be of further force or effect). As of
the Effective Date, IBOR Loans, as defined in the 5-Year Credit Agreement and
the Rexair Credit Agreement, and Negotiated Rate Loans and Bid Borrowings, as
defined in the 5-Year Credit Agreement, shall not be permitted.
(b) Applicable Margin. (i) With respect to all Loans under any of the Bank
Facilities, interest on the outstanding amounts thereof shall be payable in
cash (except to the extent set forth in Section 3.02(d) below) at the Base Rate
or LIBOR, as applicable, plus the Applicable Margin (which shall replace the
"Applicable Margin" or other designation for the percentage margin per annum
over the Base Rate and LIBOR Rate under such Bank Facility) as in effect from
time to time as set forth below:
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APPLICABLE MARGIN
Base or Prime
At all times through the earlier Rate Obligations LIBOR Rate Obligations
of the consummation of the Exchange ---------------- ----------------------
Offer and November 30, 2002 3.75% 4.75%
At all times thereafter through
June 30, 2003 5.75% 6.75%
The Applicable Margin for each calendar quarter thereafter until all
Obligations of the Obligors under the Credit Documents and Bank Facilities are
paid in full, commencing with the calendar quarter beginning July 1, 2003,
shall, on the first day of each such calendar quarter, increase by 0.50% per
annum above the Applicable Margin as in effect on the last day of the
immediately preceding calendar quarter.
(ii) All Obligations constituting unreimbursed amounts for drawings under
Independent L/Cs shall bear interest payable in cash on demand at the Default
Rate applicable to Base Rate Credits.
(c) Letter of Credit Fees. (i) On each quarterly Interest Payment Date for
Base Rate Loans (as defined in and determined pursuant to the USI Credit
Agreement, each, a "Quarterly USI Interest Payment Date"), USI shall pay a
Letter of Credit fee equal to the Applicable Margin for LIBOR Rate Obligations
then in effect (the "Restated Letter of Credit Fee") to the USI Agent, for the
ratable benefit of the USI Banks in respect of Letters of Credit under the USI
Credit Agreement, and to each Independent L/C Issuer in respect of its
Independent L/Cs, in each case, payable in arrears based on the average daily
Available Amount of such Letters of Credit.
(ii) On each quarterly Interest Payment Date for Base Rate Loans (as
defined in and determined pursuant to the Rexair Credit Agreement, each, a
"Quarterly Rexair Interest Payment Date"), Rexair shall pay the Restated Letter
of Credit Fee to the Rexair Agent for the ratable benefit of the Rexair Banks
in respect of Letters of Credit under the Rexair Credit Agreement; in each
case, payable in arrears based on the average daily undrawn face amount of such
Letters of Credit. Such fee shall replace any similar fee under the Bank
Facilities.
(d) [Intentionally deleted]
(e) Facing Fees. On each Quarterly USI Interest Payment Date, USI shall
pay a facing fee equal to a per annum rate of 0.25% (the "Restated Facing
Fee"), to each USI Issuing Bank in respect of outstanding Letters of Credit
under the USI Credit Agreement, and to each Independent L/C Issuer in respect
of its outstanding Independent L/Cs, and (ii) on each Quarterly Rexair Interest
Payment Date, Rexair shall pay the Restated Facing Fee to the Rexair Issuing
Bank in respect of outstanding Letters of Credit under the Rexair Credit
Agreement; in each case, payable in arrears based on the average daily undrawn
face amount of such Letters of Credit.
(f) Commitment Fees. On each Quarterly USI Interest Payment Date, USI
shall pay to the USI Agent for the ratable benefit of the USI Banks a
commitment fee equal to the rate per annum of 0.75% (the "Unused Commitment
Fee") on the aggregate average unused USI Commitments and Independent L/C
Commitments, and (ii) on each Quarterly Rexair Interest Payment Date, Rexair
shall pay to the Rexair Agent for the ratable benefit of the Rexair Banks a
commitment fee equal to the Unused Commitment Fee on the aggregate average
unused Rexair Commitments; in each case, computed and payable on each such
quarterly Interest Payment Date based upon the average daily
30
amount of such unused commitments for the previous three-month period then
ended, as calculated by such Agent.
(g) Default Interest. Except as otherwise provided Section 3.02(b)(ii),
upon the occurrence of and during the continuance of a Default under Section
7.01(a) or 7.01(f) or an Event of Default, the Debt Coordinator may, and upon
the request of the Majority Banks shall, require that the Obligor pay interest
("Default Interest") on (i) each Loan and Letter of Credit (including each
Independent L/C), payable in arrears on the dates referred to in clause (b)
above and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum otherwise required to be paid on applicable Bank
Exposure pursuant to this Section 3.02 and (ii) to the fullest extent permitted
by law, the amount of any interest, fee or other amount payable under the
Credit Documents that is not paid in full when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid, in
the case of interest, on the underlying Obligation on which such interest has
accrued pursuant to this Section 3.02; provided, however, that following the
acceleration of any Bank Debt, or the giving of notice by the Debt Coordinator
to accelerate any Bank Debt pursuant to Section 7.01 or upon the occurrence of
a Default under Section 7.01(f), Default Interest shall accrue and be payable
hereunder, whether or not previously required by the Debt Coordinator, and
without notice to the Loan Parties.
(h) Accrued Interest. All interest that accrued pursuant to the Existing
Agreement but remained unpaid as of the Effective Date shall continue to accrue
and be deemed to have accrued and be payable as set forth herein; provided that
the Interest Period applicable to LIBOR Rate Loans made under any of the Credit
Documents or the Existing Agreement and outstanding on the Effective Date shall
remain in effect for the stated duration of such Interest Period.
B. REPAYMENTS AND COMMITMENT REDUCTIONS
Section 3.03 Maturity Date. All Bank Facilities shall mature and be
payable (and in the case of Available Amounts in respect of Letters of Credit
then outstanding, Letter of Credit Collateralization of such Available Amounts
shall be required to be provided in full), and all commitments thereunder shall
terminate, on the Maturity Date. To the extent practicable, Letters of Credit
shall not have expiry dates after the Maturity Date (as such date is determined
on the date of the issuance thereof).
Section 3.04 Scheduled Bank Debt Amortization. (a) Notwithstanding
anything to the contrary in any Credit Document, on or prior to each Scheduled
Amortization Date stated below (each, a "Scheduled Amortization Date"), there
shall have occurred cumulative Permanent Reductions (which may include
reductions through Unfunded Commitment Reductions) of Bank Exposure for each
Bank Facility indicated below since the Effective Date at least equal to the
amount (the "Cumulative Amortization Amount") set forth below opposite such
Scheduled Amortization Date:
USI Credit Agreement:
Scheduled Cumulative
Amortization Date Amortization Amount
----------------- -------------------
July 31, 2003 $20,000,000
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Rexair Credit Agreement:
Scheduled Cumulative
Amortization Date Amortization Amount
----------------- -------------------
December 31, 2002 $2,000,000
March 31, 2003 $4,000,000
June 30, 2003 $6,000,000
September 30, 2003 $8,000,000
In addition, if the Maturity Extension shall have occurred, there shall have
occurred additional cumulative Permanent Reductions (which may include
reductions through Unfunded Commitment Reductions) of Bank Exposure for each
Bank Facility indicated since the Initial Maturity Date at least equal to the
Cumulative Amortization Amount set forth below opposite the applicable
Scheduled Amortization Date:
USI Credit Agreement:
Scheduled Cumulative
Amortization Date Amortization Amount
----------------- -------------------
August 31, 2004 $30,000,000
Rexair Credit Agreement:
Scheduled Cumulative
Amortization Date Amortization Amount
----------------- -------------------
December 31, 2003 $3,000,000
March 31, 2004 $6,000,000
June 30, 2004 $9,000,000
provided that proceeds of Shared Collateral used to make Permanent Reductions
of Senior Debt shall be shared among the holders of Senior Debt Exposure in
accordance with each of their Pro Rata Shares thereof.
(b) (i) The original principal or the face amount of cash and Permitted
Cash Equivalents when deposited in a Cash Collateral Account (as a Letter of
Credit Collateralization or, to the extent required, in connection with an
Unfunded Commitment Reduction) shall be credited, dollar-for-dollar on any date
of determination, in calculating the amount of Permanent Reduction of the
specific Bank Exposure for which such deposit is made, to the holders of such
specified Bank Exposure.
(ii) In the absence of a Default, and subject to all other provisions of
this Agreement, including Section 3.05(a), (A) interest and other income on
cash or Permitted Cash Equivalents deposited in Cash Collateral Accounts
(including any Notes Escrow Account) may be used for working capital and
operating purposes (including Capital Expenditures permitted hereunder), (B)
any Cash and Permitted Cash Equivalents deposited in segregated Cash Collateral
Accounts consisting solely of amounts collateralizing Unfunded Commitment
Reductions shall be used for working capital and operating purposes (including
Capital Expenditures permitted hereunder) prior to any further borrowings or
Letter of Credit issuances under the Bank Facilities, and (C) at any time of
determination, all unused interest and earnings on any Cash Collateral Account,
and the unused principal amount of any Unfunded Commitment Reductions, shall be
included in calculating Excess Cash Flow for all purposes of this Agreement.
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(c) Notwithstanding anything to the contrary stated herein, any amounts
received from time to time in respect of any Bank Exposure shall be applied,
first, to the payment of otherwise unreimbursed costs and expenses, second, to
accrued but unpaid interest (with respect to Bank Debt being repaid at such
time or otherwise due and payable as of such date) and fees and, third, to the
reduction of the principal or face amount of Bank Debt, provided that, only the
amount applied to the permanent reduction of the principal or face amount of
any Bank Exposure shall, for any purpose, be included in the calculation of any
Permanent Reduction or the Cumulative Amortization Amount.
Section 3.05 Mandatory Prepayments. (a) On the 45th day following the end
of each Fiscal Quarter, the USI Obligors shall ratably apply to the prepayment
of USI Bank Exposure and the cash collateralization of Independent L/Cs an
aggregate principal amount equal to Excess Cash Flow as at the end of such
Fiscal Quarter, less such amount thereof as may be required to allow Liquidity
to equal, as at each date set forth below, the amount set forth opposite such
date in the following table:
Sweep Minimum Liquidity
Payment Date at Payment Date
------------ ---------------
02/11/2003 $ 100,000,000
05/13/2003 $ 87,500,000
08/12/2003 $ 75,000,000
11/11/2003 $ 75,000,000
02/10/2004 $ 75,000,000
05/11/2004 $ 50,000,000
08/10/2004 $ 50,000,000
(b) Subject to subsection (d) below, on the date of receipt by any Loan
Party of any Net Cash Proceeds from (1) any Asset Disposition, (2) any
Extraordinary Receipts, (3) the incurrence or issuance of any Debt (other than
Debt permitted under Section 6.02(b)) or (4) the sale or issuance of any Equity
Interests (other than any such sale or issuance to USI or any of its
Subsidiaries), the Obligors shall apply 100% of such Net Cash Proceeds as
follows:
(i) in the case of any such Net Cash Proceeds arising from (A) Asset
Dispositions of or (B) Extraordinary Receipts from Shared Collateral, in
each case, to the Pro Rata Permanent Reduction of Senior Debt Exposure;
(ii) in the case of any such Net Cash Proceeds arising from Asset
Dispositions or Extraordinary Receipts of proceeds of Rexair Collateral,
to the Pro Rata Permanent Reduction solely of Rexair Bank Exposure; and
(iii) in the case of all other Net Cash Proceeds referred to in this
subsection (b), to the Pro Rata Permanent Reduction of Bank Exposure;
provided that no such Permanent Reduction shall be required pursuant to this
subsection (b) with respect to the Net Cash Proceeds from Extraordinary
Receipts unless and until such time, and from time to time thereafter, as the
aggregate amount of such Net Cash Proceeds that have not previously been
applied to a Permanent Reduction of Bank Exposure shall exceed $1,000,000.
(c) on any date on which any Commitments under any of the Bank Facilities
are reduced pursuant to any mandatory or voluntary reduction (including, but
not limited to, any Permanent Reduction), the following additional prepayments
(which may or may not be Permanent Reductions) of outstanding Loans and cash
collateralizations will be required:
33
(i) USI Bank Facilities: If, after giving effect to such reduction in
Commitments, the aggregate principal amount of outstanding Loans, plus the
face amount of undrawn Letters of Credit plus any unreimbursed Letter of
Credit drawings and bankers' acceptance payments under the USI Credit
Agreement exceed the USI Commitments thereunder as then reduced, first,
outstanding Loans under the USI Credit Agreement will be prepaid in the
order of their maturity and, second, Letter of Credit Collateralizations
shall be made, cumulatively, in an aggregate amount equal to such excess.
(ii) Rexair Bank Facility: If, after giving effect to such reduction
in Commitments, the aggregate principal amount of outstanding Loans, plus
the face amount of undrawn Letters of Credit plus any unreimbursed Letter
of Credit drawings and bankers' acceptance payments under the Rexair
Credit Agreement exceed the Rexair Commitments thereunder as then reduced,
first, outstanding Loans thereunder shall be repaid in the order provided
in the Rexair Credit Agreement and, second, Letter of Credit
Collateralizations shall be made, cumulatively, in an aggregate amount
equal to such excess.
(iii) Independent L/C Commitments: If, after giving effect to such
reduction in Commitments, the aggregate outstanding face amount of undrawn
Letters of Credit plus any unreimbursed Independent L/C drawings in
respect of Independent L/Cs of any Bank exceeds such Bank's Independent
L/C Commitment as then reduced, first, unreimbursed Independent L/C
drawings in respect of such Independent L/Cs shall be repaid and, second,
a Letter of Credit Collateralization shall be made in the amount of such
excess.
(d) (i) Upon satisfaction by USI of the amortization requirements for the
July 31, 2003 Scheduled Amortization Date as set forth in Section 3.04(a), USI
shall be permitted to retain either (1) Net Cash Proceeds from Asset
Dispositions in an amount equal to the lesser of (A) the amount of Carryback
Claims actually applied to such amortization payment and (B) $20,000,000 or (2)
Carryback Claims in an amount equal to the lesser of (A) the amount of Net Cash
Proceeds from Asset Dispositions actually applied to such amortization payment
and (B) $20,000,000 (as applicable, the "Retained Refund Amount").
(ii) If the Maturity Extension shall have occurred, and so long as no
Default shall have occurred and be continuing, USI shall be permitted to retain
Net Cash Proceeds from Asset Dispositions (the sum of such retained amounts
being the "Reserved Net Cash Proceeds") in an aggregate amount not to exceed
the Reserved Amount, to be applied, on and after October 15, 2003, solely to
the payment at maturity of the Remaining Notes in accordance with the terms
thereof; provided that any Reserved Net Cash Proceeds that are not used in
connection with the payment at maturity of the Remaining Notes shall be subject
to the provisions of subsection (b) above.
Section 3.06 Optional Prepayments. Optional prepayments of the Bank
Facilities and Permanent Reductions of Bank Exposure will be permitted at any
time, without premium or penalty, other than breakage costs for prepayments not
made at the end of an interest period; provided that any reduction of an
Independent L/C Commitment shall require the consent of the affected
Independent L/C Issuer.
Section 3.07 Pro Rata Allocation of Permanent Reductions. Any amounts to
be applied pursuant to Section 3.04, 3.05 or 3.06 to the Permanent Reduction
of:
(a) all Senior Debt Exposure, shall be allocated Pro Rata among all
holders of Senior Debt Exposure based on their respective Pro Rata Shares
of Senior Debt Exposure at such time, and applied pursuant to Section
3.08(a),
34
(b) solely Rexair Bank Exposure, shall be allocated Pro Rata among
Rexair Banks, based on their respective Pro Rata Shares of Rexair Bank
Exposure at such time, and applied pursuant to Section 3.08(b), and
(c) all Bank Exposure, shall be allocated Pro Rata among all Banks,
based on their respective Pro Rata Shares of the Bank Exposure at such
time, and applied pursuant to Section 3.08(c);
provided, however, that notwithstanding anything to the contrary stated in this
Section 3.07 (or in the definition of the term Pro Rata Share), in the case of
any Asset Disposition involving the simultaneous sale of all or substantially
all of the Rexair Collateral together with other assets not constituting Rexair
Collateral, if the portion of the Net Cash Proceeds thereof attributable to the
Rexair Collateral is (after the allocation thereof among the Rexair Banks in
accordance with clause (b) above, and the application thereof by the Rexair
Banks in accordance with Section 3.08(b)) insufficient to permanently reduce to
zero all Rexair Bank Exposure, then, after application of such portion of the
Net Cash Proceeds Pro Rata among the Rexair Banks in accordance with clause (b)
above, the remaining Net Cash Proceeds of such Asset Disposition shall be
allocated among all holders of Senior Debt Exposure or among all Banks in
accordance with clause (a) or (c), as applicable, except that, in either such
case, the Pro Rata Share of each Rexair Bank in such other Net Cash Proceeds
shall be deemed to be the arithmetic mean of (x) a percentage equal to the Pro
Rata Share that applied to such Rexair Bank immediately prior to the Asset
Disposition, without giving effect to any application of the Net Cash Proceeds
thereof, and (y) a percentage equal to the Pro Rata Share that would apply to
such Rexair Bank if the Rexair Collateral had been sold separately and prior to
the sale of the other assets involved in the Asset Disposition, and the Net
Cash Proceeds attributed to the Rexair Collateral had already been allocated to
the Rexair Banks in accordance with Sections 3.07(b) and applied to the
Permanent Reduction of Rexair Bank Exposure in accordance with Section 3.08(b).
Each of the Banks agrees to review the terms and conditions of each proposed
Asset Disposition in good faith based on the merits thereof.
Section 3.08 Application of Pro Rata Allocations. (a) Upon the receipt of
any amounts to be allocated among all holders of Senior Debt Exposure pursuant
to Section 3.07(a),
(i) the Pro Rata allocation of each Noteholder shall be deposited
into a segregated Cash Collateral Account maintained at the Debt
Coordinator for the Pro Rata benefit of the holders of such series of
Notes (the "Notes Escrow Account"),
(ii) the Pro Rata allocation of each Bank (including, in its capacity
as an Independent L/C Issuer), shall be apportioned, based on the relative
amounts of the categories of Bank Exposure addressed in each of clauses
(A), (B) and (C) below, and as so apportioned, applied to as follows:
(A) the amount apportioned to this clause shall be applied to
the Permanent Reduction of such Bank's outstanding Loans (in the
order of their maturities) and to pay any reimbursement Obligations
due to it in respect of drawn Letters of Credit (including
Independent L/Cs) and bankers acceptances under all Bank Facilities
to which such Bank is a party, Pro Rata across such Bank Facilities,
(B) the amount apportioned to this clause shall be applied to
the Letter of Credit Collateralization of such Bank's participation
in any undrawn amounts of outstanding Letters of Credit (including
Independent L/Cs) issued under any of the Bank Facilities (including
any Independent L/C Commitments) to which it is a party, Pro Rata
across such Bank Facilities, and
35
(C) the amount apportioned to this clause shall be applied as
Unfunded Commitment Reductions of such Bank's unfunded commitments,
Pro Rata across the Bank Facilities to which it is a party.
(b) Upon the receipt of any amounts to be allocated solely among the
Rexair Banks, pursuant to Section 3.07(b), the Pro Rata allocation of each
Rexair Bank shall be applied as follows:
(i) first, to Permanent Reduction of such Rexair Bank's
outstanding Loans under the Rexair Bank Facility (in the order of
maturity provided for in the Rexair Credit Agreement) and to pay any
reimbursement Obligations due to it in respect of drawn Letters of
Credit and bankers acceptances issued under the Rexair Bank Facility,
(ii) second, to the Letter of Credit Collateralization of such
Rexair Bank's participation in any undrawn amounts of outstanding
Letters of Credit issued under the Rexair Bank Facility, and
(iii) third, as an Unfunded Commitment Reduction of such Bank's
unfunded commitments under the Rexair Facility.
(c) Upon the receipt of any amounts to be allocated among all Banks,
pursuant to Section 3.07(c), the Pro Rata allocation of each Bank shall be
applied as follows:
(i) first, to the Permanent Reduction of such Bank's outstanding
Loans (in the order of their maturities) and to pay any reimbursement
Obligations due to it in respect of drawn Letters of Credit
(including Independent L/Cs) and bankers acceptances under all Bank
Facilities to which such Bank is a party, Pro Rata across such Bank
Facilities,
(ii) second, to the Letter of Credit Collateralization of such
Banks participation in any undrawn amounts of outstanding Letters of
Credit (including Independent L/Cs) issued under any of the Bank
Facilities (including any Independent L/C Commitments) to which it is
a party, Pro Rata across such Bank Facilities, and
(iii) third, as Unfunded Commitment Reductions of such Bank's
unfunded commitments, Pro Rata across the Bank Facilities to which it
is a party.
C. MISCELLANEOUS
Section 3.09 Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or to the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force
of law), there shall be any increase in the cost to any Bank of agreeing to
make or of making, funding or maintaining any "LIBOR Rate Loans" as defined
under any Bank Facility or of agreeing to issue or of issuing or maintaining or
participating in Letters of Credit or bankers' acceptances or other credit
extensions (excluding, for purposes of this Section 3.09, any such increased
costs resulting from (x) Taxes or Other Taxes (as to Section 3.10 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Bank is organized or has its applicable lending office or
any political subdivision thereof), then the Loan Parties shall from time to
time, upon demand by such Bank (with a copy of such demand to the Debt
Coordinator), pay to the Debt Coordinator for the account of such Bank
additional amounts sufficient to compensate such Bank for such increased cost;
provided,
36
however, that a Bank claiming additional amounts under this Section 3.09(a)
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different applicable lending office
if the making of such a designation would avoid the need for, or reduce the
amount of, such increased cost that may thereafter accrue and would not, in the
reasonable judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate as to the amount of such increased cost, submitted to the Loan
Parties by such Bank, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Bank determines that compliance with any law or regulation or
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank and that the amount of such capital is increased by or
based upon the existence of such Bank's commitment to lend or issue or
participate in Letters of Credit or provide other credit extensions under any
Bank Facility (or similar contingent obligations), then, upon demand by such
Bank or such corporation (with a copy of such demand to the Debt Coordinator),
the Loan Parties shall pay to the Debt Coordinator for the account of such
Bank, from time to time as specified by such Bank, additional amounts
sufficient to compensate such Bank in the light of such circumstances, to the
extent that such Bank reasonably determines such increase in capital to be
allocable to the existence of such Bank's commitment to provide credit
extensions under such Bank Facility. A certificate as to such amounts submitted
to the Loan Parties by such Bank shall be conclusive and binding for all
purposes, absent manifest error.
(c) If, with respect to any "Eurodollar Loan" as defined under any Bank
Facility, the Majority Banks notify the Debt Coordinator that the Eurodollar
Rate (as defined thereunder) for any applicable interest period for any credit
extensions under any Bank Facility will not adequately reflect the cost to such
Banks of making, funding or maintaining their LIBOR Rate Credit for such
interest period, the Debt Coordinator shall forthwith so notify the Loan
Parties and the Banks, whereupon (i) each such LIBOR Rate Credit under the Bank
Facilities will automatically, on the last day of the then existing interest
period therefor, convert into a Base Rate Loan and (ii) the Obligation of the
Banks to make, or to convert credit extensions under the Bank Facilities into,
Eurodollar Rate credits shall be suspended until the Debt Coordinator shall
notify the Loan Parties that the Majority Banks have determined that the
circumstances causing such suspension no longer exist; provided that any Bank
Facility that does not by its terms provide for Base Rate Loans shall be deemed
in the circumstances described in this clause (c) to provide for interest at
the Base Rate.
(d) Notwithstanding any other provision of this Agreement or any other
Credit Document, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other Governmental Authority shall assert that it is unlawful, for any
Bank or its eurodollar lending office to perform its Obligations under any Bank
Facility to make a LIBOR Rate Credit (as defined thereunder) or to continue to
fund or maintain any LIBOR Rate Credit under the Bank Facilities, then, on
notice thereof and demand therefor by such Bank to the Loan Parties through the
Debt Coordinator, (i) each such LIBOR Rate Credit, and each commitment by such
Bank to make LIBOR Rate Credit, under the Bank Facilities will automatically,
upon such demand, convert into a Base Rate Loan or commitment (as defined under
the applicable Credit Agreement) and (ii) the obligation of the Banks to make,
or maintain or to convert credit extensions into, LIBOR Rate Credits under the
Bank Facilities shall be suspended until the Debt Coordinator shall notify the
Loan Parties that such Bank has determined that the circumstances causing such
suspension no longer exist, provided, however, that before making any such
demand, such Bank agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
eurodollar lending office if the making of such a designation would allow such
Bank or its eurodollar lending office to continue to perform its Obligations to
make such
37
LIBOR Rate Credit or to continue to fund or maintain such LIBOR Rate Credit and
would not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank.
Section 3.10 Taxes. (a) Any and all payments by each Loan Party under or
in respect of the Credit Documents shall be made free and clear of, and without
deduction for, any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and each Agent with respect to any Bank
Facility, taxes that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction under the laws of
which such Bank or such Agent, as the case may be, is organized or any
political subdivision thereof and, in the case of each Bank, taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction of such Bank's applicable lending office
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments under or in respect of the Transaction Documents being hereinafter
referred to as "Taxes"). If any Loan Party shall be required by law to deduct
any Taxes from or in respect of any sum payable under or in respect of the
Transaction Documents to any Bank, Agent or the Debt Coordinator, (i) the sum
payable by such Loan Party shall be increased as may be necessary so that,
after such Loan Party, any applicable Bank, Agent or the Debt Coordinator has
made all required deductions (including deductions applicable to additional
sums payable under this Section 3.10), such Bank, Agent or the Debt
Coordinator, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Loan Party shall make
all such deductions and (iii) such Loan Party shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Loan Party shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made by such Loan Party under the Transaction Documents or
from the execution, delivery or registration of, performance under, or
otherwise with respect to the Transaction Documents (hereinafter referred to as
"Other Taxes").
(c) Each Loan Party shall indemnify each Bank, Agent and the Debt
Coordinator for and hold them harmless against the full amount of Taxes and
Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 3.10, imposed on or paid by
such Bank, Agent or the Debt Coordinator (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Bank, Agent or the Debt Coordinator (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the appropriate
Loan Party shall furnish to the Debt Coordinator, at its address referred to on
the signature page hereof, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment under the Credit Documents
by or on behalf of a Loan Party through an account or branch outside the United
States or by or on behalf of such Loan Party by a payor that is not a United
States person, if such Loan Party determines that no Taxes are payable in
respect thereof, such Loan Party shall furnish, or shall cause such payor to
furnish, to the Debt Coordinator, at such address, an opinion of counsel
acceptable to the Debt Coordinator stating that such payment is exempt from
Taxes. For purposes of subsections (d) and (e) of this Section 3.10, the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Code.
(e) Each Bank organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank party hereto on the Effective Date and
on the date of the assignment pursuant to which it becomes a
38
Bank in the case of each other Bank, and from time to time thereafter as
requested in writing by USI (but only so long thereafter as such Bank remains
lawfully able to do so), provide each of the Debt Coordinator and USI with two
original Internal Revenue Service forms W-8BEN or W-8ECI or, in the case of a
Bank that has certified in writing to the Debt Coordinator that it is not a
"bank" as defined in Section 881(c)(3)(A) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of USI and
is not a controlled foreign corporation related to USI (within the meaning of
Section 864(d)(4) of the Code), Internal Revenue Service Form W-8BEN, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Bank is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to the Credit Documents
or, in the case of a Bank providing a form W-8BEN, certifying that such Bank is
a foreign corporation, partnership, estate or trust. If the forms provided by a
Bank at the time such Bank first becomes a party to this Agreement indicate a
United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such Bank
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such forms; provided, however, that if, at the
effective date of the assignment pursuant to which a Bank becomes a party to
this Agreement, the Bank assignor was entitled to payments under subsection (a)
of this Section 3.10 in respect of United States withholding tax with respect
to interest paid at such date, then, to such extent, the term "Taxes" shall
include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Bank assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN
or W-8ECI (or the certificate described above), that the applicable Bank
reasonably considers to be confidential, such Bank shall give notice thereof to
USI and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Bank has failed to provide USI
with the appropriate form described in subsection (e) above (other than if such
failure is due to a change in law occurring after the date on which a form
originally was required to be provided or if such form otherwise is not
required under subsection (e) above), such Bank shall not be entitled to
indemnification under subsection (a) or (c) of this Section 3.10 with respect
to Taxes imposed by the United States by reason of such failure; provided,
however, that should a Bank become subject to Taxes because of its failure to
deliver a form required hereunder, the Obligors shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
Section 3.11 Payments and Computations. (a) Each Bank and each Loan Party,
as applicable, shall make each payment (including providing any Letter of
Credit Collateralization) hereunder and under each other Credit Document
(without set-off, counterclaim or reduction), not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Debt Coordinator at
the Debt Coordinator's Account in same day funds, with payments being received
by the Debt Coordinator after such time being deemed to have been received on
the next succeeding Business Day. The Debt Coordinator will promptly thereafter
cause like funds to be distributed in accordance with the terms of this
Agreement.
(b) All computations of amounts due under the Credit Documents shall be
made by the Debt Coordinator on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such amounts are payable. Each
determination by the Debt Coordinator of an amount due under the Credit
Documents shall be conclusive and binding for all purposes, absent manifest
error.
39
(c) Whenever any payment under any of the Credit Documents shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be.
ARTICLE IV
CONDITIONS
Section 4.01 Conditions Precedent to Effectiveness. Articles II and III of
this Agreement shall become effective as of the date (the "Effective Date")
when and only when all of the conditions set forth in this Section 4.01 have
been satisfied (or waived in accordance with Section 10.01):
(1) The Debt Coordinator shall have received on or before the
Effective Date, each dated such day (unless otherwise specified), in form
and substance reasonably satisfactory to the Debt Coordinator (unless
otherwise specified) and in sufficient copies for each Bank:
(i) a counterpart of this Agreement executed by or on behalf of
each Loan Party and each Bank;
(ii) [Intentionally deleted];
(iii) Foreign Collateral Documents and Non-Shared Guaranties in
form and substance reasonably satisfactory to the Debt Coordinator
shall have been executed and delivered by the applicable Foreign Loan
Parties with respect to the Foreign Collateral and guaranties set
forth in Schedule 4.01(1)(iii);
(iv) certified copies of the resolutions of the Board of
Directors of each Loan Party approving the Transactions and each
Transaction Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any,
with respect to the Transactions and each Transaction Document to
which it is or is to be a party;
(v) a copy of a certificate of the Secretary of State of the
jurisdiction of incorporation or organization of each Loan Party,
dated reasonably near the Effective Date, certifying (A) as to a true
and correct copy of the charter of such Loan Party, and each
amendment thereto on file in such Secretary's office and (B) that (1)
such amendments are the only amendments to such Loan Party's charter
or other organizational documents on file in such Secretary's office,
(2) such Loan Party has paid all franchise taxes to the date of such
certificate and (C) such Loan Party is duly incorporated and in good
standing or presently subsisting under the laws of the State of the
jurisdiction of its incorporation; provided that no such Secretary of
State's certificate shall be required to be delivered by any
applicable Loan Party that has delivered a certificate of an
Authorized Officer of such Loan Party certifying that such Secretary
of State's certificate has been previously delivered to the Debt
Coordinator and has not been amended or otherwise modified since the
time of such delivery;
(vi) [Intentionally deleted];
40
(vii) a certificate of each Loan Party, signed on behalf of such
Loan Party by an Authorized Officer thereof, dated as of the
Effective Date (the statements made in which certificate shall be
true on and as of the Effective Date), certifying as to (A) the
absence of any amendments to the charter of such Loan Party since the
date of the Secretary of State's certificate referred to in clause
(ix) above, (B) a true and correct copy of the bylaws of such Loan
Party as in effect on the date on which the resolutions referred to
in clause (viii) were adopted and on the Effective Date, (C) the due
incorporation and good standing or valid existence of such Loan Party
as a corporation organized under the laws of the jurisdiction of its
incorporation or organization, and the absence of any proceeding for
the dissolution or liquidation of such Loan Party, (D) the truth, in
all material respects, of the representations and warranties
contained in the Amendment Documents and the Credit Documents as
though made on and as of the Effective Date other than any such
representations or warranties that, by their terms, refer to a
specific date other than the Effective Date, in which case as of such
specific date and (E) the absence of any event occurring and
continuing, or resulting from the consummation of the Transactions,
that constitutes a Default;
(viii) a certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Transaction
Document to which it is or is to be a party and the other documents
to be delivered hereunder and thereunder;
(ix) a certified copy of a list of all pending applications
filed by USI and its Subsidiaries relating to intellectual property
of the type described in Section 5.01(u), provided that a complete
list of all such pending applications shall be delivered to the Debt
Coordinator no later than 30 days following the Effective Date;
(x) evidence of insurance naming the Collateral Trustees or,
with respect to the Rexair Collateral, the Rexair Collateral Agent,
as additional insureds and loss payees with such responsible and
reputable insurance companies or associations, and in such amounts
and covering such risks, as is satisfactory to the Banks, including,
without limitation, business interruption insurance; provided that no
such evidence of insurance shall be required to be delivered if USI
or Rexair, as applicable, has delivered a certificate of an
Authorized Officer of USI or Rexair, as applicable, certifying that
such evidence of insurance has been previously delivered to the Debt
Coordinator and that such insurance is in full force and effect;
(xi) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
the Loan Parties, in substantially the form of Exhibit B hereto; and
(xii) such other opinions of counsel to the Loan Parties
covering such matters as the Banks through the Debt Coordinator may
reasonably request.
(2) The Surviving Debt shall be on terms and conditions satisfactory
to the Banks.
(3) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, Governmental Authority or arbitrator that
purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transactions.
41
(4) All Governmental Authorizations and third party consents and
approvals necessary in connection with the Transactions shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Banks) and shall remain in effect, and no law or regulation shall
be applicable in the judgment of the Banks, in each case that restrains,
prevents or imposes materially adverse conditions upon the Transactions or
the rights of the Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now owned
or hereafter acquired by any of them.
(5) On the Effective Date, USI shall have paid all accrued fees of
the Debt Coordinator and the Banks and all accrued expenses of the Debt
Coordinator (including the accrued fees and expenses of counsel to the
Debt Coordinator, local counsel to the Debt Coordinator and the Banks and
the Financial Advisor) to the extent an invoice therefor has been
delivered to USI at least one Business Day prior to the Effective Date.
(6) USI shall have disclosed to the Banks on or before the Effective
Date the terms and conditions of the Exchange Offer and any other
transactions consummated in connection therewith.
(7) All amounts on deposit in the L/C Cash Collateral Account and all
amounts in excess of $11,700,000 on deposit in the Independent L/C Cash
Collateral Account immediately prior to the Effective Date shall have been
applied to the Permanent Reduction of USI Bank Exposure, and any Default
arising from such application under the Existing Agreement shall be deemed
to have been waived.
(8) The receipt by the Debt Coordinator, for the Pro Rata benefit of
each Bank, of an amendment fee of 0.75% of the outstanding Total Principal
Exposure of each such Bank under all of the Bank Facilities as on the
Effective Date (the "Amendment Fee").
Section 4.02 Conditions Precedent to Each Credit Extension. The obligation
of each Bank to make a Loan, issue, rollover, extend or replace a Letter of
Credit or bankers' acceptance or other credit extension pursuant to any Credit
Documents (each of the foregoing being a "Credit Extension") and the right of
any Loan Party to request a Credit Extension, shall be, in addition to the
conditions precedent present in the applicable Bank Facility, subject to the
further conditions precedent that, on the date of such Credit Extension,
including, without limitation, delivery by such Loan Party of a borrowing
notice or request for issuance thereunder, in each case in the form prescribed
therein, the following statements shall be true (and the acceptance by such
Loan Party of the proceeds of such Credit Extension shall constitute a
representation and warranty by USI and such Loan Party that, on the date of
such Credit Extension, such statements are true):
(a) the representations and warranties contained in Article V of this
Agreement and in each other Amendment Document and Credit Document are
correct in all material respects on and as of such date, before and after
giving effect to such Credit Extension and to the application of the
proceeds therefrom, as though made on and as of such date, other than any
such representations or warranties that, by their terms, refer to a
specific date other than the date of such Credit Extension, in which case
as of such specific date;
(b) no Default has occurred and is continuing, or would result from
such Credit Extension or from the application of the proceeds therefrom;
(c) since September 30, 2001, there has been no Material Adverse
Change.
42
Section 4.03 Conditions Precedent to Maturity Extension. The Maturity Date
will be automatically extended to the Extended Maturity Date upon satisfaction
of the following conditions on or prior to the Initial Maturity Date (the
"Maturity Extension"):
(a) no Default shall have occurred or be continuing, or would result
from such extension;
(b) the Debt Coordinator shall be satisfied that the terms and
conditions of the Extended Notes are consistent with the definition
thereof and with the definition of "Exchange Offer" and are otherwise
satisfactory to the Debt Coordinator.
(c) On or prior to the date of the Maturity Extension, USI shall have
paid (A) to the Debt Coordinator for the Pro Rata benefit of each Bank an
extension fee of 0.75% of the outstanding Total Principal Exposure of such
Bank under all Bank Facilities as at such date (the "Extension Fee"), and
(B) all other accrued fees of the Debt Coordinator and the Banks and all
accrued expenses of the Debt Coordinator (including the accrued fees and
expenses of counsel to the Debt Coordinator, local counsel to the Debt
Coordinator and the Banks and the Financial Advisor) to the extent an
invoice therefor has been delivered to USI at least one Business Day prior
to the date of the Maturity Extension.
(d) Noteholders participating in the Exchange Offer shall represent
not less than 90% of the aggregate face amount of the 2003 Notes (after
giving effect to which not more than $25,000,000 in aggregate face amount
of Remaining Notes shall be outstanding).
Section 4.04 Use of Revolving Proceeds. The proceeds of each revolving
credit or swingline borrowing under the USI Credit Agreement shall be used by
USI or any of its Subsidiaries solely to pay ordinary course working capital
and operating expenses, permitted Capital Expenditures and Investments
permitted under Section 6.02(f)(ii)(C) and each such borrowing shall be applied
to such payment within three days after the date of such borrowing; provided
that if the Exchange Offer shall have been consummated, and subject to
satisfaction of each of the conditions set forth in Section 4.02, a portion of
the unfunded USI Revolving Credit Commitments (the "Restricted Commitments")
and borrowings made pursuant thereto in an amount not to exceed the sum of (i)
the Reserved Amount minus (ii) the Reserved Net Cash Proceeds, shall be
available to USI to be applied solely to the payment at maturity of the
Remaining Notes in accordance with the terms thereof.
Section 4.05 Determinations Under Section 4.01. For purposes of
determining compliance with the conditions specified in Section 4.01, each Bank
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Banks unless an officer of the
Debt Coordinator responsible for the Transactions contemplated by the Amendment
Documents shall have received notice from such Bank prior to the Effective Date
specifying its objection thereto.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties. USI represents and warrants
as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a corporation
or limited liability company duly organized, validly existing and in good
standing under the laws of the
43
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation or limited liability company in each
other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed could not be reasonably
likely to have a Material Adverse Effect and (iii) has all requisite
corporate power and authority (including, without limitation, all
Governmental Authorizations) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(b) Set forth on Schedule 5.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party in existence on the date
hereof, showing (as to each such Subsidiary) the jurisdiction of its
incorporation or organization. Except as set noted on Schedule 5.01(b),
each Subsidiary is a wholly-owned Subsidiary of USI. All of the
outstanding Equity Interests in each Loan Party's Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by such
Loan Party or one or more of its Subsidiaries free and clear of all Liens,
except those created under the Collateral Documents.
(c) The execution, delivery and performance by each Loan Party of
each Transaction Document to which it is or is to be a party, and the
consummation of the Transactions, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and
do not (i) contravene such Loan Party's charter or bylaws, (ii) violate
any law, rule, regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict with
or result in the breach of, or constitute a default or require any payment
to be made under, any material contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting
any Loan Party, any of its Subsidiaries or any of their properties or (iv)
except for the Liens created under the Transaction Documents, result in or
require the creation or imposition of any Lien upon or with respect to any
of the properties of any Loan Party or any of its Subsidiaries. No Loan
Party or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or
breach of which could be reasonably likely to have a Material Adverse
Effect.
(d) No Governmental Authorization, and no notice to or filing with,
any Governmental Authority or any other third party is required for (i)
the due execution, delivery, recordation, filing or performance by any
Loan Party of any Transaction Document to which it is or is to be a party,
or for the consummation of the Transactions, (ii) the grant by any Loan
Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) the perfection or maintenance of the Liens created under the
Collateral Documents (including the first priority nature thereof to the
extent required hereunder) or (iv) the exercise by any the Debt
Coordinator or any Bank of its rights under the Amendment Documents or the
remedies in respect of the Collateral pursuant to the Collateral
Documents, other than filings to perfect the Liens granted pursuant to the
Collateral Documents and any filings that may be necessary to comply with
state and Federal securities laws in connection with the exercise of any
remedies under the Collateral Documents.
(e) This Agreement has been, and each other Transaction Document when
delivered has been or will have been, duly executed and delivered by each
Loan Party party thereto. This Agreement is, and each other Transaction
Document when delivered was or will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan
Party in accordance with its terms, except as enforcement may be limited
by
44
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in
equity or at law).
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action pending or threatened before any court, Governmental
Authority or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality, validity
or enforceability of any Transaction Document or the consummation of the
Transactions.
(g) All financial statements and other financial information required
to be delivered by USI and each other Loan Party for any period, up to and
including the Effective Date, under each Bank Facility have been furnished
to each Bank, fairly present the Consolidated and consolidating financial
condition of USI and its Subsidiaries as at the date on which each such
period ended, all in accordance with generally accepted accounting
principles as at such date applied on a consistent basis (except as
otherwise noted to the applicable Banks at the time of delivery thereof).
(h) The Consolidated balance sheets of USI and its Subsidiaries as at
June 30, 2002, and the related Consolidated statements of income and
weekly cash flows of USI and its Subsidiaries for the period then ended,
certified by the Chief Financial Officer of USI, copies of which have been
furnished to each Bank, fairly present the Consolidated financial
condition of USI and its Subsidiaries as at such date and the Consolidated
results of operations of USI and its Subsidiaries for the period ended on
such date, in each case giving effect to the Transactions, all in
accordance with GAAP.
(i) The Consolidated and consolidating forecasted balance sheets,
statements of income and statements of cash flows of USI and its
Subsidiaries delivered to the Banks pursuant to 6.03 were prepared in good
faith on the basis of the assumptions stated therein, which assumptions
were fair in light of the conditions existing at the time of delivery of
such forecasts, and represented, at the time of delivery, USI's best
estimate of its future financial performance.
(j) None of the information, exhibits and reports furnished by or on
behalf of any Loan Party to the Debt Coordinator or any Bank in connection
with the negotiation of the Amendment Documents or pursuant to the terms
of the Credit Documents, taken as a whole, contained any untrue statement
of a material fact or omitted to state a material fact necessary to make
the statements made therein not misleading.
(k) USI is not engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock, and no proceeds of any
borrowing, the issuance of a Letter of Credit, bankers' acceptance or to
request any other credit extension will be used to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing
or carrying any Margin Stock.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any
Loan Party nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935,
as amended. Neither the making of a Credit Extension, the application
45
of the proceeds or repayment thereof by USI, nor the consummation of the
other transactions contemplated by the Transaction Documents, will violate
any provision of any such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(m) All filings and other actions necessary or desirable to perfect
and protect the security interest in the Collateral created under the USI
Collateral Documents have been duly made or taken and are in full force
and effect, and the USI Collateral Documents create in favor of the
Collateral Trustees and, in respect of the Rexair Collateral, the Rexair
Collateral Agent, for the benefit of the Banks and the other Secured
Holders and Secured Rexair Creditors, as applicable, a valid and perfected
first priority (subject to the Rexair Debt Lien in the case of the Rexair
Collateral) security interest in the Collateral, securing the payment of
the Senior Debt, and all filings and other actions necessary or desirable
to perfect and protect such security interest have been duly taken. The
Loan Parties are the legal and beneficial owners of the Collateral free
and clear of any Lien, except for the liens and security interests created
or permitted under the Credit Documents.
(n) (i) Except to the extent where the failure to do so could be
reasonably likely to have a Material Adverse Effect or as otherwise set
forth on Part I of Schedule 5.01(n) hereto, (A) the operations and
properties of each Loan Party and each of its Subsidiaries comply in all
material respects with all applicable Environmental Laws and Environmental
Permits, all past non-compliance with such Environmental Laws and
Environmental Permits has been resolved without ongoing obligations or
costs, and (B) no circumstances exist that could be reasonably likely to
(1) form the basis of an Environmental Action against any Loan Party or
any of its Subsidiaries or any of their properties that could have a
Material Adverse Effect or (2) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(ii) Except to the extent where the failure to do so could be
reasonably likely to have a Material Adverse Effect or as otherwise set
forth on Part II of Schedule 5.01(n) hereto, (A) none of the properties
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries is listed or proposed for listing on the NPL or on the
CERCLIS or any analogous foreign, state or local list or is adjacent to
any such property; (B) there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been
treated, stored or disposed on any property currently owned or operated by
any Loan Party or any of its Subsidiaries or, to the best of its
knowledge, on any property formerly owned or operated by any Loan Party or
any of its Subsidiaries; (C) there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Loan Party or
any of its Subsidiaries; and (D) Hazardous Materials have not been
released, discharged or disposed of on any property currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries.
(iii) Except to the extent where the failure to do so could be
reasonably likely to have a Material Adverse Effect or as otherwise set
forth on Part III of Schedule 5.01(n) hereto, or as may be necessary or
desirable in connection with any Asset Disposition, neither any Loan Party
nor any of its Subsidiaries is undertaking, and has not completed, either
individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials
at any site, location or operation, either voluntarily or pursuant to the
order of any Governmental Authority or the requirements of any
Environmental Law, and all Hazardous Materials generated, used, treated,
handled or stored at, or transported to or from,
46
any property currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries have been disposed of in a manner not reasonably
likely to have a Material Adverse Effect.
(o) Each Loan Party and each of its Subsidiaries has filed, has
caused to be filed or has been included in all tax returns (federal,
state, local and foreign) required to be filed and has paid all taxes
shown thereon to be due, together with applicable interest and penalties.
(p) Set forth on Schedule 5.01(p) hereto is a complete and accurate
list of all Liens (other than Liens granted under the Collateral
Documents, Liens incurred after the Effective Date and permitted by
Section 6.02(a) and Liens against the assets of Foreign Subsidiaries to
the extent that such Liens do not secure any Debt) on the property or
assets of any Loan Party or any of its Subsidiaries, showing as of the
date hereof the lienholder thereof, the principal amount of the
obligations secured thereby and the property or assets of such Loan Party
or such Subsidiary subject thereto.
(q) Set forth on Schedule 5.01(q) hereto is a complete and accurate
list of all Surviving Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(r) Set forth on Schedule 5.01(r) hereto is a complete and accurate
list of all real property owned by any Loan Party or any of its
Subsidiaries (other than Foreign Subsidiaries) on the date hereof, showing
as of the date hereof the street address, county or other relevant
jurisdiction, state, record owner, and, to the extent available, book and
estimated fair value thereof. Each Loan Party or such Subsidiary has good,
marketable and insurable fee simple title to such real property, free and
clear of all Liens, other than Liens created or permitted by the Amendment
Documents and Credit Documents.
(s) Set forth on Schedule 5.01(s) hereto is a complete and accurate
list of all leases of real property under which any Loan Party or any of
its Subsidiaries (other than Foreign Subsidiaries) is the lessee on the
date hereof, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, lessor, lessee, and, to the extent
available, expiration date and annual rental cost thereof.
(t) Set forth on Schedule 5.01(t) hereto is a complete and accurate
list of all Investments (other than Investments permitted under Section
6.02(f)(iv)) having a value in excess of $50,000 held by any Loan Party or
any of its Subsidiaries on the date hereof, showing as of the date hereof
the amount, obligor or issuer and maturity, if any, thereof.
(u) Set forth on Schedule 5.01(u) hereto is a complete and accurate
list of all United States and, to the extent available, all foreign
patents, trademarks, trade names, service marks and copyrights, and all
licenses thereof, of each Loan Party or any of its Subsidiaries (other
than Foreign Subsidiaries) on the date hereof, showing as of the date
hereof the jurisdiction in which registered, the registration number, the
date of registration and the expiration date.
47
ARTICLE VI
COVENANTS
Section 6.01 Affirmative Covenants. Until the Debt Termination Date, each
respective Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither USI nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Liens
resulting therefrom attaches to its property and become enforceable
against its other creditors in an aggregate amount in excess of
$10,000,000.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew, and cause
each of its Subsidiaries to obtain and renew, all Environmental Permits
necessary for its operations and properties; and conduct, and cause each
of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, however, that neither USI nor any of its Subsidiaries shall be
required to undertake any such cleanup, removal, remedial or other action
to the extent that its obligation to do so is being contested in good
faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances, or to the extent failure to
do so could not reasonably be expected to have a Material Adverse Effect.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance including, without limitation,
business interruption insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which USI or such
Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory),
and material permits, licenses, approvals, privileges and franchises;
provided, however, that USI and its Subsidiaries may (i) consummate any
merger or consolidation permitted under Section 6.02(d) and (ii) with
respect to any Immaterial Subsidiary, consummate the liquidation or
dissolution of such Immaterial Subsidiary as permitted under Section
6.02(d)(iv), and provided further that neither USI nor any of its
Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of USI or such
Subsidiary shall determine that the
48
preservation thereof is no longer desirable in the conduct of the business
of USI or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to USI, such Subsidiary or
the Banks.
(f) Visitation Rights. At any reasonable time and from time to time,
permit the Debt Coordinator or any of the Banks, or the Debt Coordinators
or representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of, USI
and any of its Subsidiaries, and to discuss the affairs, finances and
accounts of USI and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants, subject
to reasonable prior notice and customary confidentiality undertakings.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of USI and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Transaction Documents with any of their Affiliates on terms that are fair
and reasonable and no materially less favorable to USI or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate other than any transaction between (1) a Shared
Collateral Loan Party and another Shared Collateral Loan Party, (2) a
Non-Shared Collateral Loan Party and another Non-Shared Collateral Loan
Party and (3) a Foreign Subsidiary and another Foreign Subsidiary.
(j) Covenant to Guarantee Obligations and Give Security. Upon (x) the
request of the Debt Coordinator following (1) the occurrence and
continuance of an Event of Default or (2) the determination by the
Steering Committee, after consultation with USI, that the benefits to the
Banks of additional grants of Collateral in respect of any Foreign
Subsidiary exceed any adverse tax consequences that the granting of such
Collateral may have on USI and its Subsidiaries, in each case provided
that the consummation of such request would neither contravene nor be
ineffective under applicable law (each, a "Trigger Event"), (y) the
formation or acquisition of any new direct or indirect Subsidiaries by any
Loan Party or any Loan Party becoming a Non-Shared Collateral Loan Party
or (z) the acquisition of any property by any Loan Party, and such
property shall not already be subject to a perfected first priority
security interest in favor of the Collateral Trustees for the benefit of
the Secured Holders, then in each case, subject to the rights of the
Rexair Agents and the Rexair Lenders and the obligations of each Rexair
Obligor under Section 8.12 of the Rexair Credit Agreement, at USI's
expense:
(i) in connection with any Subsidiary becoming a Non-Shared
Collateral Loan Party, cause each such Subsidiary to duly execute and
deliver a Non-Shared Guaranty or a supplement thereto in the form
attached thereto within 10 days after such event,
(ii) within 30 days after such request, formation or
acquisition, furnish to the Collateral Trustees a description of the
real and personal properties of the Loan
49
Parties and their respective Subsidiaries in detail reasonably
satisfactory to the Debt Coordinator,
(iii) within 45 days (or such greater period as the Debt
Coordinator, in its sole discretion, may agree) after such request,
formation or acquisition, duly execute and deliver, and cause each
such Subsidiary and each direct and indirect parent of such
Subsidiary (if it has not already done so) to duly execute and
deliver, to the Collateral Trustees mortgages, pledges, assignments,
security agreement supplements, intellectual property security
agreement supplements and other security agreements, as specified by
and in form and substance satisfactory to the Debt Coordinator,
securing payment of all the Obligations of such Subsidiary, parent or
the applicable Loan Party, as the case may be, under the Amendment
Documents and Credit Documents and constituting Liens on all such
properties,
(iv) within 60 days (or such greater period as the Debt
Coordinator, in its sole discretion, may agree) after such request,
formation or acquisition, take, and cause each such and each direct
or indirect Subsidiary or such parent to take, whatever action
(including, without limitation, the recording of mortgages, the
filing of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Debt Coordinator to vest
in the Collateral Trustees (or in any representative of the
Collateral Trustees designated by them) valid and subsisting Liens on
the properties purported to be subject to the mortgages, pledges,
assignments, security agreement supplements, intellectual property
security agreement supplements and security agreements delivered
pursuant to this Section 6.01(j), enforceable against all third
parties in accordance with their terms,
(v) within 60 days after such request, formation or acquisition,
deliver to the Collateral Trustees, upon the request of the Debt
Coordinator in its sole discretion, a signed copy of a favorable
opinion, addressed to the Collateral Trustees and the other Secured
Holders, of counsel for the Loan Parties acceptable to the Debt
Coordinator as to the matters contained in clauses (i), (iii) and
(iv) above, as to such guaranties, guaranty supplements, mortgages,
pledges, assignments, security agreement supplements, intellectual
property security agreement supplements and security agreements being
legal, valid and binding obligations of each Loan Party party thereto
enforceable in accordance with their terms, as to the matters
contained in clause (iv) above, as to such recordings, filings,
notices, endorsements and other actions being sufficient to create
valid perfected Liens on such properties, and as to such other
matters as the Debt Coordinator may reasonably request,
(vi) as promptly as practicable after such request, formation or
acquisition, deliver, upon the request of the Debt Coordinator in its
sole discretion, to the Collateral Trustees with respect to each
parcel of real property owned or held by the entity that is the
subject of such request, formation or acquisition, title reports and
surveys, each in scope, form and substance satisfactory to the Debt
Coordinator, provided, however, that to the extent that any Loan
Party or any of its Subsidiaries shall have otherwise received any of
the foregoing items with respect to such real property, such items
shall, promptly after the receipt thereof, be delivered to the
Collateral Trustees,
(vii) upon the occurrence and during the continuance of a
Default, promptly cause to be deposited any and all cash dividends
paid or payable to it or any of its
50
Subsidiaries from any of its Subsidiaries from time to time into the
USI Collateral Account, and, with respect to all other dividends paid
or payable to it or any of its Subsidiaries from time to time,
promptly execute and deliver, or cause such Subsidiary to promptly
execute and deliver, as the case may be, any and all further
instruments and take or cause such Subsidiary to take, as the case
may be, all such other action as the Debt Coordinator may deem
necessary or desirable in order to obtain and maintain from and after
the time such dividend is paid or payable, a perfected, first
priority lien on and security interest in such dividends, and
(viii) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Debt Coordinator may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and
preserving the Liens of, such guaranties, mortgages, pledges,
assignments, security agreement supplements, intellectual property
security agreement supplements and security agreements,
provided that, unless a Trigger Event shall have occurred, neither USI nor
any other Loan Party shall be required to take, or cause any of its
Subsidiaries (including, without limitation, any Foreign Loan Party) to
take, any action described in this Section 6.01(j) (i) with respect to any
Foreign Subsidiary (except any actions necessary or desirable in the
opinion of the Debt Coordinator to vest in the Collateral Trustees a valid
and perfected first-priority Lien on 65% of the capital stock or other
Equity Interests of any Foreign Subsidiary (other than any Subsidiary
having assets with a fair market value of $50,000 or less (each, an
"Immaterial Subsidiary")) held by USI or a Subsidiary that is not a
Foreign Subsidiary), (ii) with respect to any Immaterial Subsidiary or
(iii) with respect to any interest in real property having a fair market
value of $25,000 or less, and in no event will any Foreign Loan Party be
required to take any such action to the extent prohibited by applicable
laws or agreements or instruments under which Debt permitted by Section
6.02(b) (and subject to Section 6.02(m)) has been incurred.
(k) Further Assurances. (i) Promptly upon request by any Bank through
the Debt Coordinator, correct, and cause each of its Subsidiaries promptly
to correct, any material defect or error that may be discovered in the
existing content of any Transaction Document or in the execution,
acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by any Bank through the Debt Coordinator,
do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust, trust deeds,
assignments, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and
other instruments as any Bank, through the Debt Coordinator, may
reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Transaction Documents, (B) to the fullest
extent permitted by applicable law, subject any Loan Party's or any of its
Subsidiaries' properties, assets, rights or interests to the Liens now or
hereafter intended to be covered by any of the Collateral Documents, (C)
perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents and any of the Liens intended to be created
thereunder and (D) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Holders the rights
granted or now or hereafter intended to be granted to the Secured Holders
under any Transaction Document or under any other instrument executed in
connection with any Transaction Document to which any Loan Party or any of
its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.
51
(l) Preparation of Environmental Reports. At the request of the Debt
Coordinator from time to time after receipt of a notice of the type
specified in Section 6.03(o), provide counsel to the Debt Coordinator
within 60 days after such request, at the expense of USI, an environmental
site assessment report for any of its or its Subsidiaries' properties
described in such request, prepared by an environmental consulting firm
acceptable to the Debt Coordinator, indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such
properties; without limiting the generality of the foregoing, if the Debt
Coordinator determines at any time that a material risk exists that any
such report will not be provided within the time referred to above, the
Debt Coordinator may retain an environmental consulting firm to prepare
such report at the expense of USI, and USI hereby grants and agrees to
cause any Subsidiary that owns any property described in such request to
grant at the time of such request to the Debt Coordinator, the Banks, such
firm and the Debt Coordinators or representatives thereof an irrevocable
non-exclusive license, subject to the rights of tenants, to enter onto
their respective properties to undertake such an assessment.
(m) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which USI or any of its Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or
cancelled, notify the Debt Coordinator of any default by any party with
respect to such leases and cooperate with the Debt Coordinator in all
respects to cure any such default, and cause each of its Subsidiaries to
do so, except, in any case, where the failure to do so, either
individually or in the aggregate, could not be reasonably likely to have a
Material Adverse Effect.
(n) Liquid Assets. Maintain, and cause each of its Subsidiaries
(other than Foreign Subsidiaries or Foreign Loan Parties) to maintain,
deposit accounts only with banks, and security entitlements and financial
assets constituting Cash Equivalents only with securities intermediaries,
acceptable to the Debt Coordinator that have entered into a Control
Agreement that specifically lists each such account, security entitlement
and financial asset (in each case, a "Permitted Account Bank"); provided
that USI and its Subsidiaries shall be permitted to maintain deposit
accounts and security entitlements and financial assets constituting Cash
Equivalents (collectively, "Liquid Assets") with institutions located in
the United States other than Permitted Account Banks so long as the
aggregate amount of Liquid Assets does not exceed $3,500,000 at any time;
provided further that USI and its Subsidiaries shall in no event hold more
than $15,000,000 in the aggregate at any time in Liquid Assets maintained
with institutions located in Canada other than Permitted Account Banks;
and provided further that USI and its Subsidiaries shall in no event hold
more than $20,000,000 in the aggregate at any time in Liquid Assets
maintained with institutions located outside of the United States and
Canada other than Permitted Account Banks.
(o) Use of Proceeds. Use the proceeds of any borrowing or other
credit extension under any Bank Facility solely in accordance with the
provisions of Section 3.01 and Section 4.04.
(p) End of Fiscal Years; Fiscal Quarters. USI will cause (i) each of
its, and each of its Subsidiaries', Fiscal Years to end on the Saturday
closest to the last day in September of each year and (ii) its Fiscal
Quarters to end in a manner consistent therewith (on a 52/53 week basis).
52
(q) Mandatory Interest Rate Protection for Rexair. For the period
ending no earlier than the second anniversary of the Initial Borrowing
Date (as defined in the Rexair Credit Agreement), Rexair shall maintain at
all times, Hedge Agreements with an Approved Person reasonably acceptable
to the Rexair Agent, establishing a fixed or maximum interest rate
acceptable to the Rexair Agent for an aggregate amount of at least 50% of
the aggregate principal amount of Rexair Bank Exposure outstanding on the
Initial Borrowing Date, after giving effect to the Transaction (as defined
in the Rexair Credit Agreement), with all such Hedge Agreements to conform
to the provisions of Section 6.02(b)(i)(A).
(r) Rexair Negative Covenant Compliance. Each Rexair Obligor shall
keep, observe and comply, at all times, with the covenants set forth in
Schedule III hereto.
(s) Reimbursement. Until a Rexair Event occurs, if either USI or any
of its Subsidiaries (other than a Rexair Obligor) on the one hand or any
Rexair Obligor on the other hand is required, in compliance with any
statutory obligation, to provide funds for the payment of an obligation of
the other, the Obligor that has received the benefit of such payment shall
promptly and fully reimburse the Obligor that made such payment.
Section 6.02 Negative Covenants. Until the Debt Termination Date, each
Loan Party agrees that it will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code or similar statute of any jurisdiction, a financing
statement or equivalent filing or registration in any jurisdiction outside
of the United States that names USI or any of its Subsidiaries as debtor,
or sign or suffer to exist, or permit any of its Subsidiaries to sign or
suffer to exist, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any of
its Subsidiaries to assign, any accounts, payment intangibles, chattel
paper or other right to receive income, except:
(i) Liens under or in respect of the Transaction Documents;
(ii) Permitted Liens;
(iii) other Liens existing on the date hereof and described on
Schedule 5.01(p) hereto;
(iv) purchase money Liens upon or in fixed assets acquired or
held by USI or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such property or equipment
or to secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property or
equipment to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not secure
the purchase price), or extensions, renewals or replacements of any
of the foregoing for the same or a lesser amount; provided, however,
that no such Lien shall extend to or cover any property other than
the property or equipment being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to or
cover any property not theretofore
53
subject to the Lien being extended, renewed or replaced; and provided
further that the aggregate principal amount of the Debt secured by
Liens permitted by this clause (iv) shall not exceed the amount
permitted under Section 6.02(b)(iv)(B) at any time outstanding;
(v) Liens arising in connection with (and securing only Debt
arising under) Capitalized Leases permitted under Section
6.02(b)(iv)(C); provided that no such Lien shall extend to or cover
any Collateral or assets other than the assets subject to such
Capitalized Leases;
(vi) any interest or title of a lessor, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to leases permitted by
the Transaction Documents;
(vii) Liens securing Debt of Foreign Subsidiaries permitted to
be incurred under the terms of the Amendment Documents and the Credit
Documents;
(viii) Liens, other than in favor of the PBGC, arising out of
judgments or awards in respect of which USI or any of its
Subsidiaries shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which it shall have secured
a subsisting stay of execution pending such appeal or proceedings for
review, provided it shall have set aside on its books adequate
reserves, in accordance with GAAP, with respect to such judgment or
award and provided further that the aggregate amount secured by such
Liens does not exceed $10,000,000 in the aggregate as measured from
the Prior Effective Date;
(ix) Liens on assets subject to any escrow arrangement entered
into in connection with any disposition of assets permitted under
Section 6.02(e);
(x) the replacement, extension or renewal of any Lien permitted
by clause (iii) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor)
of the Debt secured thereby;
(xi) any financing statement under the Uniform Commercial Code
or security agreement filed or executed in respect of any of the
foregoing; and
(xii) Liens and amounts escrowed in connection with USI's
employee retention program in an amount not to exceed $16,000,000 in
the aggregate as measured from the Prior Effective Date.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of USI and its Subsidiaries, Debt in respect of
Hedge Agreements (A) designed to hedge against fluctuations in
interest rates or foreign exchange rates incurred in the ordinary
course of business and consistent with prudent business practice with
the aggregate Agreement Value thereof not to exceed $15,000,000 at
any time outstanding in the case of interest rate ▇▇▇▇▇▇ (excluding
for purposes of this calculation Hedge Agreements entered into in
order to comply with Section 6.01(q)) and an aggregate notional
amount not to exceed $20,000,000 at any
54
time outstanding in the case of foreign exchange rate ▇▇▇▇▇▇
(excluding for purposes of this amount Hedge Agreements entered into
in reasonable anticipation of the consummation of an Asset
Disposition) and (B) with respect to commodity hedging entered into
in the ordinary course of business consistent with past practice and
in compliance with Section 6.02(o),
(ii) in the case of any Loan Party (A) that is a Shared
Collateral Loan Party, Debt owed to another Shared Collateral Loan
Party and (B) that is a Non-Shared Collateral Loan Party, Debt owed
to another Non-Shared Collateral Loan Party, provided that, in each
case, such Debt (x) shall be evidenced by promissory notes in form
and substance satisfactory to the Debt Coordinator and (y) shall
constitute Pledged Debt and be pledged as security for the
Obligations under the Senior Debt or Bank Debt, as applicable, and
delivered to the Collateral Trustees pursuant to the terms of the
Pledge and Security Agreement,
(iii) in the case of any Foreign Subsidiary, Debt owed to (x)
any other Foreign Subsidiary, (y) USI or any other Subsidiary of USI
(subject to the limitations set forth in Section 6.02(f)) or (z) any
other Person, so long as such Debt is either (1) Surviving Debt
(whether or not funded) and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, such Surviving Debt
that meets the requirements set forth in the first two provisos of
clause (iv)(D) below, or (2) other Debt in an aggregate principal or
face amount owed by all Foreign Subsidiaries to all such other
Persons not to exceed $10,000,000 at any time, and
(iv) in the case of any Loan Party,
(A) Debt under the Transaction Documents,
(B) Debt secured by Liens permitted by Section 6.02(a)(iv)
not to exceed in the aggregate for all Loan Parties $10,000,000
at any time outstanding,
(C) Capitalized Leases not to exceed in the aggregate for
all Loan Parties $10,000,000 at any time outstanding,
(D) the Surviving Debt, and any Debt extending the maturity
of, or refunding or refinancing, in whole or in part, any
Surviving Debt, provided that the terms of any such extending,
refunding or refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith, are
otherwise permitted by the Amendment Documents and the Credit
Documents, provided further that the principal amount of such
Surviving Debt shall not be increased above the maximum
principal amount permitted to be incurred under the commitment
thereof immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor
shall not be changed, as a result of or in connection with such
extension, refunding or refinancing, provided still further that
the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other
material terms taken as a whole, of any such extending,
refunding or refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith, are no
less favorable in any material respect to the Loan Parties or
the Banks than the terms of any agreement or instrument
55
governing the Surviving Debt being extended, refunded or
refinanced and the interest rate applicable to any such
extending, refunding or refinancing Debt does not exceed the
then applicable market interest rate,
(E) Debt owed to Foreign Subsidiaries, provided that (i)
such Debt shall be subordinated, on terms satisfactory to the
Debt Coordinator, to all Bank Debt and (ii) unless such Debt is
Debt of a Non-Shared Collateral Loan Party, the proceeds of such
Debt shall be applied concurrently to prepay revolving credit or
swingline borrowings (without any required commitment reduction)
under the USI Credit Agreement, and
(F) Debt owed to Foreign Loan Parties, provided that such
Debt shall be subordinated, on terms satisfactory to the Debt
Coordinator, to all Bank Debt.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do so,
except that:
(i) any Shared Collateral Loan Party may merge into or
consolidate with any other Shared Collateral Loan Party, provided
that (A) in the case of any such merger or consolidation to which USI
is a party, USI shall be the survivor thereof, (B) in the case of any
such merger or consolidation to which USI is not a party, the Person
formed by such merger or consolidation shall be a wholly owned
Subsidiary of USI and (C) in the case of any such merger or
consolidation to which a Guarantor is a party, the Person formed by
such merger or consolidation shall be a Guarantor;
(ii) any Foreign Subsidiary may merge into or consolidate with
(A) any other Foreign Subsidiary or (B) any Non-Shared Collateral
Loan Party that was a Foreign Subsidiary prior to becoming a
Non-Shared Collateral Loan Party, provided that the Person formed by
such merger or consolidation shall be a Non-Shared Collateral Loan
Party;
(iii) any Non-Shared Collateral Loan Party may merge into or
consolidate with any other Non-Shared Collateral Loan Party, provided
that the Person formed by such merger or consolidation shall be a
Non-Shared Collateral Loan Party and a guarantor under a Non-Shared
Guaranty;
(iv) any Immaterial Subsidiary may liquidate all or
substantially all of its assets or dissolve at any time, provided
that the assets of such Immaterial Subsidiary shall be transferred to
its direct parent upon such liquidation or dissolution; and
(v) in addition to any merger or consolidation permitted by the
foregoing clauses, any Subsidiary of USI may merge with any Person in
order to consummate any Asset Disposition permitted by Section
6.02(e)(iv) and consummated in accordance therewith and subject to
the conditions set forth therein, provided that such merger or
consolidation shall occur concurrently with such Asset Disposition
and, as a result thereof, the Subsidiary of USI party to such merger
or consolidation shall cease to be a Subsidiary of USI;
56
provided, however, that in each case, immediately before and after giving
effect thereto, no Default shall have occurred and be continuing other
than, in the case of clause (iv), a Default that shall be and is fully
cured by the related Asset Disposition and the application of the Net Cash
Proceeds thereof.
(e) Sales of Assets; Etc. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets, except:
(i) sales of Inventory in the ordinary course of its business;
(ii) sales of obsolete Equipment having an aggregate book value
for all Loan Parties not to exceed $500,000 in the aggregate as
measured from the Prior Effective Date, and $100,000 in any single
disposition;
(iii) in a transaction authorized by Section 6.02(d);
(iv) the sale or lease of any asset by USI or by any
Subsidiary to any Person that is not a Loan Party (other than
(1) a bulk sale of Inventory and (2) any sale of Receivables
other than delinquent accounts for collection purposes only,
each, a "USI Asset Disposition") so long as (A) the purchase
price for such asset shall be no less than fair market value and
shall not involve excessive transaction costs or indemnification
obligations that are not usual in scope or type, (B) except for
reasonable and customary amounts to be escrowed pursuant to the
applicable sale agreements, 100% of the net proceeds shall be
paid at closing in immediately available U.S. Dollars (or
readily convertible currencies) and (C) no Default shall exist
and be continuing both before and after giving effect thereto,
other than a Default that shall be and is fully cured by such
Asset Disposition and the application of the Net Cash Proceeds
thereof; and
(v) the sale, lease or transfer of any asset in connection
with an Investment permitted under clause (ii) or (iii) of
subsection (f) below.
provided that in transactions referred to in clause (ii) or (iv) above,
the appropriate Loan Party shall apply the Net Cash Proceeds of such
transaction as set forth in Section 3.05.
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person, except:
(i) equity Investments by USI and its Subsidiaries in their
Subsidiaries outstanding on the date hereof;
(ii) (A) Investments by Shared Collateral Loan Parties in
Non-Shared Collateral Loan Parties (unless such Investment would
result on the next date of determination in any such Non-Shared
Collateral Loan Party becoming a Shared Collateral Loan Party) or in
other Shared Collateral Loan Parties, (B) Investments (1) by
Non-Shared Collateral Loan Parties in Shared Collateral Loan Parties
in an aggregate amount not to exceed $15,000,000 as measured from the
Prior Effective Date plus any loans or advances the proceeds of which
are applied concurrently to prepay USI Term Exposure, revolving
credit or swingline borrowings (without any required commitment
reduction) under the USI Credit Agreement or (2) in other Non-Shared
Collateral Loan Parties, provided that no such Investment shall be
permitted if, alone or
57
in aggregate with other such Investments, it shall cause a Non-Shared
Collateral Loan Party to become a Shared Collateral Loan Party, and
(C) Investments by Loan Parties in Foreign Subsidiaries in an
aggregate amount not to exceed at any time the aggregate amount of
Investments in Loan Parties made on or after the Prior Effective Date
and permitted under clause (iii) below, plus the aggregate amount of
cash dividends paid by Foreign Subsidiaries to Loan Parties on and
after the Prior Effective Date and permitted under Section
6.02(g)(ii), provided that Investments by Non-Shared Collateral Loan
Parties permitted under this clause (ii)(C) shall not be in an
aggregate amount in excess of the portion of the amount of Foreign
Subsidiary Investments and dividends referred to above in this clause
(ii)(C) actually received by the Non-Shared Collateral Loan Parties;
(iii) Investments by Foreign Subsidiaries in Loan Parties and in
other Foreign Subsidiaries, provided that any such Investment in a
Loan Party that is or will constitute Debt of such Loan Party shall
be subject to Section 6.02(b)(iv)(E);
(iv) loans and advances to employees in the ordinary course of
business of USI and its Subsidiaries as presently conducted
(excluding travel and other similar business advances) outstanding as
of the date hereof and additional such loans and advances not to
exceed $2,500,000 in aggregate principal amount at any time
outstanding;
(v) Investments by USI and its Subsidiaries in Cash Equivalents
permitted in accordance with Section 6.01(n);
(vi) Investments (other than in Subsidiaries) existing on the
date hereof and described on Schedule 5.01(t) hereto;
(vii) Investments by USI and its Subsidiaries in Hedge
Agreements permitted under Section 6.02(b)(i)(A);
(viii) Investments consisting of intercompany Debt permitted
under Section 6.02(b) or transactions permitted by Section 6.02(g);
(ix) Investments consisting of mergers and consolidations
permitted by Section 6.02(d);
(x) Investments consisting of (x) the creation of one or more
new Subsidiaries and (y) the contribution by USI or its then existing
Subsidiaries to any of such new Subsidiaries of any assets, in each
case, in order to consummate any Asset Disposition permitted by
Section 6.02(e)(iv), provided that any assets so contributed are
disposed of upon the consummation of such Asset Disposition and such
Asset Disposition is consummated in accordance with, and subject to
the conditions set forth in, such section;
(xi) Investments consisting of Capital Expenditures permitted by
Section 6.02(p);
(xii) Investments not otherwise permitted by the foregoing
clauses in an aggregate amount not to exceed $2,000,000 as measured
from the Prior Effective Date; and
58
(xiii) the USI Global Contribution.
(g) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such or issue or sell any Equity Interests or accept
any capital contributions, or permit any of its Subsidiaries to do any of
the foregoing, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any Equity Interests in USI
or to issue or sell any Equity Interests therein, except that, so long as
no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom:
(i) USI may declare and pay dividends and distributions payable
only in common stock of USI, and
(ii) Subsidiaries of USI may (A)(1) if any such Subsidiary is a
Foreign Subsidiary, declare and pay cash dividends and (2) if any
such Subsidiary is a Loan Party, declare and pay cash dividends to
another Loan Party, provided that cash dividends declared and paid by
all Subsidiaries that are not Shared Collateral Loan Parties to
Shared Collateral Loan Parties shall not exceed in the aggregate
$30,000,000, and provided further that, in the case of cash dividends
paid to any Non-Shared Collateral Loan Party under this clause (ii),
the aggregate amount of such cash dividends shall be permitted only
to the extent that the receipt of such cash dividends by such
Non-Shared Collateral Loan Party will not result on the next date for
determination in such Non-Shared Collateral Loan Party becoming a
Shared Collateral Loan Party and (B) accept capital contributions
from a parent to the extent permitted under Section 6.02(f).
(h) Operating Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee under any operating lease (i)
unless such lease is entered into in the ordinary course of business
consistent with past practices and (ii) the direct and contingent
liabilities of USI and its Subsidiaries in respect of such lease will not
exceed $1,000,000 payable in any period of 12 consecutive months.
(i) Amendments of Constitutive Documents. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws or other
constitutive documents, except to the extent that such amendment could not
have a Material Adverse Effect.
(j) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles.
(k) Prepayments of Debt, Etc. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms of, any Debt,
except (i) the prepayment of the Senior Debt Exposure in accordance with
the terms of this Agreement and (ii) regularly scheduled or required
repayments or redemptions of Surviving Debt, or amend, modify or change in
any manner adverse to the Banks any term or condition of any Surviving
Debt, or permit any of its Subsidiaries (other than Foreign Subsidiaries)
to do any of the foregoing other than to prepay
59
any Debt payable to USI or any other Loan Party or Debt described in
Sections 6.02(b)(iv)(B) and 6.02(b)(iv)(C) payable upon the disposition
(whether voluntary or involuntary) of the assets financed thereby;
provided, however, that except as expressly provided under the terms of
this Agreement, including as permitted in connection with the Exchange
Offer, USI will not make any optional prepayments or reductions, including
any optional Permanent Reductions of obligations under the Notes while any
Senior Debt Exposure remains outstanding under the Bank Facilities, and
any such permitted "prepayment" or reduction shall be made solely by the
deposit of funds into the Notes Escrow Account or by the application of
operating cash flow to and payment at maturity of the Remaining Notes in
accordance with the terms thereof.
(l) Amendment of Note Documents, Etc. Except as permitted in
connection with the Exchange Offer, amend, modify or change in any manner
any term or condition of any Note Document, agree in any manner to any
other amendment, modification or change of any term or condition of any
Note Document or take any other action in connection with any Note
Document that would impair the value of the interest or rights of any Loan
Party thereunder or that would impair the rights or interests of the Debt
Coordinator or any Bank, or permit any of its Subsidiaries to do any of
the foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets except (i) in favor of the Secured Holders
or, in the case of an Unrestricted Subsidiary (as defined in the Notes),
the Banks, or (ii) in connection with (A) any Surviving Debt, (B) any
purchase money Debt permitted by Section 6.02(b)(iv)(B) solely to the
extent that the agreement or instrument governing such Debt prohibits a
Lien on the property acquired with the proceeds of such Debt, (C) any
Capitalized Lease permitted by Section 6.02(b)(iv)(C) solely to the extent
that such Capitalized Lease prohibits a Lien on the property subject
thereto, (D) any Debt outstanding on the date any Subsidiary of USI
becomes such a Subsidiary (so long as such agreement was not entered into
solely in contemplation of such Subsidiary becoming a Subsidiary of USI)
or (E) any Debt of any Foreign Subsidiary (so long as any such agreement
or instrument applies only to the capital stock and assets of such Foreign
Subsidiary and its Subsidiaries).
(n) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries to
do so.
(o) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts for speculative purposes or any similar speculative
transactions.
(p) Capital Expenditures. Make, or permit any of its Subsidiaries
(other than the Rexair Obligors) to make, any Capital Expenditures that
would cause the aggregate of all such Capital Expenditures made by USI and
each other Loan Party, as at the end of each Fiscal Quarter of USI set
forth below to exceed:
(i) prior to the Initial Maturity Date, on a cumulative basis,
the amount set forth below for each such Fiscal Quarter of USI:
Fiscal Quarter ended: Maximum Capital Expenditures
--------------------- ----------------------------
December 28, 2002 $10,000,000
March 29, 2003 $14,000,000
June 28, 2003 $16,000,000
September 27, 2003 $19,000,000
60
(ii) if the Maturity Extension shall have occurred on or prior
to the Initial Maturity Date, on a cumulative basis, the amount set
forth below for each such Fiscal Quarter of USI following the Initial
Maturity Date:
December 27, 2003 $ 7,000,000
March 27, 2004 $13,000,000
June 26, 2004 $19,000,000
September 25, 2004 $24,000,000
provided that the permitted amount of Capital Expenditures shall be
adjusted in connection with the sale or other disposition of any Principal
Business Unit by deducting from such amount the cumulative amount
attributable to such Principal Business Unit on Schedule 6.02(p) under the
heading "Adjustment Grid" commencing in the month in which such Principal
Business Unit is sold.
(q) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its Equity Interests or
repay or prepay any Debt owed to, make Loans or advances to, or otherwise
transfer assets to or invest in, USI or any Subsidiary of USI (whether
through a covenant restricting dividends, Loans, asset transfers or
investments, a financial covenant or otherwise), except (i) the
Transaction Documents, (ii) any agreement, instrument or arrangement
evidencing Surviving Debt, (iii) any agreement or arrangement in effect at
the time such Subsidiary becomes a Subsidiary of USI, so long as such
agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of USI, (iv) any agreement or arrangement applicable
to any Foreign Subsidiary and consisting of customary covenants contained
in agreements under which Debt may be incurred and (v) any agreement or
arrangement governing the terms of any proposed Asset Disposition
permitted under Section 6.02(e)(iv), so long as the restrictions contained
therein are applicable solely in respect of Subsidiaries party to such
Asset Disposition and solely until such Asset Disposition is consummated.
(r) Rexair Restrictions. Notwithstanding anything to the contrary
contained in this Section 6.02 until a Rexair Event has occurred, no
Rexair Obligor shall be permitted to, or permit any of its Subsidiaries
to, (i) incur any Debt in favor of any other Loan Party, (ii) merge into
or consolidate with any other Loan Party, (iii) make any Investment in any
other Loan Party or (iv) make any payment or other distribution to any
other Loan Party in respect of Equity Interests of such Rexair Obligor
held by such Loan Party.
Section 6.03 Reporting Requirements. Until the Debt Termination Date, USI
will furnish to the Debt Coordinator and the Banks:
(a) Default Notice. As soon as possible and in any event within two
days after the occurrence of each Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect continuing
on the date of such statement, a statement of the Chief Financial Officer
of USI setting forth details of such Default and the action that USI has
taken and proposes to take with respect thereto.
61
(b) Annual Financials. As soon as available and in any event within
90 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for USI and its Subsidiaries, including therein
Consolidated and consolidating balance sheets of USI and its Subsidiaries
as of the end of such Fiscal Year and Consolidated and consolidating
statements of income and a Consolidated statement of cash flows of USI and
its Subsidiaries for such Fiscal Year, in each case accompanied by an
opinion acceptable to the Steering Committee Majority of Ernst & Young LLP
or other independent public accountants of recognized standing acceptable
to the Steering Committee Majority, together with (i) a certificate of
such accounting firm to the Banks stating that in the course of the
regular audit of the business of USI and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement as
to the nature thereof, (ii) a schedule in form satisfactory to the Debt
Coordinator of the computations used by such accountants in determining,
as of the end of such Fiscal Year, compliance with the covenants contained
in Section 6.04, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such financial
statements, USI shall also provide, if necessary for the determination of
compliance with Section 6.04, a statement of reconciliation conforming
such financial statements to GAAP and (iii) a certificate of the Chief
Financial Officer of USI stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that USI has taken and proposes to
take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event
within 45 days after the end of each of the first three quarters of each
Fiscal Year, Consolidated and consolidating balance sheets of USI and its
Subsidiaries as of the end of such quarter and Consolidated and
consolidating statements of income and a Consolidated statement of cash
flows of USI and its Subsidiaries for the period commencing at the end of
the previous fiscal quarter and ending with the end of such fiscal quarter
and Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of USI and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the
preceding Fiscal Year, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by the Chief Financial
Officer of USI as having been prepared in accordance with GAAP, together
with (i) a certificate of said officer stating that no Default has
occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that USI
has taken and proposes to take with respect thereto and (ii) a schedule in
form satisfactory to the Debt Coordinator of the computations used by USI
in determining compliance with the covenants contained in Section 6.04,
provided that in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements, USI shall
also provide, if necessary for the determination of compliance with
Section 6.04, a statement of reconciliation conforming such financial
statements to GAAP.
(d) Monthly Financials. As soon as available and in any event within
21 days after each monthly reporting period, a Consolidated balance sheet,
Consolidated income statement and Consolidated cash flow statement for USI
and its Subsidiaries as well as consolidating balance sheets, income
statements and cash flows, each prepared in accordance with GAAP for the
month and year-to-date periods then ended, including by each Principal
Business Unit. All such financial statements shall include comparisons to
both budget as well as to prior year, with management discussion provided
for significant deviations from budget and prior year, significant
operating trends, working capital analysis including days' sales
outstanding,
62
accounts receivable aging, potential problem accounts receivable and
potential inventory obsolescence issues, and certified (in form and
substance reasonably acceptable to the Debt Coordinator) by the chief
financial officer, treasurer or chief accounting officer of USI, which
information shall be in addition to, and not in limitation of, any other
information or reporting requirements contained in this Agreement, the
Credit Agreements and any other Transaction Document.
(e) 13-Week Cash Flow Reports. (i) As soon as available and in any
event no later than the third Business Day following the Friday of the
report week then ended, USI and its Subsidiaries shall provide to the Debt
Coordinator, the Financial Advisor and each Bank a weekly statement of
consolidated and consolidating cash flows for the immediately preceding
week and as projected for the 13 weeks then commencing, substantially in
the form of Exhibit C hereto, and applying procedures consistent with
those agreed to among USI and the Financial Advisor (each, a "Weekly Cash
Flow Report"). Explanation of significant changes from the amounts
forecasted the previous week (including a comparison of the actual results
to the forecasted amounts for the previous week) shall be provided.
(f) Annual Forecasts. As soon as available and in any event no later
than 15 days before the end of each Fiscal Year, Consolidated and
consolidating forecasts for USI and its Subsidiaries prepared by
management of USI, in form satisfactory to the Debt Coordinator, of
balance sheets, income statements and cash flow statements on a monthly
basis for the Fiscal Year following such Fiscal Year and on an annual
basis for each Fiscal Year thereafter until the Maturity Date.
(g) Asset Disposition Monitoring; Asset Dispositions. (i) (A) Meet
with each of the Debt Coordinator, the Financial Advisor and each Steering
Committee Member on a monthly basis, and with the Financial Advisor and
counsel to the Debt Coordinator upon reasonable request, to provide them,
on a confidential basis, with a status report on USI's ongoing Asset
Disposition Program and (B) make available members of its senior
management to meet with the Debt Coordinator, the Financial Advisor and
each Steering Committee Member, at such times and at such places
(including by telephone conference call) as the Debt Coordinator may
reasonably request, to discuss in reasonable detail the status of such
Asset Disposition Program and (ii) in connection with any proposed Asset
Disposition permitted under Section 6.02(e)(iv) or under Section 9.02(v)
of the Rexair Credit Agreement, as amended by the Rexair Amendment, with
respect to USI and each Loan Party party to such Asset Disposition,
provide prompt delivery of certified copies of each of the principal
transaction documents executed in connection with such Asset Disposition
to each of the Debt Coordinator and its counsel, the Financial Advisor and
each Steering Committee Member.
(h) Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
Governmental Authority affecting any Loan Party or any of its Subsidiaries
of the type described in Section 5.01(f).
(i) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any
Loan Party or any of its Subsidiaries sends to its stockholders, and
copies of all regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files with the
Securities and Exchange Commission or any Governmental Authority that may
be substituted therefor, or with any national securities exchange.
63
(j) Creditor Reports. Promptly after the furnishing thereof, copies
of any statement or report furnished to any holder of Debt securities of
any Loan Party or of any of its Subsidiaries pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Banks pursuant to any other clause of this Section
6.03.
(k) Agreement Notices. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of
its Subsidiaries under or pursuant to any Transaction Document or
instrument, indenture, loan or credit or similar agreement regarding or
related to any breach or default by any party thereto or any other event
that could materially impair the value of the interests or the rights of
any Loan Party or otherwise have a Material Adverse Effect and copies of
any amendment, modification or waiver of any provision of any Transaction
Document or instrument, indenture, loan or credit or similar agreement
and, from time to time upon request by the Debt Coordinator, such
information and reports regarding the Note Documents and such instruments,
indentures and loan and credit and similar agreements as the Debt
Coordinator may reasonably request.
(l) Revenue Agent Reports. Within 10 days after receipt, copies of
all Revenue Agent Reports (Internal Revenue Service Form 886), or other
written proposals of the Internal Revenue Service, that propose, determine
or otherwise set forth positive adjustments to the Federal income tax
liability of the affiliated group (within the meaning of Section
1504(a)(1) of the Code) of which USI is a member aggregating $5,000,000 or
more.
(m) Tax Certificates. Promptly, and in any event within five Business
Days after the due date (with extensions) for filing the final Federal
income tax return in respect of each taxable year, a certificate (a "Tax
Certificate"), signed by the President or the Chief Financial Officer of
USI, stating that USI has paid to the Internal Revenue Service or other
taxing authority, the full amount that such affiliated group is required
to pay in respect of Federal income tax for such year and that USI and its
Subsidiaries have received any amounts payable to them, and have not paid
amounts in respect of Taxes (Federal, state, local or foreign) in excess
of the amount they are required to pay, in respect of such taxable year.
(n) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in
any event within 10 days after any Loan Party or any ERISA Affiliate knows
or has reason to know that any ERISA Event has occurred, a statement of
the Chief Financial Officer of USI describing such ERISA Event and the
action, if any, that such Loan Party or such ERISA Affiliate has taken and
proposes to take with respect thereto and (B) on the date any records,
documents or other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(ii) Plan Terminations. Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate,
copies of each notice from the PBGC stating its intention to terminate any
Plan or to have a trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event within
five Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal
64
Liability by any such Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (C) the amount of liability incurred, or that may be
incurred, by such Loan Party or any ERISA Affiliate in connection with any
event described in clause (A) or (B).
(o) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(p) Real Property. As soon as available and in any event within 30
days after the end of each Fiscal Year, a report supplementing Schedules
5.01(r) and 5.01(s) hereto, including an identification of all owned and
leased real property disposed of by USI or any of its Subsidiaries during
such Fiscal Year, a list and description (including the street address,
county or other relevant jurisdiction, state, record owner, book value
thereof and, in the case of leases of property, lessor, lessee, expiration
date and annual rental cost thereof) of all real property acquired or
leased during such Fiscal Year and a description of such other changes in
the information included in such Schedules as may be necessary for such
Schedules to be accurate and complete.
(q) Insurance. As soon as available and in any event within 30 days
after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as
the Debt Coordinator, or any Bank through the Debt Coordinator, may
reasonably specify. (r) Asbestos Matters. As soon as available and in any
event within 30 days after the end of each Fiscal Quarter, a report
summarizing each material event or change with respect to asbestos-related
liabilities affecting any Loan Party or any of its Subsidiaries and any
judicial or administrative proceedings in connection therewith.
(s) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
the Debt Coordinator, or any Bank through the Debt Coordinator, may from
time to time reasonably request.
Section 6.04 Financial Covenants. Until the Debt Termination Date, USI
will:
(a) Minimum EBITDA. (i) Maintain as at the end of each Fiscal Quarter
set forth below after the Effective Date and prior to the Initial Maturity
Date cumulative EBITDA of USI and its Subsidiaries (other than the Rexair
Obligors) of not less than the cumulative amount set forth below:
Fiscal Quarter ended Minimum Cumulative EBITDA
-------------------- -------------------------
December 28, 2002 $11,000,000
March 29, 2003 $30,000,000
June 28, 2003 $63,000,000
September 27, 2003 $92,000,000
65
(ii) Maintain after the date of the Maturity Extension, if any,
EBITDA of USI and its Subsidiaries (other than the Rexair Obligors) of not
less than the amount set forth below for the four consecutive Fiscal
Quarters of USI most recently ended:
Period ended Minimum EBITDA
------------ --------------
December 27, 2003 $96,000,000
March 27, 2004 $100,000,000
June 26, 2004 $104,000,000
September 25, 2004 $108,000,000
provided in each case, that minimum EBITDA shall be adjusted in connection
with the sale or other disposition of any Principal Business Unit by
deducting from such amount the cumulative amount attributable to such
Principal Business Unit on Schedule 6.04(a) under the heading "Adjustment
Grid" commencing in the month in which such Principal Business Unit is
sold.
(b) Debt to EBITDA Ratio. (i) Maintain at all times after the
Effective Date and prior to the Initial Maturity Date a Debt/EBITDA Ratio
of not more than the amount set forth below for each period set forth
below:
At any time during Fiscal Quarter ending Ratio
---------------------------------------- -----
December 28, 2002 4.00x
March 29, 2003 4.50x
June 28, 2003 5.25x
September 27, 2003 5.50x
(ii) Maintain at all times after the date of the Maturity Extension,
if any, a Debt/EBITDA Ratio of not more than the amount set forth below
for each period set forth below:
At any time during Fiscal Quarter ending Ratio
---------------------------------------- -----
December 27, 2003 5.25x
March 27, 2004 5.25x
June 26, 2004 5.00x
September 25, 2004 4.50x
(c) Interest Coverage Ratio. (i) Maintain after the Effective Date
and prior to the Initial Maturity Date an Interest Coverage Ratio of not
less than the amount set forth below for each period set forth below:
Fiscal Quarter Ending Ratio
--------------------- -----
December 28, 2002 2.50x
March 29, 2003 2.10x
June 28, 2003 1.80x
September 27, 2003 1.60x
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(ii) Maintain after the date of the Maturity Extension, if any, an
Interest Coverage Ratio of not less than the amount set forth below for
each period set forth below:
Fiscal Quarter Ending Ratio
--------------------- -----
December 27, 2003 1.60x
March 27, 2004 1.60x
June 26, 2004 1.60x
September 25, 2004 1.60x
(d) Minimum Liquidity. Maintain at all times Liquidity of no less
than $25 million.
(e) Rexair Financial Covenants. Each Rexair Obligor shall comply with
the financial covenants contained in Section 9 to the Rexair Credit
Agreement, as amended on the terms set forth on Schedule III to this
Agreement.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01 Events of Default. If any of the following events ("Events of
Default") shall occur under any Credit Document and be continuing:
(a) any Loan Party shall fail to pay (i) any amounts of principal or
of reimbursement of drawings under any Letter of Credit or any amount
under any bankers acceptance, in any case, payable hereunder or under any
Credit Document when due and payable or (ii) any other amount payable
hereunder or under any Credit Document, within one Business Day in the
case of all other amounts; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Transaction Document shall
prove to have been incorrect in any material respect when made or deemed
to have been made; or
(c) any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 3.01, 3.05, 4.04, 6.01(e) (with
respect to corporate existence of USI only), 6.01(f), 6.02, 6.03 or 6.04;
or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Credit Document (to the extent not
superseded and replaced pursuant to Article II hereof) on its part to be
performed or observed if such failure shall remain unremedied for 15
Business Days (i) after written notice thereof shall have been given to
such Loan Party by the Debt Coordinator or (ii) if earlier, after any
Authorized Officer of such Loan Party obtains knowledge thereof; or
(e) (i) any Loan Party or any Material Subsidiary shall fail to pay
any principal of, premium or interest on, or any other amount payable in
respect of any Debt that is outstanding in a principal or reimbursement
amount of at least $5,000,000 in the aggregate; in any case either
individually or in the aggregate of such Loan Party or any Material
Subsidiary, when the same becomes due and payable whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise, and such
failure shall continue after the applicable grace
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period, if any, specified in the agreement or instrument relating to such
Debt; or (ii) any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt as specified in
clause (i) and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Debt as specified in clause (i) or otherwise to cause, or to
permit the holder thereof to cause, such Debt as specified in clause (i)
to mature; or any such Debt as specified in clause (i) shall be declared
to be due and payable or is then required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease
such Debt as specified in clause (i) shall be then required to be made, in
each case prior to the stated maturity thereof; or
(f) any Loan Party or any Material Subsidiary shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Loan Party or any Material Subsidiary seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period
of 45 days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property) shall occur; or any Loan
Party or any Material Subsidiary shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any Loan Party or any Material
Subsidiary and either (A) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (B) there shall
be any period of 15 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect, provided, however, that any judgment or order shall not
give rise to an Event of Default if and for so long as (1) the amount of
such judgment or order which remains unsatisfied is covered by a valid and
binding insurance policy issued by an insurer rated at least "A" by A.M.
Best and covering full payment thereof and (2) such insurer has been
notified, and has not disputed the claim made for payment, of the amount
of such judgment or order; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any Material Subsidiary that could be reasonably likely to
have a Material Adverse Effect, and there shall be any period of 15
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any provision of any Transaction Document, after delivery thereof
pursuant to Section 4.01 or 6.01(j), shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party thereto,
or any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to
Section 4.01 or 6.01(j) shall for any reason (other than pursuant to the
terms thereof or solely as a result of failure by either Collateral
Trustee to possess any such Collateral) cease to create a valid and
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perfected first priority lien on and security interest in any material
portion of the Collateral purported to be covered thereby; or
(k) any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) exceeds $10,000,000; or
(l) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $10,000,000 or requires
payments exceeding $5,000,000 per annum; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $10,000,000; or
(n) a Change of Control shall occur;
then, and in any such event, the Debt Coordinator (i) shall at the request, or
may with the consent, of the Majority Banks, by notice to the Loan Parties,
declare all commitments and Obligations of each Bank hereunder and under the
Bank Facilities to make Loans, issue Letters of Credit or bankers' acceptances
or make other credit extensions (other than reimbursements to other Banks in
respect of Loans and drawn Letters of Credit and bankers' acceptances) to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Majority Banks, (A) by notice to the
Loan Parties, declare all Loans, all interest thereon and all other amounts
payable under the Bank Facilities and the Credit Documents to be forthwith due
and payable, whereupon the Loans, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by all
of the Loan Parties, (B) by notice to each party required under the terms of
any agreement in support of which a Letter of Credit or bankers' acceptance is
issued, request that all Obligations under such agreement be declared to be due
and payable and (C) by notice to each applicable Letter of Credit and bankers'
acceptance issuing bank, direct such issuing bank to deliver a "default
termination notice" (or similar notice) to the beneficiary of each Letter of
Credit or bankers' acceptance issued by it, and such issuing bank shall deliver
such default termination notices (or similar notices); provided that in the
event of an actual or deemed entry of an order for relief with respect to any
Loan Party under the Federal Bankruptcy Code (a "Bankruptcy Event"), (x) the
commitments of each Bank and the obligation of each Bank to make Loans, issue
Letter of Credit, bankers' acceptance or other credit extensions under the Bank
Facilities (other than reimbursements to other Banks in respect of drawn
Letters of Credit and bankers' acceptances) shall automatically be terminated
and (y) all Loans under all Bank Facilities, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by all Loan Parties.
69
Section 7.02 DIP Event. Notwithstanding any acceleration of the maturity
of any Loans and other amounts due under the Bank Facilities and other Credit
Documents pursuant to Section 7.01 hereof, in the event that (i) any USI
Obligor or Rexair Obligor becomes a debtor and debtor-in-possession in a case
pending under Chapter 11 of the U.S. Bankruptcy Code (11 U.S.C. ▇▇.▇▇. 101 et
seq.; the "Bankruptcy Code") and has continued in the possession and in the
management of its business pursuant to Sections 1107 and 1108 of the Bankruptcy
Code (each such event, a "DIP Event") and (ii) all of the Banks under any Bank
Facility shall have notified such Obligor of their intention to waive their
rights arising under Section 7.01(f) of this Agreement and to maintain their
Commitments and other obligations in respect of such Bank Facility, then (x)
the terms and provisions of such Bank Facility (including, without limitation,
the terms and provisions of this Agreement related to such Bank Facility) shall
remain in full force and effect, (y) such Obligor shall take all necessary
steps for the approval of its continuing obligations under such Bank Facility,
including, without limitation, its obligations in respect of Collateral, by the
applicable bankruptcy court and (z) no Bank that is not a party to such Bank
Facility shall take any action to contest the validity or enforceability of
such continuing obligations, it being understood and agreed that no repayment
shall be deemed to have been made with respect to any such Bank Facility as a
result of any applicable Bank's agreement to maintain any such Commitment;
provided that, if a DIP Event occurs in respect of (1) USI, and notice has been
provided to USI by the USI Banks pursuant to clause (ii) above in respect of
the USI Bank Facilities, USI agrees that, except as required by applicable
bankruptcy law, it shall not seek any alternative or supplemental
debtor-in-possession financing without the approval of the Majority Banks under
the USI Bank Facilities and shall, in any event, use its reasonable best
efforts consistent with its fiduciary duties to obtain the approval of the
applicable bankruptcy court to maintain the USI Bank Facilities as its
debtor-in-possession financing having the priority and security customary for
debtor-in-possession financings and (2) Rexair, and notice has been provided to
Rexair by the Rexair Banks pursuant to clause (ii) above in respect of the
Rexair Bank Facilities, Rexair agrees that, except as required by applicable
bankruptcy law, it shall not seek any alternative or supplemental
debtor-in-possession financing without the approval of the Rexair Bank Majority
and shall, in any event, use its reasonable best efforts consistent with its
fiduciary duties to obtain the approval of the applicable bankruptcy court to
maintain the Rexair Bank Facilities as its debtor-in-possession financing
having the priority and security customary for debtor-in-possession financings;
provided further that, in any event, Default Interest shall accrue on any such
Loan in accordance with Section 3.02(g).
ARTICLE VIII
GUARANTIES, COLLATERAL AND CLAIMS
Section 8.01 Guaranties and Liens. Each Loan Party hereby agrees and
covenants that, at all times, all Bank Facilities shall be entitled to the
benefits of and shall benefit equally from each USI Bank Debt Guaranty and the
Collateral, that the Rexair Banks shall be entitled to the benefits of and
shall benefit equally from each Rexair Bank Debt Guaranty and the Rexair
Collateral, and the Banks shall have a Lien on the Rexair Collateral second
only to the Rexair Debt Lien.
Section 8.02 Subrogation and Waiver. (a) Each Loan Party that is a
guarantor under any USI Bank Debt Guaranty (including any Non-Shared Guaranty)
or any Rexair Bank Debt Guaranty (a "Guarantor") or a grantor or pledgor with
respect to any of the Collateral (a "Collateral Grantor") hereby
unconditionally and irrevocably agrees not to exercise any rights that it may
now have or hereafter acquire, as such Guarantor or Collateral Grantor, against
any other Loan Party or any other insider Guarantor or Collateral Grantor that
have arisen or may arise from the existence, payment, performance or
enforcement of such Loan Party's Obligations, as a Guarantor or Collateral
Grantor of the Obligations, under or in respect of any Bank Facility or Credit
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and
70
any right to participate in any claim or remedy of any secured or guaranteed
creditor against any other Loan Party or any other insider Guarantor or
Collateral Grantor or any collateral securing any of the guaranteed or secured
Obligations, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from any other Loan Party or any other insider Guarantor or
Collateral Grantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Bank Exposure shall have been paid
in full in cash, and all Commitments in respect thereof shall have expired or
been terminated, and all Letter of Credit and Secured Hedge Agreements shall
have expired or been terminated (the "Final Payment").
(b) If any amount shall be paid to any Loan Party in violation of Section
8.02(a) at any time prior to the Final Payment, then such amount shall be
received and held in trust for the benefit of the Banks, shall be segregated
from other property and funds of the Loan Parties, and shall forthwith be paid
or delivered to the Debt Coordinator in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to the
guaranteed or secured Obligations and all other amounts payable under the
Credit Documents, whether matured or unmatured, in accordance with the terms of
the Credit Agreement and such Loan Documents, or to be held as collateral for
any such Obligations or other amounts payable under the Credit Agreement or
other Loan Documents thereafter arising.
(c) If any Loan Party, as a Guarantor or Collateral Grantor (and not as an
Obligor), makes directly or indirectly any payment to any Bank of all or any
part of any guaranteed or secured Obligations, and the Final Payment shall have
occurred, then such Loan Party shall be expressly subrogated to the rights of
the payee Bank under the applicable Credit Documents and such Bank will, at
such Loan Party's request and expense, execute and deliver to such Loan Party
appropriate documents, without recourse and without representation or warranty,
necessary to evidence such subrogation, transfer or assignment to such Loan
Party of an interest in the guaranteed or secured Obligations resulting from
such payment made by such Loan Party as Guarantor or Collateral Grantor,
pursuant to the Credit Agreement or other Loan Document.
(d) Each such Loan Party further agrees that its obligations, as a
Guarantor or Collateral Grantor, under the Credit Documents and this Section
8.01 are without claim, offset, counterclaim or defense of any kind and such
obligations remain continuing obligations of such Loan Party until paid in
full, including any attorney's fees and costs incurred by the Agent and in
connection with the enforcement of any the Credit Documents and other
Transaction Documents.
Section 8.03 Release of Claims. As of the date hereof, each of the
undersigned Loan Parties hereby acknowledges and agrees, for itself and for
each of its Subsidiaries, that it does not have any defenses, counterclaims,
offsets, cross-complaints, claims or demands of any kind or nature whatsoever
that can be asserted to reduce or eliminate all or any part of the obligation
of any Loan Party to pay any amounts owed in respect of any Bank Exposure under
this Agreement or any other Amendment Document, Credit Document or Transaction
Document or otherwise, or to seek affirmative relief or damages of any kind or
nature from any of the following (each a "Bank Party"): the Debt Coordinator,
the Agents, arrangers, book managers or syndication agents under any of the
Bank Facilities, the Collateral Trustees, the Rexair Collateral Agent, and the
Banks (including in their capacities as Issuers of Letters of Credit). Each of
the undersigned Loan Parties, for itself and for each of its Subsidiaries,
hereby voluntarily and knowingly releases and forever discharges each Bank
Party and each of its Affiliates, officers, employees, agents, representatives,
successors and assigns (each, a "Bank Related Person"), from all possible
claims, actions, demands, causes of action, damages, costs, or expenses, and
liabilities whatsoever, known or unknown, anticipated or unanticipated,
suspected or unsuspected, fixed, contingent, or conditional, at law or in
equity, originating in whole or in part on or
71
before the date hereof, which each or any Loan Party may now or hereafter have
against any Bank Party or Bank Related Person, if any, and irrespective of
whether any such claims arise out of contract, tort, violation of law or
regulations, or otherwise, including, without limitation, the exercise of any
rights and remedies under this Agreement or any other Amendment Document,
Credit Document or Transaction Document, or the negotiation and execution of
this Agreement or any such other document.
Section 8.04 Additional Guarantees and Collateral. Each Loan Party hereby
agrees to provide, and to cause its respective Subsidiaries to provide, such
additional guarantees and/or collateral (to the extent the granting thereof
would not violate any existing contractual obligation or applicable law) as may
from time to time be requested in accordance with Section 6.01(j) and (k).
Section 8.05 Cash Collateral. Any cash or Permitted Cash Equivalents
applied as a Letter of Credit Collateralization, an Unfunded Commitment
Reduction or a Permanent Reduction of the Notes, shall at all times be
deposited in segregated controlled accounts, including, in the case amounts to
be applied to the Permanent Reduction of the Notes, a Notes Escrow Account, in
each case, maintained at the Debt Coordinator subject to the Senior Debt Lien
and the control of the Collateral Trustees pursuant to a control agreement
acceptable to the Collateral Trustees and the Debt Coordinator (each a "Cash
Collateral Account"), provided that the rights of all other Senior Debt shall
be subordinated to the prior rights of the holders of such Senior Debt Exposure
for whose benefit such deposit was made. In the absence of a default,
utilization of any interest and other earnings on such Cash Collateral
Accounts, and utilization of cash and Cash Equivalents on deposit in any such
Cash Collateral Account containing only amounts applied to Unfunded Commitment
Reductions, shall be governed by Section 3.04(b).
Section 8.06 Release of Lien in Connection with Asset Dispositions. In the
absence of a Default (other than a Default that is fully cured by the relevant
disposition and application of proceeds thereof), upon the application of the
Rexair Proceeds, the Shared Collateral Proceeds and the Non-Shared Proceeds of
any permitted Asset Disposition that are subject to the Rexair Debt Lien, the
Shared Collateral Lien and/or the Non-Shared Lien to the Permanent Reduction of
Senior Debt Exposure as provided herein, the Debt Coordinator, acting for the
Steering Committee Majority, shall direct the Collateral Trustees and, as
applicable, the Rexair Collateral Agent to release the assets so disposed (but,
not the proceeds thereof) from the Rexair Debt Lien, the Shared Collateral Lien
and/or the Non-Shared Lien as applicable, and, if such Asset Disposition
consists of the sale of the capital stock, or all or substantially all of the
assets, of a Guarantor, such Guarantor shall automatically be released from the
Guaranties; provided that (a)(i) at least 10 Business Days prior to the closing
of such Asset Disposition (which time period may be reduced to no fewer than 5
Business Days at the sole discretion of the Debt Coordinator), each of the
Banks are provided with a certificate (the "Initial Certificate") of the Chief
Financial Officer of USI, stating the asset or assets to be sold, the general
structure of the transaction (i.e., equity, assets or a combination of both),
the full consideration for the Asset Disposition proposed to be paid, as of the
date of such certification, the known or estimated amounts and purposes of any
then contemplated escrows, and the estimated transaction costs of the
disposition, and (ii) on or before the date of the closing of the Asset
Disposition, each of the Banks are provided with a further certificate of the
Secretary, President or other executive officer of USI, (A) describing any
material modification of the transaction, (B) stating the actual consideration
and transaction costs paid or to be paid, and the amounts and purposes of any
escrows and retained indemnification obligations, and (C) certifying (1) that
the board of directors of USI (or the independent finance committee thereof)
and, if applicable, the board of any other selling Affiliate, has determined
the amount of such consideration, which shall not be more than 5% less than as
described in the Initial Certificate, to be fair market value, and the
transaction costs and any escrows and retained indemnification obligations to
be reasonable and (2) no Default exists other than a Default that will be fully
cured by the relevant Asset Disposition and application of Net Cash Proceeds
thereof; and
72
provided further that the Steering Committee Majority shall not be obligated
to, and shall not, authorize the release of the Senior Debt Lien or the Rexair
Debt Lien on any such asset and such Guarantor shall not be released from the
Guaranties, (x) if a Default has occurred and is continuing or would occur as a
result of the Asset Disposition, other than a Default that shall be and is
fully cured by the Asset Disposition and the application of the Net Cash
Proceeds thereof, or (y) if the Asset Disposition is anticipated to yield Net
Cash Proceeds in excess of $150,000,000 and the Majority Banks shall have
instructed the Steering Committee in writing, no later than 5 Business Days
prior to the date for the closing of such Asset Disposition as stated in the
Initial Certificate, not to release such Lien or Liens because they have
determined that the requirements for such release as set forth in this Section
8.06 have not been satisfied or that a Default has occurred and is continuing
or would occur as a result of the Asset Disposition, other than a Default that
shall be and is fully cured by the Asset Disposition and the application of the
Net Cash Proceeds thereof, and (b) in addition, in the case of any and all
assets subject to the Rexair Debt Lien, unless prior to or simultaneously with
such Asset Disposition all Bank Exposure under the Rexair Credit Agreement is
repaid and on all commitments thereunder terminated, any such release shall be
subject to the consent of each Rexair Bank.
Section 8.07 Release of Lien in Connection with Exchange Offer. (a) In the
absence of a Default, upon the consummation of the Exchange Offer the aggregate
amount of funds in the Notes Escrow Account allocable to the 2003 Notes
converted into Extended Notes pursuant to the Exchange Offer as on such date
shall be automatically released from the Rexair Debt Lien, the Shared
Collateral Lien and/or the Non-Shared Lien, as applicable, for Pro Rata
application to the principal on the Extended Notes.
(b) In the absence of a Default, if the Exchange Offer has been
consummated and funds released in accordance with Section 8.07(a), then upon
the final maturity or earlier payment at maturity of the Remaining Notes, the
aggregate amount of funds the Notes Escrow Account allocable to the Remaining
Notes as on such date shall be automatically released from the Rexair Debt
Lien, the Shared Collateral Lien and/or the Non-Shared Lien, as applicable, for
Pro Rata application to the principal on the Remaining Notes.
ARTICLE IX
DEBT COORDINATOR AND STEERING COMMITTEE
Section 9.01 Appointments and Authorizations. (a) Each of the Banks hereby
irrevocably appoints Bank of America, N.A., as "Debt Coordinator", and hereby
further irrevocably appoints and constitutes the "Steering Committee", to be
comprised at any time of the Debt Coordinator and (i) JPMorgan Chase Bank, HSBC
Bank USA, The Bank of New York and (ii) any other Bank that holds, and for so
long as it holds, one of the three largest Pro Rata Shares of the Total
Principal Exposure of all Banks under all Bank Facilities taken as a whole,
each from time to time willing to serve on such committee (together with the
Debt Coordinator, the "Steering Committee Members"); provided that (A) if at
any time any of the otherwise qualifying Banks (1) is unwilling to serve on the
Steering Committee or resigns from the Steering Committee in accordance with
Section 9.09(a) or (2) no longer holds any Bank Exposure (or, in the case of
any Bank that is a Steering Committee Member pursuant to (ii) above, no longer
holds one of the three largest Pro Rata Shares thereof), then such Bank shall
cease to be a Steering Committee Member and (B) if, following its departure,
the number of Banks (excluding the Debt Coordinator) comprising the Steering
Committee would be 3 or less, then such departing Bank shall be replaced by the
Bank holding the next largest Pro Rata Share that is not then a Steering
Committee Member and is willing to serve, and such replacing Bank is hereby so
appointed as a Steering Committee Member; provided further that that no
Steering Committee Member shall be
73
permitted to act in such capacity at any time during which such Steering
Committee Member is a Defaulting Bank.
(b) The Debt Coordinator is hereby authorized and empowered (i) to
exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Transaction Document, together with
such powers as are reasonably incidental thereto, and (ii) without limiting the
generality of the foregoing, to exercise all of the rights and powers of the
Agents existing prior to the "Effective Date" of the Existing Agreement under
the Credit Documents, including all such rights and powers under any and all
Credit Documents and other Transaction Documents, including, without
limitation, the rights and powers of any such Agent in its capacity as Required
Representative or otherwise under the Collateral Trust Agreement and other
Collateral Documents, subject, in the case of clauses (i) and (ii) above, to
the further consent of any or all of the Banks as may be required by the other
provisions of this Agreement. The Steering Committee and each Steering
Committee Member are hereby authorized and empowered to exercise such powers
and perform such duties as are expressly delegated to the Steering Committee by
the terms of this Agreement or any other Transaction Document, together with
such powers as are reasonably incidental thereto.
(c) In the exercise of such rights and powers, each of the Debt
Coordinator and the other Steering Committee Members shall be entitled to all
rights, privileges, indemnities, limitations on liability, exculpatory
provisions, releases, notice or lack of notice requirements, rights to rely and
other provisions protective of the Agents, or any of them in any capacity,
under each of the Credit Agreements and all other Credit Documents, Amendment
Documents and other Transaction Documents, including, without limitation, those
set forth in this Article, Article XI of the USI Credit Agreement, Section 12
of the Rexair Credit Agreement, Article VII of the Collateral Trust Agreement,
Section 16 of the Pledge and Security Agreement, Section 11 of the Rexair
Pledge Agreement, and Article VIII of the Rexair Security Agreement, in each
case as if set forth and restated in its entirety herein and as if applicable
to any actions (or inactions) hereby authorized under or in respect of any or
all of the Credit Documents, Amendment Documents or other Transaction
Documents.
(d) Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Transaction Document, neither the Debt
Coordinator nor any Steering Committee Member, in its capacity as Debt
Coordinator or Steering Committee Member, shall have any duties, obligations or
responsibilities, except those expressly set forth herein, nor shall the Debt
Coordinator, the Steering Committee or any Steering Committee Member have or be
deemed to have any fiduciary relationship of any kind with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Credit Documents or
Transaction Document, or otherwise exist, against the Debt Coordinator or the
Steering Committee.
Section 9.02 Delegation of Duties. Each of the Debt Coordinator and the
Steering Committee may execute any of its duties under this Agreement or any
other Credit Document or Transaction Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither the Debt Coordinator nor the
Steering Committee shall be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects with reasonable care.
Section 9.03 Liability. None of the Debt Coordinator, any Steering
Committee Member, their Affiliates or any of their officers, directors,
employees, agents or attorneys-in-fact (collectively, the "Steering Committee
Related Persons") shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Transaction Document (except for their own gross negligence or willful
misconduct), or (b) be responsible in any
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manner to any of the Banks for any recital, statement, representation or
warranty made by the Loan Parties or any Subsidiary or Affiliate thereof, or
any officer thereof, contained in this Agreement or in any other Transaction
Document, or in any certificate, report, statement or other document referred
to or provided for in, or received by the Debt Coordinator or Steering
Committee Member under or in connection with, this Agreement or any other
Transaction Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Transaction
Document, or for any failure of any of the Loan Parties or any other party to
any Transaction Document or Credit Document to perform its obligations
hereunder or thereunder. No Steering Committee Related Person shall be under
any obligation to any Bank 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 Transaction Document, or to inspect the properties,
books or records of any of the Loan Parties.
Section 9.04 Reliance. The Banks agree that the Debt Coordinator and each
Steering Committee Member shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, e-mail or other electronic
transmission, facsimile, telex or telephone message, statement 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 counsel to the Debt Coordinator),
independent accountants and other experts selected by the Debt Coordinator or
the Steering Committee, as the case may be. The Banks agree that the Debt
Coordinator and the Steering Committee Majority shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Transaction Document unless it shall first receive such advice or concurrence
of such Banks as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Debt Coordinator and each Steering Committee Member shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Transaction Document in accordance with a request
or consent of the Majority Banks or, as may be required by other provisions of
this Agreement, certain or all of the Banks, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Banks.
Section 9.05 Notice of Default. Neither the Debt Coordinator nor any
Steering Committee Member shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the Debt
Coordinator for the account of the Banks unless the Debt Coordinator shall have
received written notice from a Bank or the Loan Parties referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Debt Coordinator
receives such a notice, the Debt Coordinator shall give notice thereof to the
Banks. The Debt Coordinator shall take such action with respect to such Default
or Event of Default as shall be requested by or with the consent of the
Majority Banks in accordance with Article X; provided, however, that unless and
until the Debt Coordinator shall have received any such request or consent, the
Debt Coordinator may (but shall not be obligated to) take such action (other
than any action under Article VII), or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem (in its sole
discretion) advisable or in the best interest of the Banks.
Section 9.06 Credit Decision. Each Bank expressly acknowledges that none
of the Steering Committee Related Persons has made any representation or
warranty to it and that no act by the Debt Coordinator, the Steering Committee
or any Steering Committee Member hereinafter taken, including any review of the
affairs of the Loan Parties, shall be deemed to constitute any representation
or warranty by the Debt Coordinator, the Steering Committee or any Steering
Committee Member to any Bank. Each Bank represents to the Debt Coordinator, the
Steering Committee and each Steering Committee Member that it has,
independently and without reliance upon the Debt Coordinator, the
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Steering Committee or any Steering Committee Member, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of the Loan Parties, and all
applicable bank regulatory laws relating to the transactions contemplated
thereby, and made its own decision to enter into this Agreement and extend
credit to the Loan Parties hereunder. Each Bank also represents that it will,
independently and without reliance upon the Debt Coordinator, the Steering
Committee or any Steering Committee Member 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 Transaction Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the Debt
Coordinator or the Steering Committee, neither the Debt Coordinator, nor the
Steering Committee, nor any Steering Committee Member shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Loan Parties which may come into the
possession of any of the Steering Committee Related Persons.
Section 9.07 Indemnification. Whether or not the transactions contemplated
hereby shall be consummated, the Banks shall indemnify, upon demand, each of
the Steering Committee Related Persons (to the extent not reimbursed by or on
behalf of the Loan Parties and without limiting the obligation of the Loan
Parties to do so), ratably from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind whatsoever which may at any time
(including at any time following the expiration of the Independent L/Cs and the
repayment of the Loans and the termination or resignation of the Debt
Coordinator) be imposed on, incurred by or asserted against any such Person in
any way relating to or arising out of this Agreement, any other Transaction
Document or any document contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by any such Person under or in connection with any of the foregoing; provided,
however, that no Bank shall be liable for the payment to any of the Steering
Committee Related Persons of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Debt Coordinator, the Steering Committee and each Steering Committee Member, as
the case may be, upon demand for its ratable share of any costs or
out-of-pocket expenses (including attorney's fees) incurred by the Debt
Coordinator, the Steering Committee or such Steering Committee Member in
connection with the administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Transaction Document, or any document contemplated by or referred to
herein to the extent that such Debt Coordinator, the Steering Committee or
Steering Committee Member is not reimbursed for such expenses by or on behalf
of the Loan Parties. Without limiting the generality of the foregoing, if the
Internal Revenue Service or any other governmental authority of the United
States or other jurisdiction asserts a claim that the Debt Coordinator did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered, was not properly executed, or
because such Bank failed to notify the Debt Coordinator of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason), such Bank shall indemnify the Debt
Coordinator fully for all amounts paid as a result thereof, directly or
indirectly, by the Debt Coordinator as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Debt Coordinator under this Section 9.07, together with
all costs and expenses (including attorney's fees). The obligation of the Banks
in this Section 9.07 shall survive the payment of all Obligations hereunder.
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Section 9.08 Debt Coordinator and Steering Committee Members, in their
Individual Capacities. BofA and its Affiliates, and each other Steering
Committee Member and its Affiliates, may make Loans to, issue letters of credit
for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory or other
business with the Loan Parties as though BofA or such other Steering Committee
Member were not the Debt Coordinator or a Steering Committee Member hereunder
and without notice to or consent of the Banks. With respect to its Loans and
participations in Letters of Credit, BofA and any other Steering Committee
Member shall have the same rights and powers under this Agreement and the other
Transaction Documents as any other Bank and may exercise the same as though it
were not the Debt Coordinator or a Steering Committee Member, and the terms
"Bank" and "Banks" shall include BofA and each other Steering Committee Member
in its individual capacity.
Section 9.09 Successor Debt Coordinator or Steering Committee Member. (a)
The Debt Coordinator or any other Steering Committee Member may resign as Debt
Coordinator and/or Steering Committee Member, as applicable, upon 30 days'
notice to the Banks and the Loan Parties, and in accordance with Section
9.01(a), any Steering Committee Member whose Pro Rata Share of Bank Exposure no
longer qualifies it to sit on the Steering Committee shall, upon losing such
qualification, be deemed removed from the Steering Committee.
(b) Upon the acceptance by any Bank of a position as a replacement
Steering Committee Member pursuant to Section 9.01(a), such Bank shall
thenceforth and without further action required be and be deemed the duly
authorized and empowered replacement Steering Committee Member in place of the
resigning or disqualified member, entitled to all of the rights, privileges and
protections afforded a Steering Committee Member hereunder, effective upon the
effectiveness of such acceptance.
(c) If the Debt Coordinator should resign, the Steering Committee (or any
three (3) members thereof) shall appoint a successor Debt Coordinator, subject
to the approval of the Majority Banks if no Event of Default has occurred and
is continuing, such approval not to be unreasonably withheld or delayed. If no
successor agent is appointed prior to the effective date of the resignation of
the Debt Coordinator, the Debt Coordinator may appoint, after consulting with
the Steering Committee and subject to the approval of the Majority Banks if no
Event of Default has occurred and is continuing, such approval not to be
unreasonably withheld or delayed, a successor agent from among the Banks or any
Affiliate. Any successor Debt Coordinator appointed under this Section 9.09
shall be a commercial bank organized under the laws of the United States or any
State thereof, and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of, and shall be entitled to all of the rights, privileges and
protections afforded, of the retiring Debt Coordinator and the term "Debt
Coordinator" shall mean such successor agent and the retiring Debt
Coordinator's appointment, powers and duties as Debt Coordinator shall be
terminated. After any retiring Debt Coordinator's resignation hereunder as Debt
Coordinator, the provisions of this Article IX shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Debt Coordinator
under this Agreement. If no successor agent has accepted appointment as Debt
Coordinator by the date which is 30 days following a retiring Debt
Coordinator's notice of resignation, the retiring Debt Coordinator's
resignation shall nevertheless thereupon become effective and the Steering
Committee (or any three members thereof) shall perform all of the duties of the
Debt Coordinator hereunder until such time, if any, as a successor Debt
Coordinator is appointed as provided for above.
Section 9.10 Arrangers, Syndication Agents and Others. None of the
Arrangers under the USI Credit Agreement, the Joint Lead Arrangers, Joint Book
Manager or Syndication Agent under the Rexair Credit Agreement, nor any Person
at any time functioning in a like capacity under any
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of the Bank Facilities, shall, in such capacity, have any duties or
responsibilities, or shall incur any obligations or liabilities, under this
Agreement. Each Bank acknowledges that it has not relied, and will not rely, on
any such Person in deciding to enter into this Agreement.
ARTICLE X
INTERCREDITOR ARRANGEMENTS
Section 10.01 Voting and Consents. (a) Amendments and Waivers, Generally.
Except as otherwise specifically provided in this Section 10.01 or elsewhere in
this Agreement, any amendment or waiver of any of the provisions hereof must be
in writing and signed or consented to by the Majority Banks (and in the case of
an amendment, USI) and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given, it being
understood and agreed that, except as otherwise expressly provided in this
Section 10.01, any amendment or waiver subject to any of the provisions of this
Section 10.01 may only be effected pursuant to the provisions of this Section
10.01 in lieu of any amendment provisions specified in any applicable Bank
Facility and, if so effected, shall be deemed approved for and shall be binding
upon all Banks and Bank Facilities. On all matters requiring the vote or
consent of the Banks, all Banks shall vote as a single class with each Bank's
vote being equal at any time to its Pro Rata Share of the Total Principal
Exposure of all Banks under all Bank Facilities taken as a whole, the holders
of a majority of such Total Principal Exposure of all Banks shall constitute
the "Majority Banks", and the actions of the Majority Banks shall be binding on
each of the Banks.
(b) Actions Requiring all Banks. Without the written consent or approval
of each Bank, (and in the case of an amendment, USI) no amendment or waiver of
any provision of this Agreement or of any Amendment Document, or of any Credit
Document or other Transaction Document may do any of the following:
(i) reduce, other than on a Pro Rata basis in accordance with the
provisions of this Agreement, the Bank Exposure (other than the Unfunded
Commitments) of any Banks under any of the Bank Facilities (except in the
case of any application of Rexair Proceeds, which amounts shall be applied
Pro Rata solely among the Rexair Banks),
(ii) amend or waive the provisions of this Article X, or
(iii) change any matters expressly delegated to the Debt Coordinator
and/or the Steering Committee pursuant to Article IX or any other
provision of this Agreement, and with respect to such matters, the actions
and decisions of the Debt Coordinator and the Steering Committee Majority
shall be binding on each of the Banks.
(c) Certain Rexair Related Matters. So long as any Rexair Bank Exposure
remains outstanding, or any commitments with respect thereto have not been
terminated, no amendment, waiver or consent shall, unless in writing and signed
by:
(i) except as provided in Section 8.06(b), all of the Rexair Banks
(other than any such Bank that is, at such time, a Defaulting Bank), to
permit or consent to (A) the release of all or substantially all of the
Rexair Debt Collateral from the Rexair Debt Lien or (B) the release of all
or substantially all of the aggregate value of the benefits collectively
available to the Rexair Banks under any of the Rexair Bank Debt
Guaranties,
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(ii) the Rexair Banks holding the majority of the Total Principal
Exposure under the Rexair Facility (the "Rexair Bank Majority") (not
including any Defaulting Bank at such time), to permit or consent to (A)
except as provided in Section 8.06(b), any release of assets consisting of
less than all or substantially all of the Rexair Collateral from the
Rexair Debt Lien, (B) any transfers of assets (other than Excepted Assets)
to any other Person (other than to any Loan Party that is not a Rexair
Obligor) or (C) any amendment or waiver of any provision of Section
6.01(r),
(iii) the Rexair Banks holding two-thirds of the Total Principal
Exposure under the Rexair Facility, to permit or consent to any transfers
of assets (other than Excepted Assets) from any of the Rexair Obligors to
any Loan Party that is not a Rexair Obligor, or
(iv) the USI Banks holding two-thirds of the Total Principal Exposure
under the USI Bank Facilities, to permit or consent to any Investment in,
or asset transfer from any Loan Party that is not a Rexair Obligor to, any
of the Rexair Obligors.
(d) Matters Requiring Consent of Each Affected Bank. No amendment, waiver
or consent shall, unless in writing and signed by each affected Bank (other
than any Bank that is, at such time, a Defaulting Bank) (and in the case of an
amendment, USI), do any of the following at any time:
(i) release or agree to release all or substantially all of the
Collateral in any transaction or series of related transactions,
(ii) release or agree to release all or substantially all of the
aggregate value of the benefits collectively available to the Banks under
any of the USI Bank Debt Guaranties,
(iii) increase the commitments of such Bank under any Bank Facility,
(iv) limit the liability of any Loan Party under any of the Credit
Documents,
(v) reduce, other than on a Pro Rata basis and in accordance with the
terms hereof, the Commitments of such Bank, obligors or other credit
extension providers under any of the Bank Facilities or the principal (or,
in the case of letters of credit and acceptances, stated amount and face
amount, respectively) of, or interest on, or any fees or other amounts
payable with respect to any Credit Extension under any Bank Facility,
(vi) postpone any date fixed for any payment or permanent reduction
of principal (or, in the case of Letters of Credit and bankers'
acceptances, stated amount and face amount, respectively or Letter of
Credit Collateralization) of, or interest on, or any fees or other amounts
payable with respect to any Credit Extension under any Bank Facility or
postpone any date for any Permanent Reduction required hereunder, or
(vii) during the continuance of any Default under Section 7.01 with
respect to any amount owing to such Bank, waive as to a requested Credit
Extension from such Bank, the condition precedent in Section 4.02(b).
(e) Amendments and Consents Requiring Consent of Specific Banks. No
amendment, waiver or consent shall, unless in writing and signed by the
Majority Banks (not to include any Bank that is, at such time, a Defaulting
Bank) (and in the case of an amendment, USI) and:
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(i) the Debt Coordinator, modify any provision of Article IX
applicable to the Debt Coordinator or any of the Agents, or any other
provision of any Credit Document, Amendment Document or other Transaction
Document applicable to the Debt Coordinator or any of the Agents,
(ii) the Issuing Bank under any Bank Facility, modify any provision
of such Bank Facility applicable to such Issuing Bank,
(iii) the Swingline Bank under any Bank Facility, modify any
provision of such Bank Facility applicable to such Swingline Bank,
(iv) the Collateral Trustees, modify any provision of the USI
Collateral Documents applicable to the Collateral Trustees, or
(v) the Rexair Collateral Agent, modify any provision of the Rexair
Collateral Documents applicable to the Rexair Collateral Agent.
(f) Notices. Each Bank agrees that it will (or will instruct its
representative or agent under each Bank Facility to which it is a party, as
applicable, to) provide notice to the Debt Coordinator of any proposed
amendment or waiver under any such Bank Facility. If the Debt Coordinator makes
a determination that any of the elements of the type specified in any of the
foregoing clauses (a) through (e) are present in such proposed amendment or
waiver, it will deliver such proposed amendment or waiver to all of the Banks
entitled to vote on or give its consent to such matter.
Section 10.02 Defaults; Standstill. (a) If a default or event of default
shall occur under any Bank Facility (a "Defaulted Bank Facility"), (i) each
Bank party thereto agrees that it will (or will instruct its representative or
agent under such Defaulted Bank Facility to which it is a party, as applicable,
to) promptly notify the Debt Coordinator, and the Debt Coordinator will
promptly notify all Banks under all of the Bank Facilities, the Collateral
Trustees and the Rexair Collateral Agent and (ii) from the Effective Date until
the earlier of (1) the Maturity Date and (2) a Bankruptcy Event, (A) each Bank,
upon the occurrence and during the continuance of an Event of Default under any
Bank Facility to which it is a party, agrees that it will refrain from
exercising any right, remedy or power available to it (including, without
limitation, rights of set-off (whether or not a default or event of default
shall have occurred) or acceleration and the right to reduce or terminate
commitments), and (B) each Bank agrees that it will refrain from directing any
of the Agents, the Collateral Trustees, the Rexair Collateral Agent, the Debt
Coordinator or any other Person from taking any such action (including making
claims under any guaranty) under such Defaulted Bank Facility or any applicable
Credit Documents or applicable law related thereto, in either case, unless
authorized to do so by the Majority Banks, acting through the Debt Coordinator.
EACH OF THE BANKS ACKNOWLEDGES AND AGREES THAT, WITH RESPECT TO ANY COLLATERAL,
IT SHALL HAVE NO RIGHT TO INDIVIDUALLY DIRECT THE COLLATERAL TRUSTEES, THE
REXAIR COLLATERAL AGENT, THE DEBT COORDINATOR, ANY OF THE AGENTS, THE STEERING
COMMITTEE OR ANY OTHER PERSON TO TAKE OR REFRAIN FROM TAKING ANY ACTION
HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR UNDER ANY BANK FACILITY OR
UNDER APPLICABLE LAW, AND THAT ALL RIGHTS WITH RESPECT TO THE COLLATERAL SHALL
BE VESTED SOLELY IN THE BANKS ACTING THROUGH THE COLLATERAL TRUSTEES OR THE
REXAIR BANKS ACTING THROUGH THE REXAIR COLLATERAL AGENT (IN EACH CASE, AS
INSTRUCTED BY THE DEBT COORDINATOR) AND OTHERWISE IN ACCORDANCE WITH THIS
AGREEMENT; provided, however, that notwithstanding the foregoing, upon any
drawing under a Letter of Credit, the applicable issuer thereof may request
that the Collateral Trustees release, and the Collateral Trustees shall
release, an amount equal to the amount of such drawing to the extent
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available for reimbursement from the Independent L/C Cash Collateral Account or
L/C Cash Collateral Account, as applicable.
(b) In case the Debt Coordinator, the Collateral Trustee or the Rexair
Collateral Agent shall have proceeded to enforce any right, remedy or power
under this Agreement or the other Transaction Documents and the proceeding for
the enforcement thereof shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Debt Coordinator, the
Collateral Trustee or the Rexair Collateral Agent, then and in every such case
each Bank shall, subject to any effect of or determination in such proceeding,
severally and respectively be restored to their former positions and rights
hereunder and under the other Transaction Documents with respect to the
Collateral and in all other respects.
Section 10.03 Other Actions. At the Loan Parties' cost, each Bank will
make, execute, endorse, acknowledge, file and/or deliver to the Collateral
Trustees and/or the Rexair Collateral Agent from time to time such powers of
attorney (in form satisfactory to such Bank), documents, and other assurances
or instruments and take such further steps relating to the Collateral as the
Debt Coordinator may reasonably require to preserve or protect the security
interests in the Collateral granted pursuant to the Transaction Documents.
Section 10.04 Sharing of Non-Ratable Proceeds. If, upon or after (i) the
occurrence of a Bankruptcy Event or the Maturity Date or (ii) any acceleration
of Bank Debt, any Bank shall have obtained, whether through payments,
prepayments, application of setoff, loss of Letter of Credit Collateralization
by any Independent L/C Issuer or any Issuing Bank or otherwise (other than
payments of amounts described in Sections 3.05(b)(ii), 3.05(c)(ii), 3.06 (as
applicable to payments with respect to Rexair Debt only) and 3.07(b) above,
"Rexair Proceeds"), payment in respect of its Total Principal Exposure in
excess of its Pro Rata Share (as determined by reference to Schedule I as in
effect as of the Effective Date), such Bank shall forthwith purchase from the
other Banks such interests or participating interests in the Obligations due
and payable or owing to them, as the case may be, as shall be necessary to
cause such purchasing Bank to share the excess payment Pro Rata with each of
them; provided that if all or any portion of such excess payment is thereafter
recovered from such purchasing Bank, such purchase from each other Bank shall
be rescinded and such other Bank shall repay to the purchasing Bank the
purchase price to the extent of such Bank's Pro Rata Share of such recovery.
The Loan Parties agree that any Bank so purchasing an interest or participating
interest from another Bank pursuant to this Section 10.04 may, to the fullest
extent permitted by law, exercise all its rights of payment (including, without
limitation, the right of setoff) with respect to such interest or participating
interest, as the case may be, as fully as if such Bank were the direct creditor
of the respective Loan Parties in the amount of such interest or participating
interest, as the case may be. The receipt by any Rexair Bank of any Rexair
Proceeds shall be subject to ratable sharing provisions of Section 13.06 of the
Rexair Credit Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Notices, Etc. All notices, requests and other communications
provided for hereunder shall be in writing (which term includes facsimile) and
shall be effective (A) when delivered to such party at its address set forth in
the signature block of such party on the signature page hereto (or such other
address as shall be designated by such party in a written notice to USI and the
Debt Coordinator), (B) when transmitted to such party by facsimile addressed to
it at its facsimile number set forth in the signature block of such party on
the signature page hereto (or such other address as shall be designated by such
party in a written notice to USI and the Debt Coordinator), and
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confirmation of receipt is received, and (C) 72 hours after being sent to such
party by certified or registered United States mail, addressed to it at its
address set forth in the signature block of such party on the signature page
hereto (or such other address as shall be designated by such party in a written
notice to USI and the Debt Coordinator), with first class or airmail postage
prepaid, provided that any notice of or request for any borrowing, Letter of
Credit or other extension of credit, any notice of default or request for a
waiver or amendment of any provision of any Transaction Document, and any
notice of payment of any Obligation under any Bank Facility, shall not be
effective until received by the Debt Coordinator.
Section 11.02 No Waiver; Remedies. No failure on the part of the Debt
Coordinator, the Rexair Collateral Agent or the Collateral Trustees to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 11.03 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Manual delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
Section 11.04 Binding Effect; Novation. (a) Except as set forth in
subsection (b) below, this Agreement shall become effective when it shall have
been executed by the Loan Parties, the Agents, the Debt Coordinator, the
Collateral Trustees, the Rexair Collateral Agent and the Banks and thereafter
shall be binding upon and inure to their benefit and that of their respective
successors and assigns, except that no Loan Party shall have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Debt Coordinator.
(b) Articles II and III of this Agreement shall become effective upon the
satisfaction of (i) subsection (a) above and (ii) the conditions precedent set
forth in Section 4.01.
(c) To the extent that any of the Bank Facilities contains any provision
that requires the consent of any Loan Party to permit a Bank party to such Bank
Facility to assign all of any part of its rights and obligations under or in
respect of such Bank Facility to any assignee, such requirement shall terminate
upon the occurrence and during the continuance of a Default. Except as provided
in the preceding sentence, all provisions in each Bank Facility (other than the
USI Credit Agreement) with respect to the assignment of the rights and
obligations of any Bank thereunder shall continue to be in effect. All
provisions relating to the assignment of rights and obligations of any Bank
under the USI Credit Agreement, notwithstanding any provisions in the USI
Credit Agreement to the contrary, are hereby amended and restated to read as
set forth in Exhibit E.
Section 11.05 Jurisdiction; Process Agent; Judgment Currency; Etc. (a)
Each of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any of the other Transaction
Documents to which it is a party, or for recognition or enforcement of any
judgment (other than, in any case, with respect to any foreclosure or other
enforcement action with respect to or in any way related to the Collateral
which is reasonably determined by the Debt Coordinator to be advisable to be
brought in a court of local jurisdiction), and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York
State court or, to the
82
extent permitted by law, in such Federal court (or, in such local court, as
aforesaid). Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other
Transaction Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) If for the purpose of obtaining judgment in any court it is necessary
to convert a sum due hereunder to any party hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent permitted by
law, that the rate of exchange used shall be that at which in accordance with
normal banking procedures such party could purchase the first currency with
such other currency in New York City on the day which is at least two Business
Days prior to the day on which final judgment is rendered.
(d) To the fullest extent permitted by law, the obligation of any party in
respect of any sum payable hereunder by it to any other party hereunder shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
Dollars (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by such other party of any sum adjudged to
be so due in the Judgment Currency such other party may, in accordance with
normal banking procedures, purchase the Agreement Currency with the Judgment
Currency; if the amount of the Agreement Currency which could have been so
purchased is less than the sum originally due to such other party in the
Agreement Currency, such first party agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such other party against such
loss, and, if the amount of the Agreement Currency which could have been so
purchased exceeds the sum originally due to such other party, such other party
agrees to remit to such first party such excess.
(e) To the extent that any of the parties hereto has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution or judgment or otherwise) with respect to
itself or any of its property, each of the parties hereto hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of its
obligations under this Agreement and the other Transaction Documents. Each of
the parties hereto agrees that the waivers set forth above shall have the
fullest extent permitted under the Foreign Sovereign Immunities Act of the
United States of America and are intended to be irrevocable and not subject to
withdrawal for purposes of such act.
Section 11.06 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 11.07 Conflict with Other Agreements. In the event of any conflict
between this Agreement (or any portion thereof) and any Collateral Document now
existing or hereafter entered into, the terms of this Agreement shall prevail.
Section 11.08 Costs and Expenses. (a) The Loan Parties agree to pay on
demand (i) all reasonable costs and expenses of the Debt Coordinator, each of
the Agents, the Steering Committee, the Rexair Collateral Agent, the Collateral
Trustees and each Bank in connection with the preparation, execution, and
delivery of this Agreement (including, without limitation, (A) all due
83
diligence, collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel
for the Debt Coordinator and each Steering Committee Member, including all
local counsel and foreign jurisdiction counsel, with respect to advising the
Debt Coordinator, the Agents, the Steering Committee, the Rexair Collateral
Agent and the Collateral Trustees as to their rights and responsibilities, and
the rights and responsibilities of the Banks, or the perfection, protection or
preservation of rights or interests, under the Transaction Documents, with
respect to negotiations with any Loan Party or with other creditors of any Loan
Party or any of their Subsidiaries with respect to waivers or extensions of
waivers of Defaults or any events or circumstances that may give rise to a
Default and with respect to contingency planning for a possible bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally
and any proceeding ancillary thereto, and any potential debtor-in-possession
financing proposal by some or all of the Banks and (ii) all reasonable costs
and expenses of the Debt Coordinator, each Agent, each Steering Committee
Member, the Collateral Trustees, the Rexair Collateral Agent and each of the
Banks in connection with the enforcement of the Transaction Documents,
including, in any action, suit or litigation, or any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally (including,
without limitation, the reasonable fees and expenses of counsel for the Debt
Coordinator, the Agents, each Steering Committee Member, the Rexair Collateral
Agent, the Collateral Trustees and each of the Banks with respect thereto).
(b) The Loan Parties agree to indemnify and hold harmless the Debt
Coordinator, the Steering Committee, each Agent and each Bank and each of their
Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) this Agreement and the other Transaction Documents, or
any of the transactions contemplated hereby or thereby, except to the extent
such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 11.08(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any Loan Party,
its directors, shareholders or creditors or an Indemnified Party or any
Indemnified Party is otherwise a party thereto and whether or not the
Transactions contemplated by the Transaction Documents are consummated. Each of
the Loan Parties also agrees not to assert any claim against any Indemnified
Party, or any of their respective officers, directors, employees, attorneys and
agents, on any theory of liability for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Transaction
Documents or any of the transactions contemplated thereunder or hereunder.
(c) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Transaction Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Debt Coordinator or any Bank, in its
sole discretion (and subject to reimbursement, in case of payment by the Debt
Coordinator, under Section 9.07).
(d) Without prejudice to the survival of any other agreement of any Loan
Party hereunder or under any other Transaction Document, the agreements and
obligations of the Loan Parties contained in this Section 11.08 shall survive
the payment in full of all amounts payable hereunder, under the Bank Facilities
and under any of the other Transaction Documents.
84
Section 11.09 Register. The Debt Coordinator shall maintain at its address
referred to in the signature pages hereof register for the recordation of the
names and addresses of the Banks and the commitments of the Banks and other
financial institutions under each Bank Facility from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Loan Parties, the Debt
Coordinator, the Agents and the Banks shall treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Loan Parties,
the Agents, the Debt Coordinator or any Bank at any reasonable time and from
time to time upon reasonable prior notice.
Section 11.10 Waiver of Jury Trial. Each of the parties hereto irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to
this Agreement or any of the Transaction Documents or the actions of the Debt
Coordinator, any of the Agents, the Steering Committee, the Rexair Collateral
Agent, the Collateral Trustees or any Bank in the negotiation, administration,
performance or enforcement hereof or thereof.
[The rest of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
Contact Information for Notices Signatures
------------------------------- ----------
U.S. Industries, Inc. As Obligors and Loan Parties:
▇▇▇▇▇▇▇▇ Point - West Tower
Suite 1108 U.S. INDUSTRIES, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ USI AMERICAN HOLDINGS, INC.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer USI ATLANTIC CORP.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ USI GLOBAL CORP.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ REXAIR, INC.
REXAIR HOLDINGS, INC.
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President As Loan Parties:
and General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ ASTERIA COMPANY
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ BATHCRAFT, INC.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇▇ MANUFACTURING CORP.
CARLSBAD CORP.
COMPAX CORP.
ELJER INDUSTRIES, INC.
ELJER PLUMBINGWARE, INC.
ENVIRONMENTAL ENERGY COMPANY
EZ HOLDINGS, INC.
▇▇▇▇ CONCRETE PRODUCTS, INC.
GATSBY SPAS, INC.
HL CAPITAL CORP.
JACUZZI INC.
JACUZZI WHIRLPOOL BATH, INC.
JUSI HOLDINGS, INC.
KLI, INC.
KRIKLES CANADA U.S.A., INC.
KRIKLES EUROPE U.S.A., INC.
KRIKLES, INC.
LOKELANI DEVELOPMENT
CORPORATION
LUXOR INDUSTRIES INC.
MAILI KAI LAND DEVELOPMENT
CORPORATION
MOBILITE, INC.
NEPCO OF AUSTRALIA, INC.
NEPCO OF CANADA, INC.
NEPCO OF FORD HEIGHTS, INC.
NEPCO OF ▇▇▇▇▇▇, INC.
▇▇▇▇▇▇ UNIVERSAL HOLDINGS INC.
OUTDOOR PRODUCTS LLC
PH PROPERTY DEVELOPMENT COMPANY
PLC REALTY INC.
REDMONT, INC.
SANITARY-DASH MANUFACTURING
CO., INC.
SHELBY PROPERTIES, INC.
STRATEGIC CAPITAL MANAGEMENT,
INC.
STRATEGIC MEMBERSHIP COMPANY
STREAMWOOD CORPORATION
SUNDANCE SPAS, INC.
TA LIQUIDATION CORP.
TRIMFOOT CO.
TT LIQUIDATION CORP.
UGE LIQUIDATION INC.
UNITED STATES BRASS CORPORATION
USI CAPITAL, INC.
USI FUNDING, INC.
USI PROPERTIES, INC.
USI REALTY CORP.
ZURCO, INC.
ZURNACQ OF CALIFORNIA, INC.
▇▇▇▇ (CAYMAN ISLANDS), INC.
▇▇▇▇ CONSTRUCTORS, INC.
▇▇▇▇ DEVCO, INC.
▇▇▇▇ ▇▇▇ SERVICES, INC.
▇▇▇▇ GOLF HOLDING CORPORATION
▇▇▇▇ INDUSTRIES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President/
Senior Vice President
Bank of America, N.A. BANK OF AMERICA, N.A., as Debt
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ Agent,
Fifth Floor Rexair Agent, Rexair Collateral
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Agent, USI Bank and Rexair Bank
Credit Contact:
▇▇▇▇▇▇ ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ -----------------------------
Fax: (▇▇▇)▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇
Title: Managing Director
The Collateral Trustees
Contact Information for Notices Signatures
------------------------------- ----------
Wilmington Trust Company WILMINGTON TRUST COMPANY,
▇▇▇▇▇▇ Square North not in its individual capacity
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. but solely as Collateral
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Trustee (solely with respect to
Attn: Corporate Trust Division Sections 2.06(a) and 10.01(e))
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, not in his
▇▇▇▇▇▇ Square North individual capacity but solely
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. as Collateral Trustee (solely
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ with respect to Sections 2.06(a)
and 10.01(e))
Signed /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
---------------------------------
--------------------------------- ABN AMRO BANK N.V.
---------------------------------
Fax:
-------------------------
Attn: By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- -----------------------------------
Tel: Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- Title: Group Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Group Vice President
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
▇▇▇▇▇▇▇▇ ▇▇▇▇ BANCA NAZIONALE DEL LAVORO SPA
--------------------------------- -----------------------------------
---------------------------------
---------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------- By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Attn:---------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
-------------------------
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
The Bank of New York The Bank of New York
One Wall Street 16th flr
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ --------------------------------
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ The Bank of Nova Scotia
--------------------------------- -----------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------- By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ --------------------------------
-------------------------- Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: MANAGING DIRECTOR
--------------------------
Tel: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
1251 Avenue of the Americas Bank of Tokyo Mitsubishi Trust
--------------------------------- Company
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ---------------------------------
---------------------------------
--------------------------------- By: /s/ ▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ --------------------------------
---------------------- Name: ▇▇▇ ▇▇▇▇▇
Attn: T. Angus/▇. ▇▇▇▇▇▇▇▇ Title: Vice President
-----------------------
Tel: ▇▇▇-▇▇▇-▇▇▇▇
-----------------------
Contact Information for Notices Signatures
------------------------------- ----------
BNP Paribas BNP Paribas
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ By /s/ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ Ritlier -------------------------------
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Name: ▇▇ ▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director Merchant
Banking Group
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
--------------------------------- Comerica Bank
---------------------------------
---------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------- ------------------------------
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- Title: Vice President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
Credit Suisse First Boston CREDIT SUISSE FIRST ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇ --------------------------------
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Director
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
Deutsche Bank Trust Company Deutsche Bank AG New York Branch
Americas -----------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. Folfe
Fax: ▇▇▇ ▇▇▇-▇▇▇▇ --------------------------------
--------------------------- Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Title: Vice President
---------------------------
Tel: ▇▇▇ ▇▇▇-▇▇▇▇
---------------------------
Contact Information for Notices Signatures
------------------------------- ----------
Deutsche Bank Trust Company Deutsche Bank AG New York Branch
Americas -----------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇ --------------------------------
--------------------------- Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Title: Director
---------------------------
Tel: ▇▇▇ ▇▇▇-▇▇▇▇
---------------------------
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
Deutsche Bank Trust Company Deutsche Bank Trust Company
Americas Americas
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ -----------------------------------
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇ --------------------------------
--------------------------- Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Title: Vice President
---------------------------
Tel: ▇▇▇ ▇▇▇-▇▇▇▇
---------------------------
Contact Information for Notices Signatures
------------------------------- ----------
c/o Watershed Asset Management, LLC Farallon Jacuzzi, LLC
Sub-Advisor -----------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By: Farallon Capital Management,
Attn: ▇▇▇▇ ▇▇▇▇▇▇ LLC
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ -------------------------------
▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ By /s/ ▇▇▇▇ Mehrly
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
Authorized Co-Signatory:
Watershed Asset Management, LLC
as Sub-Advisor
-----------------------------------
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Managing Member
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
Fleet National Bank Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇. -----------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ General Electric Capital
--------------------------------- Corporation
--------------------------------- -----------------------------------
---------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------- By /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attn: --------------------------------
--------------------------- Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Title: DULY AUTHORIZED SIGNATORY
---------------------------
The Banks
Contact Information for Notices Signatures
------------------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GE Capital CFE, Inc.
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------- By /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attn: -------------------------------
--------------------------- Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Title: DULY AUTHORIZED SIGNATORY
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The Banks
Contact Information for Notices Signatures
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▇▇▇▇▇▇▇, Sachs & Co. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
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▇▇ ▇▇▇▇▇ ▇▇ - ▇▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By /s/ [Illegible]
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Name:
--------------------------- Title:
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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The Banks
Contact Information for Notices Signatures
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, HSBC Bank USA HSBC BANK USA
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▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ / 03
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------- Title: Vice President
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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The Banks
Contact Information for Notices Signatures
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▇▇▇▇ ▇▇▇▇ JPMorgan Chase Bank
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------- By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: --------------------------------
--------------------------- Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Title: Vice President
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The Banks
Contact Information for Notices Signatures
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Mariner Investment Group MARINER LDC
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ --------------------------------
--------------------------------- Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Title: Director
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Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
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Tel: ▇▇▇-▇▇▇-▇▇▇▇
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The Banks
Contact Information for Notices Signatures
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Whippoorwill Associates, Inc. The President & Fellows of Harvard
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ College Ref. Harvard Special
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Situations Account
By: Whippoorwill Associates,
Attn. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated
Tel (▇▇▇) ▇▇▇-▇▇▇▇ Its: Authorized Agent and Signatory
Fax (▇▇▇) ▇▇▇-▇▇▇▇/3269
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By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
The Banks
Contact Information for Notices Signatures
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ROYAL BANK OF CANADA
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---------------------------------
---------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------- By /s/ ▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ --------------------------------
--------------------------- Name: ▇.▇.▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Title: Vice President
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RBC Financial Group
RBC Banking
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The Banks
Contact Information for Notices Signatures
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Standard Federal Bank M0900-330 Standard Federal Bank N.A.
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▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇.
---------------------------------
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------- By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ --------------------------------
--------------------------- Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: First Vice President
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Tel: ▇▇▇-▇▇▇-▇▇▇▇
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The Banks
Contact Information for Notices Signatures
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ Funding Trust I
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Attn: ▇▇▇ Nq Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- Title: Vice President
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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The Banks
Contact Information for Notices Signatures
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MITSUI BANKING CORPORATION
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------
--------------------------------- By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ --------------------------------
------------------------ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Joint General Manager
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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