EXECUTION COPY
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 27, 2001
Among
ACCURIDE CORPORATION
and
ACCURIDE CANADA INC.
as Borrowers
-- ---------
and
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Bank and Swing Line Bank
-- ------- -------- ------- ------- ---- --- ----- ---- ----
and
CITICORP USA, INC.
as Administrative Agent
-- -------------- -----
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Arranger
-- --------
and
BANKERS TRUST COMPANY
as Syndication Agent
-- ----------- -----
and
▇▇▇▇▇ FARGO BANK N.A.
as Documentation Agent
-- ------------- -----
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms............................................................2
SECTION 1.02. Computation of Time Periods.....................................................31
SECTION 1.03. Accounting Terms................................................................31
SECTION 1.04. Currency Equivalent.............................................................31
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances....................................................................31
SECTION 2.02. Making the Advances.............................................................33
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit..............35
SECTION 2.04. Repayment of Advances...........................................................36
SECTION 2.05. Termination or Reduction of the Commitments.....................................38
SECTION 2.06. Prepayments.....................................................................38
SECTION 2.07. Interest........................................................................40
SECTION 2.08. Fees............................................................................41
SECTION 2.09. Conversion of Advances..........................................................42
SECTION 2.10. Increased Costs, Etc............................................................42
SECTION 2.11. Payments and Computations.......................................................44
SECTION 2.12. Taxes...........................................................................45
SECTION 2.13. Sharing of Payments, Etc........................................................49
SECTION 2.14. Use of Proceeds.................................................................49
SECTION 2.15. Defaulting Lenders..............................................................50
ARTICLE III CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to the Initial Extension of Credit.........................52
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance.............................56
SECTION 3.03. Determinations Under Sections 3.01and 3.04......................................56
SECTION 3.04. Conditions Precedent to the Effectiveness of this Agreement.....................56
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of Each Borrower.................................60
ARTICLE V COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants...........................................................67
SECTION 5.02. Negative Covenants..............................................................73
SECTION 5.03. Reporting Requirements..........................................................81
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SECTION 5.04. Financial Covenants.............................................................85
ARTICLE VI GUARANTY
SECTION 6.01. Guaranty........................................................................87
SECTION 6.02. Guaranty Absolute...............................................................87
SECTION 6.03. Waivers and Acknowledgments.....................................................88
SECTION 6.04. Subrogation.....................................................................89
SECTION 6.05. Continuing Guaranty; Assignments................................................90
ARTICLE VII EVENTS OF DEFAULT
SECTION 7.01. Events of Default...............................................................90
ARTICLE VIII THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action........................................................92
SECTION 8.02. Administrative Agent's Reliance, Etc............................................92
SECTION 8.03. Citicorp and Affiliates.........................................................93
SECTION 8.04. Lender Party Credit Decision....................................................93
SECTION 8.05. Indemnification.................................................................93
SECTION 8.06. Successor Administrative Agents.................................................94
SECTION 8.07. Arranger, Syndication Agent and Documentation Agent.............................95
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Amendments, Etc.................................................................95
SECTION 9.02. Notices, Etc....................................................................96
SECTION 9.03. No Waiver; Remedies.............................................................96
SECTION 9.04. Costs, Expenses.................................................................97
SECTION 9.05. Right of Set-off................................................................98
SECTION 9.06. Binding Effect..................................................................98
SECTION 9.07. Assignments and Participations..................................................98
SECTION 9.08. Replacements of Lenders Under Certain Circumstances............................101
SECTION 9.09. Execution in Counterparts......................................................101
SECTION 9.10. No Liability of the Issuing Bank...............................................101
SECTION 9.11. Confidentiality................................................................102
SECTION 9.12. Release of Collateral..........................................................102
SECTION 9.13. Jurisdiction, Etc..............................................................102
SECTION 9.14. Judgment.......................................................................103
SECTION 9.15. Reference to and Effect on the Loan Documents..................................103
SECTION 9.16. Governing Law..................................................................103
SECTION 9.17. Waiver of Jury Trial...........................................................103
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SCHEDULES
Schedule I Commitments and Applicable Lending Offices
Schedule II Subsidiary Guarantors
Schedule III Existing Hedge Agreements
Schedule 3.01(d) Original
Credit Agreement Surviving Debt
Schedule 3.01(l) Restructuring Memorandum
Schedule 4.01(a) Investor Group
Schedule 4.01(b) Subsidiaries
Schedule 4.01(d) Government and Third Party Approvals
Schedule 4.01(l) Environmental Issues
Schedule 4.01(p) Existing Debt
Schedule 4.01(q) Owned Real Property
Schedule 4.01(r) Leased Real Property
Schedule 4.01(s) Leases of Real Property
Schedule 4.01(t) Intellectual Property
Schedule 5.01(n) Properties
Schedule 5.02(a) Existing Liens
Schedule 5.02(e) Existing Investments
EXHIBITS
Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit A-4 Form of Term C Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of U.S. Security Agreement
Exhibit D-2 - Form of Pledge Agreement
Exhibit D-3 - Form of Canadian Security Agreement
Exhibit E - Form of Subsidiaries Guaranty
Exhibit F - Form of Opinion of Borrowers' Counsel
Exhibit G - Form of Opinion of Borrowers' General Counsel
Exhibit H - Form of Opinion of Canadian Borrower's Canadian Counsel
Exhibit I - Intentionally Omitted
Exhibit J - Form of Reliance Letter
Exhibit K - Form of Mortgage
EXECUTION COPY
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT dated as of July 27,
2001 (this "AGREEMENT") among
ACCURIDE CORPORATION, a Delaware corporation (the
"U.S. BORROWER"), and ACCURIDE CANADA INC., a corporation organized and existing
under the law of the Province of Ontario (the "CANADIAN BORROWER", and, together
with the U.S. Borrower, the "BORROWERS"), the banks, financial institutions and
other institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "INITIAL LENDERS"), CITIBANK, N.A., a national banking association
("CITIBANK"), as the initial issuing bank (the "INITIAL ISSUING BANK"), CITICORP
USA, INC., a Delaware corporation ("CITICORP"), as the swing line bank (the
"SWING LINE BANK") and as administrative agent (together with any successor
appointed pursuant to Article VIII, the "ADMINISTRATIVE AGENT") for the Lender
Parties (as hereinafter defined), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., as arranger (the
"ARRANGER") for the Facilities (as hereinafter defined), BANKERS TRUST COMPANY
("BANKERS TRUST), as syndication agent ("SYNDICATION AGENT") for the Lender
Parties and ▇▇▇▇▇ FARGO BANK N.A. ("▇▇▇▇▇ FARGO"), as documentation agent
("DOCUMENTATION AGENT") for the Lender Parties.
PRELIMINARY STATEMENTS:
(1) The Borrowers entered into a
Credit Agreement dated as of
January 21, 1998 (the "ORIGINAL
CREDIT AGREEMENT") with the banks, financial
institutions and other institutional lenders party thereto as Lenders (as
defined therein), Citibank as Initial Issuing Bank, Citicorp as Swing Line Bank
and as Administrative Agent, Citicorp Securities, Inc. as arranger for the
Facilities (as defined therein), Bankers Trust Company as Syndication Agent and
▇▇▇▇▇ Fargo Bank N.A. as Documentation Agent (such Lenders, Initial Issuing Bank
and Swing Line Bank being the "ORIGINAL LENDER PARTIES").
(2) The Borrowers entered into an Amended and Restated
Credit
Agreement dated as of April 16, 1999 (the "EXISTING
CREDIT AGREEMENT") with the
banks, financial institutions and other institutional lenders party thereto as
Lenders (as defined therein), Citibank as Initial Issuing Bank, Citicorp as
Swing Line Bank and as Administrative Agent, the Arranger as arranger for the
Term C Facility (as defined therein), Bankers Trust as Syndication Agent and
▇▇▇▇▇ Fargo as Documentation Agent (such Lenders, Initial Issuing Bank and Swing
Line Bank being the "EXISTING LENDER PARTIES").
(3) The Borrowers have requested that the Existing Lender Parties
amend and restate the Existing
Credit Agreement so that, among other things, (i)
the Revolving Credit Facility be permanently reduced to $100,000,000, (ii) the
U.S. Borrower and its Restricted Subsidiaries (other than the Canadian Borrower)
grant a first priority security interest in all of their assets and property to
secure the Obligations of the Borrowers under this Agreement, (iii) the Canadian
Borrower grant a first priority security interest in all of its assets and
property to secure its Obligations under the Term A Facility, and (iv) certain
changes be made to the Performance Levels and various covenants of the
applicable Borrowers.
(4) The Existing Lender Parties have indicated their willingness to
agree to so amend and restate the Existing
Credit Agreement on the terms and
conditions of this Agreement.
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree that
the Existing Credit Agreement is amended and restated in its entirety to read as
follows:
ARTICLE 1.
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):
"ACCURIDE CUYAHOGA" means Accuride Cuyahoga Falls, Inc., a Delaware
corporation.
"ACCURIDE VENTURES" means Accuride Ventures, Inc., a Delaware
corporation.
"ACQUISITION" means the acquisition by Hubcap of approximately 90%
of the U.S. Borrower from ▇▇▇▇▇▇ Dodge pursuant to the Stock Purchase
Agreement.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank
at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No.
3685-2248, Reference: Accuride.
"ADVANCE" means a Term A Advance, a Term B Advance, a Term C
Advance, a Revolving Credit Advance, a Swing Line Advance or a Letter of
Credit Advance.
"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, in the case of any Lender which is an investment fund,
(i) the investment advisor thereof, and (ii) any other investment fund
having the same investment advisor), or is a director or officer of such
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 Stock of such Person or to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"AKW ACQUISITION" means a series of acquisitions made by the U.S.
Borrower pursuant to the AKW Acquisition Agreement.
"AKW ACQUISITION AGREEMENT" means the Purchase Agreement dated as of
April 1, 1999 (as amended, supplemented or otherwise modified in
accordance with its terms) among Accuride Ventures, the U.S. Borrower and
KAC.
"AKW INFORMATION MEMORANDUM" means the information memorandum dated
March 31, 1999, used by the Arranger in connection with the syndication of
the Term C Commitments.
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"AKW LLC" means AKW General Partner L.L.C., a Delaware limited
liability company.
"AKW LLC AGREEMENT" means the Limited Liability Company Agreement of
AKW LLC dated as of May 1, 1997, as modified pursuant to the AKW
Acquisition Agreement, between Accuride Ventures and the U.S. Borrower
which governs the formation and operation of AKW LLC, as amended,
supplemented or otherwise modified from time to time in accordance with
the terms hereof and thereof.
"AKW LP" means AKW L.P., a Delaware limited partnership.
"AKW LP AGREEMENT" means the Limited Partnership Agreement of AKW LP
dated as of May 1, 1997, as modified pursuant to the AKW Acquisition
Agreement, among AKW LLC, Accuride Ventures and the U.S. Borrower as
amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"APPLICABLE LENDING OFFICE" means, with respect to (a) each Term A
Lender, such Lender Party's Canadian Lending Office in the case of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office in the case
of a Eurodollar Rate Advance and (b) each other Lender Party, such Lender
Party's Domestic Lending Office in the case of a Base Rate Advance and
such Lender Party's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"APPLICABLE MARGIN" means, for Advances outstanding under each of
the Term A Facility, the Term B Facility, the Term C Facility and the
Revolving Credit Facility, a percentage per annum determined by reference
to the Performance Level as set forth for each such Facility below:
(a) for Advances outstanding under the Term A Facility:
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PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
------------------------------------------------------------------------------
I 1.500% 2.500%
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II 1.500% 2.500%
------------------------------------------------------------------------------
III 1.750% 2.750%
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IV 2.250% 3.250%
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V 2.250% 3.250%
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VI 2.250% 3.250%
------------------------------------------------------------------------------
(b) for Advances outstanding under the Term B Facility:
------------------------------------------------------------------------------
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
------------------------------------------------------------------------------
I 2.000% 3.000%
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II 2.000% 3.000%
------------------------------------------------------------------------------
III 2.250% 3.250%
------------------------------------------------------------------------------
IV 2.750% 3.750%
------------------------------------------------------------------------------
V 2.750% 3.750%
------------------------------------------------------------------------------
VI 2.750% 3.750%
------------------------------------------------------------------------------
(c) for Advances outstanding under the Term C Facility:
------------------------------------------------------------------------------
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
------------------------------------------------------------------------------
A 2.500% 3.500%
------------------------------------------------------------------------------
4
------------------------------------------------------------------------------
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
------------------------------------------------------------------------------
B 3.000% 4.000%
------------------------------------------------------------------------------
C 3.000% 4.000%
------------------------------------------------------------------------------
(d) for Advances outstanding under the Revolving Credit Facility:
------------------------------------------------------------------------------
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
------------------------------------------------------------------------------
I 1.500% 2.500%
------------------------------------------------------------------------------
II 1.500% 2.500%
------------------------------------------------------------------------------
III 1.750% 2.750%
------------------------------------------------------------------------------
IV 2.250% 3.250%
------------------------------------------------------------------------------
V 2.250% 3.250%
------------------------------------------------------------------------------
VI 2.250% 3.250%
------------------------------------------------------------------------------
For outstanding Advances under each of the Facilities, the Applicable
Margin for each Base Rate Advance and each Eurodollar Rate Advance shall,
(i) in the case of Advances other than Term C Advances, for the first six
months following the Closing Date, be determined by reference to
Performance Level V, (ii) in the case of Term C Advances, for the first
six months following the date of the Term C Advances hereunder, be
determined by reference to Performance Level B, and (iii) in each case
thereafter, the Applicable Margin for each Base Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time and the Applicable Margin for each Eurodollar Rate Advance shall be
determined by reference to the Performance Level in effect on the first
day of each Interest Period for such Advance. Changes in the Applicable
Margin resulting from changes in the Performance Level shall become
effective (for purposes of this definition only, the date of such
effectiveness being the "EFFECTIVE DATE") as of the first day following
the last day of the most recent Fiscal Quarter or Fiscal Year for which
(A) financial statements are delivered to the Administrative Agent
pursuant to Section 5.03(b)(ii) or (c) and (B) a certificate of the chief
financial officer of the U.S. Borrower is delivered by the U.S. Borrower
to the Administrative Agent setting forth, with respect to such financial
statements, the then-applicable Performance Level and the basis of the
calculations therefor, and shall remain in effect until the next change to
be effected pursuant to this definition; PROVIDED that, (i) if either
Borrower shall have made any payments in respect of interest during the
period (for purposes of this definition only, the "INTERIM PERIOD") from
and including the Effective Date to the day on which any change in
Performance Level is determined as provided above, then the amount of the
next such payment of interest due by such Borrower on or after such day
shall be increased or decreased by an amount equal to any underpayment or
overpayment so made by such Borrower during such Interim Period and (ii)
each determination of the Performance Level pursuant to this definition
shall be made with respect to the Measurement Period ending at the end of
the fiscal period covered by the relevant financial statements.
"APPLICABLE PERCENTAGE" means (a) for the six month period
immediately following the Closing Date, a rate per annum equal to 0.425%
and (b) thereafter, a rate per annum determined by reference to the
applicable Performance Level as set forth below:
5
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PERFORMANCE LEVEL COMMITMENT FEE
-------------------------------------------------------
I 0.425%
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II 0.425%
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III 0.425%
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IV 0.425%
-------------------------------------------------------
V 0.425%
-------------------------------------------------------
VI 0.500%
-------------------------------------------------------
The Applicable Percentage determined pursuant to clause (b) above shall be
determined by reference to the Performance Level in effect from time to
time. Changes in the Applicable Percentage resulting from changes in the
Performance Level shall become effective (for purposes of this definition
only, the date of such effectiveness being the "EFFECTIVE DATE") as of the
first day following the last day of the most recent Fiscal Quarter or
Fiscal Year for which (A) financial statements are delivered to the
Administrative Agent pursuant to Section 5.03(b)(ii) or (c) and (B) a
certificate of the chief financial officer of the U.S. Borrower is
delivered by the U.S. Borrower to the Administrative Agent setting forth,
with respect to such financial statements, the then-applicable Performance
Level and the basis of the calculations therefor, and shall remain in
effect until the next change to be effected pursuant to this definition;
PROVIDED that, (i) if the U.S. Borrower shall have made any payments in
respect of commitment fees during the period (for purposes of this
definition only, the "INTERIM PERIOD") from the Effective Date to the day
on which any change in Performance Level is determined as provided above,
then the amount of the next such payment in respect of commitment fees due
by such Borrower on or after such day shall be increased or decreased by
an amount equal to any underpayment or overpayment so made by such
Borrower during such Interim Period and (ii) each determination of the
Performance Level pursuant to this definition shall be made with respect
to the Measurement Period ending at the end of the fiscal period covered
by the relevant financial statements.
"APPLICABLE RATE" has the meaning specified in Section 2.11(d).
"APPROPRIATE BORROWER" means, (a) with respect to the Term A
Facility, the Canadian Borrower and (b) with respect to the Term B
Facility, the Term C Facility, the Revolving Credit Facility, the Swing
Line Facility or the Letter of Credit Facility, the U.S. Borrower.
"APPROPRIATE LENDER" means, at any time, with respect to (a) any of
Term A Facility, the Term B Facility, the Term C Facility or the Revolving
Credit Facility, a Lender that has a Commitment with respect to such
Facility at such time, (b) the Letter of Credit Facility, (i) the Issuing
Bank and (ii) the other Revolving Credit Lenders and (c) the Swing Line
Facility, (i) the Swing Line Bank and (ii) if the other Revolving Credit
Lenders have made Swing Line Advances pursuant to Section 2.02(b) that are
outstanding at such time, each such other Revolving Credit Lender.
"ARRANGER" has the meaning specified in the recital of parties to
this Agreement.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted by
the Administrative Agent and the Appropriate Borrower, in accordance with
Section 9.07 and in substantially the form of Exhibit C hereto.
"AVAILABLE LC AMOUNT" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
6
"BANK HEDGE AGREEMENT" means any interest rate Hedge Agreement
permitted under Article V that is entered into by and between the U.S.
Borrower and any Hedge Bank.
"BANKERS TRUST" has the meaning specified in the recital of parties
to this Agreement.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) (i) with respect to Term B Advances, the Term C Advances
and Revolving Credit Advances, the rate of interest announced
publicly by Citibank in
New York,
New York, from time to time, as
Citibank's base rate and (ii) with respect to Term A Advances, the
variable rate of interest per annum specified from time to time by
Citibank as the reference rate of interest established or quoted
from time to time by Citibank Canada and then in effect for
determining interest rates on United States dollar denominated
commercial loans made by Citibank Canada in Canada;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there
is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2
of 1% per annum, PLUS (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of
New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three
New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during such
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the
United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"BORROWERS" has the meaning specified in the recital of parties to
this Agreement.
"BORROWER'S ACCOUNT" means (i) with respect to the Canadian
Borrower, the account of the Canadian Borrower maintained by the Canadian
Borrower with Citibank Canada at its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ West, 10th
Floor, Toronto, Ontario, Canada, M5J2M3, Account No. 2/012752/019, Re:
Accuride Canada Inc. and (ii) with respect to the U.S. Borrower, the
account of the U.S. Borrower maintained by the U.S. Borrower with Citibank
at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No.
4075-2127, Re:
Accuride Corporation.
7
"BORROWING" means a Term A Borrowing, a Term B Borrowing, a Term C
Borrowing, a Revolving Credit Borrowing or a Swing Line Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in
New York City and with respect
to notices and determinations in connection with, and payments of
principal and interest on, the Term A Advances, on which banks are not
required or authorized to close in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, and if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"CANADIAN BORROWER" has the meaning specified in the recital of
parties to this Agreement.
"CANADIAN LENDING OFFICE" means, with respect to any Term A Lender,
the office of a Subsidiary or Affiliate of such Lender Party specified as
its "Canadian Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Canadian Borrower and
the Administrative Agent.
"CANADIAN SECURITY AGREEMENT" has the meaning specified in Section
3.04(b)(iii).
"CAPITAL EXPENDITURES" means, for any Person for any period, the
sum, without duplication, of all expenditures made, directly or indirectly
(whether paid in cash or accrued as liabilities and including in all
events all amounts expended or capitalized under Capitalized Leases, but
excluding any amount representing capitalized interest), by such Person or
any of its Restricted 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, PROVIDED that
Capital Expenditures shall not include (without duplication) (a) any
expenditures made in connection with the replacement, substitution, repair
or restoration of any assets to the extent financed (i) with insurance
proceeds received by the U.S. Borrower or any of its Restricted
Subsidiaries on account of the loss of, or any damage to, the assets being
replaced, substituted for, repaired or restored or (ii) with the proceeds
of any compensation awarded to the U.S. Borrower or any of its Restricted
Subsidiaries as a result of the taking, by eminent domain or condemnation,
of the assets being replaced or substituted for, (b) any expenditures for
the purchase price of any equipment that is purchased simultaneously with
the trade-in of any existing equipment by the U.S. Borrower or any of its
Restricted Subsidiaries to the extent that the gross amount of such
purchase price is reduced by any credit granted by the seller of such
equipment for the equipment being traded in, (c) any expenditures for the
purchase price of any property, plant or equipment purchased within one
year of the consummation of any sale, lease, transfer or other disposition
of any asset of the U.S. Borrower or any of its Restricted Subsidiaries in
accordance with the provisions of Section 5.02(d) to the extent purchased
with Net Cash Proceeds of such sale, lease, transfer or other disposition,
or (d) any acquisition by the U.S. Borrower or any of its Restricted
Subsidiaries (by purchase or otherwise) of all or substantially all of the
business, property or fixed assets of, or the stock or other evidence of
beneficial ownership of, any Restricted Subsidiary or any division,
business unit or line of business of any Restricted Subsidiary in
accordance with Section 5.02(e).
"CAPITALIZED LEASES" means all leases that have been or should be,
in accordance with GAAP, recorded as capitalized leases.
"CASH COLLATERAL ACCOUNT" has the meaning specified in the Pledge
Agreement.
8
"CASH EQUIVALENTS" means (i) marketable securities (a) issued or
directly and unconditionally guaranteed as to interest and principal by
the United States government or (b) issued by any agency of the United
States of America the obligations of which are backed by the full faith
and credit of the United States, in each case maturing within 24 months
after the date of acquisition thereof; (ii) marketable direct obligations
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof, in
each case maturing within 24 months after the date of acquisition thereof
and having, at the time of the acquisition thereof, an investment grade
rating generally obtainable from either Standard & Poor's Ratings Group
("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S"); (iii) commercial
paper maturing no more than 12 months from the date of creation thereof
and having, at the time of the acquisition thereof, a rating of a least
A-2 from S&P or at least P-2 from Moody's; (iv) domestic and eurodollar
certificates of deposit or bankers' acceptances maturing within 24 months
after the date of acquisition thereof and issued or accepted by any Lender
or by any other commercial bank that has combined capital and surplus of
not less than $250,000,000; (v) repurchase agreements with a term of not
more than 30 days for underlying securities of the types described in
clauses (i), (ii) and (iv) above entered into with any commercial bank
meeting the requirements specified in clause (iv) above or with any
securities dealer of recognized national standing, (vi) shares of
investment companies that are registered under the Investment Company Act
of 1940 and that invest solely in one or more of the types of investments
referred to in clauses (i) through (v) above, and (vii) in the case of any
Restricted Subsidiary which is not a U.S. Person, high quality, short-term
liquid Investments made by such Restricted Subsidiary in the ordinary
course of managing its surplus cash position in a manner consistent with
past practices.
"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, and shall be deemed to have occurred, if:
(i) (a) the Investor Group shall at any time not own, in the aggregate,
directly or indirectly, beneficially and of record, at least 35% of the
outstanding Voting Stock of U.S. Borrower (other than as the result of one
or more widely distributed offerings of common stock of the U.S. Borrower,
in each case whether by the U.S. Borrower or by the Investor Group) and/or
(b) any person, entity or "group" (within the meaning of Section 13(d) or
14 (d) of the Exchange Act) shall at any time have acquired direct or
indirect beneficial ownership of a percentage of the outstanding Voting
Stock of U.S. Borrower that exceeds the percentage of such Voting Stock
then beneficially owned, in the aggregate, by the Investor Group, UNLESS,
in the case of either clause (a) or (b) above, the Investor Group shall,
at the relevant time, have the collective right or ability, either by
contract or pursuant to a written proxy or other written evidence of
voting power, to elect or designate for election a majority of the Board
of Directors of the U.S. Borrower; and/or (ii) at any time Continuing
Directors shall not constitute a majority of the Board of Directors of the
U.S. Borrower. For purposes of this definition, "Continuing Director"
means, as of any date of determination, an individual (A) who is a member
of the Board of Directors of the U.S. Borrower on the Closing Date, (B)
who, as of such date of determination, has been a member of such Board of
Directors for at least the 12 preceding months (or, if such date of
determination occurs during the period comprising the first 12 months
after the Closing Date, since the Closing Date), or (C) who has been
nominated to be a member of such Board of Directors, directly or
indirectly, by KKR or its Affiliates, or Persons nominated by KKR or its
Affiliates, or who has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.
9
"CITIBANK" has the meaning specified in the recital of parties to
this Agreement.
"CITICORP" has the meaning specified in the recital of parties to
this Agreement.
"CLOSING DATE" means January 21, 1998, the date on which the Initial
Extension of Credit occurred under the Original Credit Agreement.
"COLLATERAL" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
"COLLATERAL DOCUMENTS" means the Pledge Agreement, the U.S. Security
Agreement, the Canadian Security Agreement, the Mortgages, and any other
agreement that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.
"COLUMBIA GP" means Accuride Columbia General Partnership, a
Delaware general partnership.
"COLUMBIA GP AGREEMENT" means the Amended and Restated Partnership
Agreement, dated as of June 29, 1999 by, Accuride Ventures and Accuride
Columbia Facilities Management Corporation, a Delaware corporation.
"COMMITMENT" means a Term A Commitment, a Term B Commitment, a Term
C Commitment, a Revolving Credit Commitment or a Letter of Credit
Commitment.
"CONFIDENTIAL INFORMATION" has the meaning specified in Section 9.11.
"CONSENT" means the Consent attached hereto, executed by the
Subsidiary Guarantors.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.09 or 2.10.
"CUMULATIVE AVAILABLE CONSOLIDATED NET INCOME" means, as of any date
of determination, Consolidated Net Income of the U.S. Borrower and its
Restricted Subsidiaries less cash dividends paid with respect to preferred
stock for the period (taken as one accounting period) commencing on the
Closing Date and ending on the last day of the most recent Fiscal Quarter
for which financial statements have been delivered to the Lender Parties
pursuant to Section 5.03(b)(ii) or (c).
"CURRENT ASSETS" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a reserve
is proper in accordance with GAAP, but excluding the current portion of
any deferred income taxes.
"CURRENT LIABILITIES" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one year
after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period of
more than one year from such date) and (b) all other
10
items (including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person, but excluding
the current portion of any deferred income taxes.
"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services (other
than trade payables and accrued expenses incurred in the ordinary course
of such Person's business) that in accordance with GAAP would be shown on
the liability side of the balance sheet of such Person, (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), it being understood
that if such Person has not assumed or otherwise become liable for such
Obligations, the amount of the Debt of such Person in connection therewith
shall be limited to the lesser of the face amount of the related
Obligations or the fair market value of all property of such Person
securing such Obligations, (e) all Obligations of such Person as lessee
under Capitalized Leases, (f) all Obligations, contingent or otherwise, of
such Person under acceptance, letter of credit or similar facilities
issued for the account of such Person, (g) all Obligations of such Person
in respect of Hedge Agreements, (h) all Debt of others referred to in
clauses (a) through (g) above or clause (i) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly
or indirectly by such Person through an agreement (i) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of
such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property,
or to purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such Debt
against loss, (iii) to supply funds to or in any other manner invest in
the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (iv) otherwise to assure a creditor against loss; PROVIDED
that any such guaranteed Obligations shall not include endorsements of
instruments for deposit or collection in the ordinary course of business,
and (i) all Debt referred to in clauses (a) through (h) 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 Debt; PROVIDED that the amount of Debt of such Person
under clauses (h) and (i) above shall (subject to any obligation set forth
therein) be deemed to be the principal amount of the Debt guaranteed or
secured thereby and, with respect to any Lien on property of such Person
as described in clause (i) above, if such Person has not assumed or
otherwise become liable for any such Debt, the amount of the Debt of such
Person in connection therewith shall be limited to the lesser of the face
amount of such Debt or the fair market value of all property of such
Person securing such Debt.
"DECLINED AMOUNT" has the meaning specified in Section 2.06(c).
"DECLINING LENDER" has the meaning specified in Section 2.06(c).
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to either Borrower pursuant to Section 2.01 or 2.02 at or prior to such
time which has not been made by such Lender Party or by the Administrative
Agent for the account of such Lender Party pursuant to Section 2.02(e) as
of
11
such time. In the event that a portion of a Defaulted Advance shall be
deemed made pursuant to Section 2.15(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted Advance originally
required to be made pursuant to Section 2.01 on the same date as the
Defaulted Advance so deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time which has not been so paid as
of such time, including, without limitation, any amount required to be
paid by such Lender Party to (a) the Swing Line Bank pursuant to Section
2.02(b) to purchase a portion of a Swing Line Advance made by the Swing
Line Bank, (b) the Issuing Bank pursuant to Section 2.03(c) to purchase a
portion of a Letter of Credit Advance made by the Issuing Bank, (c) the
Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any other
Lender Party pursuant to Section 2.13 to purchase any participation in
Advances owing to such other Lender Party and (e) the Administrative Agent
or the Issuing Bank pursuant to Section 8.05 to reimburse the
Administrative Agent or the Issuing Bank for such Lender Party's ratable
share of any amount required to be paid by the Lender Parties to the
Administrative Agent or the Issuing Bank as provided therein. In the event
that a portion of a Defaulted Amount shall be deemed paid pursuant to
Section 2.15(b), the remaining portion of such Defaulted Amount shall be
considered a Defaulted Amount originally required to be paid hereunder or
under any other Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party 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).
"DOCUMENTATION AGENT" has the meaning specified in the recital of
parties to this Agreement.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the U.S. Borrower and the Administrative Agent.
"DOMESTIC SUBSIDIARY" means any Subsidiary of the U.S. Borrower
which is not a Foreign Subsidiary.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of the amounts for such period of (a) Net Income PLUS
(b) to the extent included in computing Net Income, the sum (without
duplication) of (i) Interest Expense, (ii) taxes computed on the basis of
income, (iii) depreciation expense, (iv) amortization expense (including
amortization of deferred financing fees), (v) any expenses or charges
incurred in connection with any issuance of debt or equity securities
(including upfront fees payable in respect of bank facilities), (vi) any
fees and expenses related to Investments permitted pursuant to Section
5.02(e) of this Agreement, (vii) losses on asset sales, (viii)
restructuring charges or reserves, (ix) any deduction for minority
interest expense, (x) fees or expenses incurred or paid by the U.S.
Borrower or any of its Restricted Subsidiaries in connection with the
Acquisition, the financing therefor and the other transactions
contemplated hereby and thereby, (xi) any other non-cash charges, (xii)
any other
12
non-recurring charges, (xiii) currency losses and (xiv) additional
expenses in connection with labor disruptions or the potential therefor,
MINUS (c) to the extent included in computing Net Income the sum, without
duplication, of the amounts for such period of (i) any non-recurring
gains, (ii) all non-cash gains, (iii) gains on asset sales, and (iv)
currency gains, in each case of the U.S. Borrower and its Restricted
Subsidiaries, determined in accordance with GAAP for such period, PROVIDED
that, for purposes of such calculation, in the case of any Restricted
Subsidiary acquired by the U.S. Borrower or any of its Restricted
Subsidiaries following the commencement of any such period, amounts
attributable to such Restricted Subsidiary shall be calculated as though
such Restricted Subsidiary had been acquired on the first day of such
period, and PROVIDED FURTHER that, for purposes of the PROVISO in Section
5.04 only, EBITDA shall be increased by an amount of cash equity
contributions made by the Investor Group to the U.S. Borrower as set forth
therein.
"EFFECTIVE DATE" has the meaning specified in Section 3.04.
"ELIGIBLE ASSIGNEE" means (a) with respect to the Term B Facility,
the Term C Facility or the Revolving Credit Facility, (i) a Lender; (ii)
an Affiliate of a Lender; (iii) a commercial bank organized under the laws
of the United States, or any State thereof, and having total assets of at
least $3,000,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof, and
having total assets of at least $3,000,000,000; (v) a commercial bank
organized under the laws of any other country that is a member of the OECD
or has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a
political subdivision of any such country, and having total assets in
excess of $3,000,000,000, so long as such bank is acting through a branch
or agency located in the United States; (vi) the central bank of any
country that is a member of the OECD; and (vii) a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having total assets in excess of
$250,000,000; and (viii) any other Person approved by the Administrative
Agent and the U.S. Borrower, such approval not to be unreasonably withheld
or delayed, (b) with respect to the Term A Facility, (i) a bank listed on
Schedule I or II to the Bank Act (Canada), and having a combined capital
and surplus of at least $250,000,000, and, so long as no Event of Default
has occurred and is continuing, approved by the Canadian Borrower, such
approval not to be unreasonably withheld or delayed, (ii) an Affiliate of
a Lender or (iii) any other Person approved by the Administrative Agent
and the Canadian Borrower, such approval not to be unreasonably withheld
or delayed, and (c) with respect to the Letter of Credit Facility, a
Person that is an Eligible Assignee under subclause (ii), (iii) or (v) of
clause (a) of this definition and is approved by the Administrative Agent
and the U.S. Borrower, such approval not to be unreasonably withheld or
delayed; PROVIDED, HOWEVER, that neither any Loan Party nor any Affiliate
of a Loan Party shall qualify as an Eligible Assignee under this
definition.
"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.
13
"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.
"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. Section references to ERISA are to ERISA as
in effect at the date of this Agreement and any subsequent provisions of
ERISA amendatory thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of
ERISA) that together with any Loan Party would be deemed to be a "single
employer" within the meaning of Section 414(b) or (c) of the Internal
Revenue Code or, solely for purposes of Section 302 of ERISA and Section
412 of the Internal Revenue Code, is treated as a single employer under
Section 414 of the Internal Revenue Code.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to
the Appropriate Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple of 1/16 of 1%) of the rate per annum
at which deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurodollar Rate Advance comprising part of
such Borrowing to be outstanding during such Interest Period (or, if any
Reference Bank shall not have such a Eurodollar Rate Advance, $1,000,000)
and for a period equal to such Interest Period by (b) a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period.
14
The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing shall be determined by the
Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two Business
Days before the first day of such Interest Period, SUBJECT, HOWEVER, to
the provisions of Section 2.07.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in
New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances is determined) having a term equal to such
Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 7.01.
"EXCESS CASH FLOW" means, for any period, an amount equal to the
sum, without duplication, of:
(a) Consolidated Net Income of the U.S. Borrower and its
Restricted Subsidiaries for such period (other than any portion of
Consolidated Net Income attributable to earnings in respect of joint
venture interests in excess of dividends or distributions actually
received by the U.S. Borrower and its Restricted Subsidiaries), PLUS
(b) the aggregate amount of all non-cash charges deducted in
arriving at such Consolidated Net Income, PLUS
(c) the amount of any net decrease in the excess of
Consolidated Current Assets (excluding cash and Cash Equivalents)
over Consolidated Current Liabilities of the U.S. Borrower and its
Restricted Subsidiaries during such period, MINUS
(d) the aggregate amount of all non-cash credits included in
arriving at such Consolidated Net Income, PLUS
(e) the aggregate net non-cash loss realized by the U.S.
Borrower and its Restricted Subsidiaries in connection with the
sale, lease, transfer or other disposition of assets (other than
sales of inventory in the ordinary course of business) by the U.S.
Borrower and its Restricted Subsidiaries during such period, MINUS
(f) the aggregate amount of Capital Expenditures made by the
U.S. Borrower and its Restricted Subsidiaries in cash (excluding the
principal amount of any Debt incurred to finance such Capital
Expenditures, whether incurred in such period or a subsequent
period) pursuant to Section 5.02(j), MINUS
15
(g) the amount of any net increase in the excess of
Consolidated Current Assets (less cash and Cash Equivalents) over
Consolidated Current Liabilities of the U.S. Borrower and its
Restricted Subsidiaries during such period, MINUS -----
(h) the aggregate amount of any premium, make-whole or penalty
payments actually paid in cash during such period that are required
in connection with any prepayment of Debt and that are accounted for
by the U.S. Borrower as extraordinary items, MINUS
(i) the aggregate amount of all mandatory prepayments of
Revolving Credit Advances, Letter of Credit Advances and Swing Line
Advances made during such period (to the extent the Revolving Credit
Facility is permanently reduced by the amount of such prepayments),
MINUS
(j) the aggregate amount of all scheduled principal payments
of Debt of the U.S. Borrower or its Restricted Subsidiaries
(including, without limitation, Term A Advances, Term B Advances,
and Term C Advances, the principal component of payments with
respect to Obligations under Capitalized Leases and, so long as the
Mexico Subsidiary is a Restricted Subsidiary, all principal payments
on revolving or term loans of the Mexico Subsidiary (whether or not
commitments are reduced thereby), but excluding Revolving Credit
Advances, Letter of Credit Advances and Swing Line Advances), MINUS
(k) the amount of Investments made during such period pursuant
to Section 5.02(e) to the extent that such Investments were financed
with internally generated cash flow of the U.S. Borrower and its
Restricted Subsidiaries, MINUS
(l) the aggregate amount of expenditures actually made by the
U.S. Borrower and its Restricted Subsidiaries in cash during such
period (including, without limitation, the payment of financing
fees) to the extent that such expenditures are not expensed during
such period, MINUS
(m) payments by the Borrowers and their Restricted
Subsidiaries during such period in respect of long-term liabilities
of the Borrowers and their Restricted Subsidiaries other than Debt,
MINUS
(n) the amount paid during such period by the U.S. Borrower to
repurchase shares of its capital stock (and/or options or warrants
in respect thereof) held by its officers, directors and employees so
long as such repurchase is pursuant to, and in accordance with the
terms of management and/or employee stock plans, stock subscription
agreements or shareholder agreements, MINUS
(o) the aggregate net non-cash gain realized by the U.S.
Borrower and its Restricted Subsidiaries in connection with the
sale, lease, transfer or other disposition of assets (other than
sales of inventory in the ordinary course of business) by the U.S.
Borrower and its Restricted Subsidiaries during such period.
"EXISTING CREDIT AGREEMENT" has the meaning specified in the
Preliminary Statements.
"EXISTING LENDER PARTIES" has the meaning specified in the
Preliminary Statements.
16
"EXISTING DEBT" means Debt of the U.S. Borrower and its Restricted
Subsidiaries outstanding immediately before the Effective Date.
"FACILITY" means the Term A Facility, the Term B Facility, the Term
C Facility, the Revolving Credit Facility, the Swing Line Facility or the
Letter of Credit Facility.
"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 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 Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"FISCAL QUARTER" means any fiscal quarter of the U.S. Borrower and
its Consolidated Subsidiaries that occurs within any Fiscal Year.
"FISCAL YEAR" means a fiscal year of the U.S. Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"FIXED CHARGE COVERAGE RATIO" means, as of any date of
determination, the ratio of Consolidated EBITDA of the U.S. Borrower and
its Restricted Subsidiaries to the sum of (i) Consolidated Interest
Expense, PLUS (ii) Capital Expenditures made pursuant to Section
5.02(j)(i) (but specifically excluding Capital Expenditures under Section
5.02(j)(iii) and (iv)) from cash on hand or Borrowings under the Revolving
Credit Facility, PLUS (iii) principal amounts of all Funded Debt payable
(unless paid in a prior period), in each case, by the U.S. Borrower and
its Restricted Subsidiaries for the most recently completed Measurement
Period prior to such date (other than (A) mandatory prepayments pursuant
to Section 2.06(b)(i), (ii) or (iv), (B) the aggregate amount of mandatory
principal prepayments under the Mexico Facility, (C) the aggregate amount
of mandatory principal prepayments under the Revolving Credit Facility to
the extent such payments permanently reduce such Revolving Credit
Facility, (D) the final principal installment under the Term A Facility
paid on the Termination Date, and (E) the final principal installment
under the Term B Facility paid on the Termination Date).
"FOREIGN GOVERNMENT SCHEME OR ARRANGEMENT" has the meaning specified
in Section 4.01(k)(ii).
"FOREIGN PLAN" has the meaning specified in Section 4.01(k)(ii).
"FOREIGN SUBSIDIARY" means any Subsidiary of the U.S. Borrower which
is a corporation organized under the laws of any jurisdiction other than
the United States or any state thereof.
"FUNDED DEBT" of any Person means Debt in respect of the Advances,
in the case of the Borrowers, and all other Debt of such Person that by
its terms matures more than one year after the date of determination or
matures within one year from such date but is renewable or extendible, at
the option of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
after such date, including, without limitation, all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after the
date of determination.
17
"GAAP" has the meaning specified in Section 1.03.
"GUARANTY" has the meaning specified in Section 6.01.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section
6.01(a).
"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, commodities future or
option contracts for materials used in the ordinary course of business and
other similar agreements.
"HEDGE BANK" means any Lender Party or any of its Affiliates in its
capacity as a party to a Bank Hedge Agreement.
"▇▇▇▇▇▇▇▇▇ LLC" means Accuride ▇▇▇▇▇▇▇▇▇ Limited Liability Company,
a Delaware limited liability company.
"▇▇▇▇▇▇▇▇▇ LLC AGREEMENT" means the Limited Liability Company
Agreement, dated as of January 14, 1998, by and between the U.S. Borrower
and Accuride Ventures.
"HUBCAP" means Hubcap Acquisition, L.L.C., an affiliate of KKR.
"INDEMNIFIED PARTY" has the meaning specified in Section 9.04(b).
"INFORMATION MEMORANDUM" means the information memorandum dated
December 12, 1997 used by Citicorp Securities, Inc., as arranger of the
Facilities other than the Term C Facility in connection with the
syndication of the Commitments other than the Term C Commitments.
"INITIAL EXTENSION OF CREDIT" means the initial Borrowings under the
Original Credit Agreement.
"INITIAL ISSUING BANK" has the meaning specified in the recital of
parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INTEREST COVERAGE RATIO" means, as of any date of determination,
the ratio of Consolidated EBITDA of the U.S. Borrower and its Restricted
Subsidiaries to Consolidated Interest Expense of the U.S. Borrower and its
Restricted Subsidiaries for the most recently completed Measurement Period
prior to such date.
"INTEREST EXPENSE" means, for any Person for any period, cash
interest expense (including that attributable to Capital Leases in
accordance with GAAP), net of cash interest income, of such Person with
respect to all outstanding Debt of such Person, including, without
limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and
18
bankers' acceptance financing and net costs under Hedge Agreements (other
than currency swap agreements, currency future or option contracts and
other similar agreements), but excluding, however, amortization of
deferred financing costs and any other amounts of non-cash interest, all
as calculated in accordance with GAAP; PROVIDED that for purposes of the
four Fiscal Quarters immediately following the Closing Date, Interest
Expense for each Measurement Period shall be calculated after giving pro
forma effect to Debt incurred in connection with the Acquisition, as
though such Debt had been incurred on the first day of such Measurement
Period and PROVIDED FURTHER that (a) except as provided in clause (b)
below, there shall be excluded from any determination of Consolidated
Interest Expense of the U.S. Borrower and its Restricted Subsidiaries for
any period the cash interest expense (or income) of all Unrestricted
Subsidiaries for such period to the extent otherwise included in such
Consolidated Interest Expense and (b) there shall be included in any
determination of Consolidated Interest Expense for the U.S. Borrower and
its Restricted Subsidiaries for any period the cash interest expense (or
income) of any Person which becomes a Restricted Subsidiary (through an
acquisition in accordance with Section 5.02(c) or designation or
otherwise) for such entire period, assuming that any Debt incurred or
prepaid in connection with any such acquisition or designation had been
incurred or prepaid on the first day of such period.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing to either Borrower, the period commencing on
the date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on the
last day of the period selected by such Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the
last day of the period selected by such Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one,
two, three or six months, or, if available to all of the Appropriate
Lenders, nine or twelve months, as such Borrower may, upon notice received
by the Administrative Agent not later than 11:00 A.M. (
New York City time)
on the third Business Day prior to the first day of such Interest Period,
select; PROVIDED, HOWEVER, that:
(a) such Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends
after any principal repayment installment date for such Facility
unless, after giving effect to such selection, the aggregate
principal amount of Base Rate Advances and of Eurodollar Rate
Advances having Interest Periods that end on or prior to such
principal repayment installment date for such Facility shall be at
least equal to the aggregate principal amount of Advances under such
Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, PROVIDED, HOWEVER, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the
19
number of months in such Interest Period, such Interest Period shall
end on the last Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"INVESTMENT" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock or other ownership
or profit interest, warrants, rights, options, obligations or other
securities of such Person, any capital contribution to such Person or any
other investment in such Person, including, without limitation, any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (h) or (i) of the definition of "DEBT" in respect of
such Person.
"INVESTOR GROUP" means KKR and Hubcap.
"ISSUING BANK" means the Initial Issuing Bank and each Eligible
Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07.
"KAC" means ▇▇▇▇▇▇ Aluminum & Chemical Corporation, a Delaware
corporation.
"KKR" means Kohlberg Kravis ▇▇▇▇▇▇▇ & Co., L.P.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(e)(ii)(A).
"LENDER PARTY" means any Lender, the Issuing Bank or the Swing Line
Bank.
"LENDERS" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07.
"LETTERS OF CREDIT" has the meaning specified in Section 2.01(e).
"LETTER OF CREDIT ADVANCE" means an advance made by the Issuing Bank
or any Revolving Credit Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section
2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuing
Bank at any time, the amount set forth opposite the Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or, if
the Issuing Bank has entered into one or more Assignments and Acceptances,
set forth for the Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as the Issuing Bank's
"Letter of Credit Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to
the lesser of (a) the amount of the Issuing Bank's Letter of Credit
Commitment at such time and (b) $20,000,000, as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"LEVERAGE RATIO" means, as of any date of determination, the ratio
of (a) total Funded Debt of the U.S. Borrower and its Restricted
Subsidiaries, LESS the amount of cash reflected on the U.S. Borrower's
balance sheet for the most recently ended Fiscal Quarter in excess of
$5,000,000, to (b) (i) for purposes of determining compliance with Section
5.02(b)(iii)(B), (D),
20
(F) and (I), Section 5.02(e) and Section 5.03(b)(i), and of ascertaining
the availability of the Maximum Amount pursuant to the definition of
"Revolving Credit Facility", Consolidated EBITDA of the U.S. Borrower and
its Restricted Subsidiaries for the two immediately preceding Fiscal
Quarters multiplied by 2, and (ii) for all other purposes, Consolidated
EBITDA, in each case, of the U.S. Borrower and its Restricted Subsidiaries
for the most recently completed Measurement Period prior to such date;
PROVIDED that, (x) if any acquisition was made in accordance with the
provisions of this Agreement during any Measurement Period for which
Consolidated EBITDA is being calculated, then Consolidated EBITDA shall be
calculated as though such acquisition had occurred at the beginning of
such Measurement Period, and (y) all Obligations of any Person referred to
in clause (g) of the definition of "Debt" shall exclude any unrealized
losses in an aggregate maximum amount of $7,100,000 under the Hedge
Agreements in effect on the Effective Date and listed on Schedule III
hereto, including the respective termination dates thereof, which have
been entered into by such Person in the ordinary course of business.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, any agreement to give any of the foregoing,
any lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"LIGHT WHEELS FACILITY" means the manufacturing facility of the U.S.
Borrower located in Columbia, Tennessee.
"LOAN DOCUMENTS" means (a) for purposes of this Agreement and the
Notes and any amendment or modification hereof or thereof and for all
other purposes other than for purposes of the Guaranty, the Subsidiaries
Guaranty and the Collateral Documents, (i) this Agreement, (ii) the Notes,
(iii) the Guaranty, (iv) the Subsidiaries Guaranty, (v) the Collateral
Documents, (vi) each Letter of Credit Agreement and (vii) the Consent and
(b) for purposes of the Guaranty, the Subsidiaries Guaranty and the
Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the
Guaranty, (iv) the Subsidiaries Guaranty, (v) the Collateral Documents,
(vi) each Letter of Credit Agreement and (vii) each Bank Hedge Agreement,
in each case as amended, supplemented or otherwise modified from time to
time.
"LOAN PARTIES" means the Borrowers and the Subsidiary Guarantors.
"MAJORITY LENDERS" means at any time Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate
Available LC Amount of all Letters of Credit outstanding at such time, (c)
the aggregate unused Commitments under the Term A Facility, the Term B
Facility and the Term C Facility at such time and (d) the aggregate Unused
Revolving Credit Commitments at such time; PROVIDED, HOWEVER, that, if any
Lender shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Majority Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as
a Lender) and outstanding at such time, (B) such Lender's Pro Rata Share
of the aggregate Available LC Amount of all Letters of Credit issued by
such Lender and outstanding at such time, (C) the aggregate unused Term A
Commitments, Term B Commitments and Term C Commitments of such Lender at
such time and (D) the Unused Revolving Credit Commitment of such Lender at
such time. For purposes of this definition, the aggregate principal amount
of Swing Line Advances owing to the Swing Line Bank and of Letter of
Credit Advances owing to the Issuing Bank and the Available LC Amount of
each Letter of Credit shall be considered to be owed to the
21
Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, financial condition, operations, assets or liabilities of any
Loan Party or any of its Subsidiaries.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition, operations, assets or liabilities of any
Loan Party or any of its Subsidiaries, (b) the rights and remedies of the
Administrative Agent or any Lender Party under any Loan Document or
Related Document or (c) the ability of any Loan Party to perform its
Obligations under any Loan Document or Related Document to which it is or
is to be a party.
"MEASUREMENT PERIOD" means, as of any date of determination, the
most recently completed four consecutive Fiscal Quarters ending on or
immediately prior to such date.
"MEXICO FACILITY" means the facility of the Mexico Subsidiary
located in Monterrey, Mexico.
"MEXICO SUBSIDIARY" means Accuride de Mexico, S.A. de C.V., a
company organized and existing under the laws of Mexico.
"MORTGAGE" has the meaning specified in Section 5.01(n).
"MORTGAGE POLICY" has the meaning specified in Section 5.01(n).
"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 (other than any Debt incurred in accordance with Section 5.02(b)) or
the sale or issuance of any Equity Interests (including, without
limitation, any capital contribution) by any Person, the aggregate amount
of cash received from time to time (whether as initial consideration or
through payment or disposition of deferred consideration, but only as and
when received) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication): (a)
reasonable and customary fees, commissions, expenses, issuance costs,
discounts and other costs paid by the U.S. Borrower or any of its
Restricted Subsidiaries in connection with such transaction, (b) the
amount of taxes paid or estimated to be payable in connection with or as a
result of such transaction, (c) the amount of the outstanding principal
amount of, premium or penalty, if any, and interest on any Debt (other
than pursuant to the Facilities) that is secured by a Lien on the stock or
assets in question and that is required to be repaid under the terms
thereof as a result of any such transaction, (d) the amount of any
reasonable reserves established in accordance with GAAP against any
liabilities (other than taxes described in clause (b) above) that are (i)
associated with the assets that are the subject of such transaction and
(ii) retained by the U.S. Borrower or any of its Restricted Subsidiaries,
(e) the amount of any proceeds received from the sale, lease, transfer or
other disposition of the Light Wheels Facility only to the extent that
such proceeds are reinvested to offset relocation expenses in an aggregate
amount not to exceed $6,000,000, and (f) the amount of any proceeds
received from the sale or issuance of any Equity Interests to the extent
that such proceeds are invested in the business or used to prepay or
retire Debt as permitted under this Agreement within one year following
such sale or issuance; PROVIDED, HOWEVER, that in the event the amount of
any estimated tax payable described in clause (b) above exceeds the amount
actually paid, or upon any subsequent reduction in the amount of
22
any reserve described in clause (d) above, the U.S. Borrower or its
applicable Restricted Subsidiary shall be deemed to have received Net Cash
Proceeds in an amount equal to such excess or reduction, at the time of
payment of such taxes or on the date of such reduction, as the case may
be; PROVIDED FURTHER that any portion of any proceeds received from the
sale or issuance of any Equity Interests that has not been invested in the
business or used to prepay or retire Debt as permitted under this
Agreement within such one-year period shall (i) be deemed to be Net Cash
Proceeds of such a sale or issuance occurring on the last day of such
one-year period and (ii) be applied to the prepayment of Advances in
accordance with Section 2.06(b)(ii); PROVIDED FURTHER that, for purposes
of the preceding proviso, such one-year period shall be extended by up to
six months from the last day of such one-year period so long as (A) such
proceeds are to be invested in the business or used to prepay or retire
Debt as permitted under this Agreement within such additional six-month
period under the U.S. Borrower's or any of its Restricted Subsidiaries'
business plan as most recently adopted in good faith by its board of
directors and (B) such Person believes in good faith that such proceeds
will be so reinvested within such additional six-month period.
"NET INCOME" means, with respect to any Person for any period, the
net income (or loss) of such Person; PROVIDED that, for purposes of
determining Net Income for any Person and its Restricted Subsidiaries on a
Consolidated basis, there shall be excluded from such determination (i)
any after-tax gains or losses, and any related fees and expenses, in each
case to the extent attributable to the sale of assets, and (ii) any net
extraordinary gains (or losses).
"NOTE" means a Term A Note, a Term B Note, a Term C Note or a
Revolving Credit Note.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement dated
January 15, 1998 between the U.S. Borrower and the purchasers of the
Subordinated Notes, pursuant to which the Subordinated Notes are issued.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section 2.01(e).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(e).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other 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 Loan Parties under the Loan
Documents include (a) the obligation to pay principal, interest, Letter of
Credit commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by any Loan Party
under any Loan Document and (b) the obligation of any Loan Party to
reimburse any
23
amount in respect of any of the foregoing that any Lender Party, in its
sole discretion, may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"ONTARIO MINISTRY" has the meaning specified in Section
3.01(k)(iii).
"ORIGINAL CREDIT AGREEMENT" has the meaning specified in the
Preliminary Statements.
"ORIGINAL LENDER PARTIES" has the meaning specified in the
Preliminary Statements.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERFORMANCE LEVEL" means, in respect of Advances outstanding under
the Term A Facility, the Term B Facility and the Revolving Credit
Facility, Performance Level I, Performance Level II, Performance Level
III, Performance Level IV, Performance Level V or Performance Level VI, as
the context may require, and in respect of Advances outstanding under the
Term C Facility, Performance Level A, Performance Level B or Performance
Level C, as the context may require.
"PERFORMANCE LEVEL I" means, at any date of determination, that the
U.S. Borrower and its Restricted Subsidiaries shall have maintained a
Leverage Ratio of less than 3.25:1.00 for the most recently completed
Measurement Period prior to such date.
"PERFORMANCE LEVEL II" means, at any date of determination, that (a)
the Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries
does not meet the requirements for Performance Level I and (b) the U.S.
Borrower and its Restricted Subsidiaries shall have maintained a Leverage
Ratio of less than 3.75:1.00 for the most recently completed Measurement
Period prior to such date.
"PERFORMANCE LEVEL III" means, at any date of determination, that
(a) the Leverage Ratio of the U.S. Borrower and its Restricted
Subsidiaries does not meet the requirements for Performance Level I or
Performance Level II and (b) the U.S. Borrower and its Restricted
Subsidiaries shall have maintained a Leverage Ratio of less than 4.25:1.00
for the most recently completed Measurement Period prior to such date.
"PERFORMANCE LEVEL IV" means, at any date of determination, that (a)
the Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries
does not meet the requirements for Performance Level I, Performance Level
II or Performance Level III and (b) the U.S. Borrower and its Restricted
Subsidiaries shall have maintained a Leverage Ratio of less than 4.75:1.00
for the most recently completed Measurement Period prior to such date.
"PERFORMANCE LEVEL V" means, at any date of determination, that (a)
the Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries
does not meet the requirements for Performance Level I, Performance Level
II, Performance Level III or Performance Level IV and (b) the U.S.
Borrower and its Restricted Subsidiaries shall have maintained a Leverage
Ratio of less than 5.25:1.00 for the most recently completed Measurement
Period prior to such date.
24
"PERFORMANCE LEVEL VI" means, at any date of determination, that the
Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries does
not meet the requirements for Performance Level I, Performance Level II,
Performance Level III, Performance Level IV or Performance Level V.
"PERFORMANCE LEVEL A" means, at any date of determination, that the
U.S. Borrower and its Restricted Subsidiaries shall have maintained a
Leverage Ratio of less than 4.25:1.00 for the most recently completed
Measurement Period prior to such date.
"PERFORMANCE LEVEL B" means, at any date of determination, that (a)
the Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries
does not meet the requirements for Performance Level A, and (b) the U.S.
Borrower and its Restricted Subsidiaries shall have maintained a Leverage
Ratio of less than 5.25:1.00 for the most recently completed Measurement
Period prior to such date.
"PERFORMANCE LEVEL C" means, at any date of determination, that the
Leverage Ratio of the U.S. Borrower and its Restricted Subsidiaries does
not meet the requirements for Performance Level A or Performance Level B.
"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
5.01(b) hereof; (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 outstanding at any time
and securing indebtedness that is not overdue for a period of more than 30
days; (c) Liens arising from judgments or decrees in circumstances not
constituting an Event of Default under Section 7.01(g); (d) Liens incurred
or deposits made in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business; (e)
ground leases in respect of real property on which facilities owned or
leased by the U.S. Borrower or any of its Subsidiaries are located; (f)
easements, rights-of-way, restrictions, minor defects or irregularities in
title and other similar charges or encumbrances not interfering in any
material respect with the business of the U.S. Borrower and its
Subsidiaries taken as a whole; (g) any interest or title of a lessor or
secured by a lessor's interest under any lease permitted by this Agreement
and any Liens arising from any financing statement filed in connection
with such lease; (h) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (i) Liens on goods the purchase
price of which is financed by a documentary letter of credit issued for
the account of the U.S. Borrower or any of its Subsidiaries, PROVIDED that
such Lien secures only the obligations of the U.S. Borrower or such
Subsidiaries in respect of such letter of credit to the extent permitted
under Section 5.02(a); and (j) leases or subleases granted to others not
interfering in any material respect with the business of the U.S. Borrower
and its Subsidiaries, taken as a whole.
"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.
"▇▇▇▇▇▇ DODGE" means ▇▇▇▇▇▇ Dodge Corporation.
25
"PLAN" means any multiemployer or single-employer plan, as defined
in Section 4001 of ERISA and subject to Title IV of ERISA, that is or was
within any of the preceding five plan years maintained or contributed to
by (or to which there is or was an obligation to contribute or to make
payments of) any Loan Party or an ERISA Affiliate.
"PLEDGE AGREEMENT" has the meaning specified in Section 3.04(b)(ii).
"PLEDGE AGREEMENT SUPPLEMENT" has the meaning specified in the
Pledge Agreement.
"PREFERRED STOCK" means, with respect to any corporation, capital
stock issued by such corporation that is entitled to a preference or
priority over any other capital stock issued by such corporation upon any
distribution of such corporation's assets, whether by dividend or upon
liquidation.
"PREPAYMENT DATE" has the meaning specified in Section 2.06(c).
"PRO RATA SHARE" of any amount means, with respect to any Revolving
Credit Lender at any time, the product of such amount TIMES a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time and the denominator of which is the Revolving
Credit Facility at such time.
"REDEEMABLE" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any such
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.
"REDUCTION AMOUNT" has the meaning specified in Section 2.06(b)(v).
"REFERENCE BANKS" means Citibank, Bankers Trust and ▇▇▇▇▇ Fargo.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Subordinated Debt Documents, the Stock
Purchase Agreement, the AKW LLC Agreement, the AKW LP Agreement and the
AKW Acquisition Agreement.
"REPORTABLE EVENT" means an event described in Section 4043 of ERISA
and the regulations thereunder.
"REQUIREMENTS OF LAW" means, with respect to any Person, all laws,
constitutions, statutes, treaties, ordinances, rules and regulations, all
orders, writs, decrees, injunctions, judgments, determinations or awards
of an arbitrator, a court or any other governmental authority, and all
governmental authorizations, binding upon or applicable to such Person or
to any of its properties, assets or businesses.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or any of
its Subsidiaries.
26
"RESTRICTED SUBSIDIARY" means, as of any date of determination, any
Subsidiary of the U.S. Borrower which is not an Unrestricted Subsidiary.
"REVENUES" means, for any Person for any period, an amount equal to
the revenues of such Person; PROVIDED that, for purposes of such
determination, (i) the revenues of any business acquired by the U.S.
Borrower or any of its Subsidiaries during such period pursuant to Section
5.02(e)(ix) or (x) shall be determined on a pro forma basis as if such
acquisition had been consummated on the first day of such period and (ii)
the revenues of any business sold or otherwise disposed of by the U.S.
Borrower or any of its Subsidiaries in accordance with Section 5.02(d)
during such period shall be excluded in their entirety.
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(c).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving
Credit Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Revolving Credit Commitment"
or, if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount
of the Revolving Credit Lenders' Revolving Credit Commitments at such time
which amount shall not exceed $100,000,000 (the "MAXIMUM AMOUNT");
PROVIDED, HOWEVER, that the aggregate amount available for borrowing under
the Revolving Credit Facility shall not exceed $87,500,000 from, and
including, the Effective Date until the date on which the Leverage Ratio
is less than 4.50:1.00; and PROVIDED FURTHER that, after the date on which
the Leverage Ratio is less than 4.50:1.00 and until the Termination Date,
the Maximum Amount of the Revolving Credit Commitments shall be available
for borrowing under the Revolving Credit Facility, notwithstanding
subsequent increases, if any, in the Leverage Ratio.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving
Credit Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the U.S. Borrower
payable to the order of any Revolving Credit Lender, in substantially the
form of Exhibit A-3 hereto, evidencing the aggregate indebtedness of the
U.S. Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender.
"SECURED PARTIES" means the Administrative Agent, the Lender Parties
and the Lenders party to Bank Hedge Agreements.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and liabilities
as they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for
27
which such Person's property would constitute an unreasonably small
capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued under
the Letter of Credit Facility, other than a Trade Letter of Credit.
"STOCK PURCHASE AGREEMENT" means the Stock Subscription and
Redemption Agreement dated November 17, 1997, between Hubcap and ▇▇▇▇▇▇
Dodge.
"SUBORDINATED DEBT" means the Debt evidenced by the Subordinated
Notes and any other Debt of the Borrowers that is subordinated to the
Obligations of the Borrowers under the Loan Documents on, and that
otherwise contains, terms and conditions satisfactory to the Majority
Lenders.
"SUBORDINATED DEBT DOCUMENTS" means the Note Purchase Agreement and
all other agreements, indentures and instruments pursuant to which
Subordinated Debt is issued.
"SUBORDINATED NOTES" means the subordinated notes of the U.S.
Borrower in an aggregate principal amount of $200,000,000 issued pursuant
to the Note Purchase Agreement.
"SUBSIDIARIES GUARANTY" has the meaning specified in Section
3.01(k)(vii).
"SUBSIDIARIES GUARANTY CONSENT" has the meaning specified in Section
3.04(b)(iv).
"SUBSIDIARIES GUARANTY SUPPLEMENT" means a Guaranty Supplement as
defined in the Subsidiaries Guaranty.
"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.
"SUBSIDIARY GUARANTORS" means the Restricted Subsidiaries of the
U.S. Borrower that are Domestic Subsidiaries and are listed on Schedule II
hereto, and each other Restricted Subsidiary of the U.S. Borrower that
shall be required to deliver a Subsidiaries Guaranty Supplement pursuant
to this Agreement.
"SURVIVING DEBT" has the meaning specified in Section 3.01(d).
"SWING LINE ADVANCE" means an advance made by (a) the Swing Line
Bank pursuant to Section 2.01(d) or (b) any Revolving Credit Lender
pursuant to Section 2.02(b).
"SWING LINE BANK" has the meaning specified in the recital of
parties to this Agreement.
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"SWING LINE BORROWING" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"SWING LINE FACILITY" has the meaning specified in Section 2.01(d).
"SYNDICATION AGENT" has the meaning specified in the recital of
parties to this Agreement.
"TAXES" has the meaning specified in Section 2.12(a).
"TERM A ADVANCE" has the meaning specified in Section 2.01(a).
"TERM A BORROWING" means a borrowing consisting of simultaneous Term
A Advances of the same Type made by the Term A Lenders.
"TERM A COMMITMENT" means, with respect to any Term A Lender at any
time, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Term A Commitment" or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender's "Term A Commitment", as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"TERM A FACILITY" means, at any time, the aggregate amount of the
Term A Lenders' Term A Commitments at such time.
"TERM A LENDER" means any Lender that has a Term A Commitment.
"TERM A NOTE" means a promissory note of the Canadian Borrower
payable to the order of any Term A Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the indebtedness of the Canadian Borrower
to such Lender resulting from the Term A Advance made by such Lender.
"TERM B ADVANCE" has the meaning specified in Section 2.01(b).
"TERM B BORROWING" means a borrowing consisting of simultaneous Term
B Advances of the same Type made by the Term B Lenders.
"TERM B COMMITMENT" means, with respect to any Term B Lender at any
time, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Term B Commitment" or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender's "Term B Commitment", as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"TERM B FACILITY" means, at any time, the aggregate amount of the
Term B Lenders' Term B Commitments at such time.
"TERM B LENDER" means any Lender that has a Term B Commitment.
"TERM B NOTE" means a promissory note of the U.S. Borrower payable
to the order of any Term B Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the U.S. Borrower to such
Lender resulting from the Term B Advance made by such Lender.
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"TERM C ADVANCE" has the meaning specified in Section 2.01(f).
"TERM C BORROWING" means a borrowing consisting of simultaneous Term
C Advances of the same Type made by the Term C Lenders.
"TERM C COMMITMENT" means, with respect to any Term C Lender at any
time, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Term C Commitment" or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender's Term C Commitment, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"TERM C FACILITY" means, at any time, the aggregate amount of the
Term C Lenders' Term C Commitments at such time.
"TERM C LENDER" means any Lender that has a Term C Commitment.
"TERM C NOTE" means a promissory note of the U.S. Borrower payable
to the order of any Term C Lender, in substantially the form of Exhibit
A-4 hereto, evidencing the indebtedness of the U.S. Borrower to such
Lender resulting from the Term C Advance made by such Lender.
"TERMINATION DATE" means (a) with respect to the Revolving Credit
Facility, the Letter of Credit Facility and the Swing Line Facility, the
earlier of January 21, 2004 and the date of termination in whole of the
Revolving Credit Commitments, the Letter of Credit Commitments and the
Swing Line Commitments pursuant to Section 2.05 or 7.01, (b) with respect
to the Term A Facility, the earlier of January 21, 2005 and the date of
termination in whole of the Term A Commitments pursuant to Section 2.05 or
7.01, (c) with respect to the Term B Facility, the earlier of January 21,
2006 and the date of termination in whole of the Term B Commitments
pursuant to Section 2.05 or 7.01, and (d) with respect to the Term C
Facility, the earlier of January 21, 2007 and the date of termination in
whole of the Term C Commitments pursuant to Section 2.05 or 7.01.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
inventory or other goods to the U.S. Borrower or any of its Subsidiaries
to effect payment for such inventory or other goods, the conditions to
drawing under which include the presentation to the Issuing Bank of
negotiable bills of lading, invoices and related documents sufficient, in
the judgment of the Issuing Bank, to create a valid and perfected lien on
or security interest in such inventory, bills of lading, invoices and
related documents in favor of the Issuing Bank.
"TYPE" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UNFUNDED CURRENT LIABILITY" of any Plan means the amount, if any,
by which the present value of the accumulated benefits under the Plan as
of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 87 as in effect on the
date hereof, but based upon the actuarial assumptions that would be used
by the Plan's actuary in a termination of the Plan, exceeds the fair
market value of the assets allocable thereto.
"UNITED STATES" and "U.S." each mean the United States of America.
30
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of the U.S.
Borrower that is formed or acquired after the Closing Date, PROVIDED, that
at the time of such formation or acquisition (or promptly thereafter) the
U.S. Borrower designates such Subsidiary as an Unrestricted Subsidiary in
a written notice to the Administrative Agent, (b) any Restricted
Subsidiary on the Closing Date (other than the Canadian Borrower)
subsequently re-designated as an Unrestricted Subsidiary by the U.S.
Borrower in a written notice to the Administrative Agent pursuant to
Section 5.03(g), PROVIDED that such re-designation shall be deemed to be
an Investment on the date of such re-designation in an Unrestricted
Subsidiary in an amount equal to the sum of (i) the net worth of such
re-designated Restricted Subsidiary immediately prior to such
re-designation (such net worth to be calculated without regard to any
guaranty provided by such re-designated Restricted Subsidiary pursuant to
the Subsidiary Guaranty) plus (ii) the aggregate principal amount of any
Debt owed by such redesignated Restricted Subsidiary to either Borrower or
any other Restricted Subsidiary immediately prior to such re-designation,
all calculated, except as set forth in the parenthetical to clause (i), on
a consolidated basis in accordance with GAAP, and (c) any Subsidiary of
any Unrestricted Subsidiary; PROVIDED, HOWEVER, that (i) at the time of
any written re-designation by the U.S. Borrower to the Administrative
Agent of any Unrestricted Subsidiary as a Restricted Subsidiary pursuant
to Section 5.03(g), the Unrestricted Subsidiary so re-designated shall no
longer constitute an Unrestricted Subsidiary, (ii) no Unrestricted
Subsidiary may be re-designated as a Restricted Subsidiary if a Default or
Event of Default has occurred and is continuing or would result from such
re-designation and (iii) no Restricted Subsidiary may be re-designated as
an Unrestricted Subsidiary if a Default or Event of Default has occurred
and is continuing or would result from such re-designation; and PROVIDED
FURTHER, HOWEVER, that on or promptly after the date of its formation,
acquisition or re-designation, as applicable, each Unrestricted Subsidiary
(other than an Unrestricted Subsidiary that is a Foreign Subsidiary) shall
have entered into a tax sharing agreement containing terms that, in the
reasonable judgment of the Administrative Agent, provide for an
appropriate allocation of tax liabilities and benefits.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, (a) such Lender's Revolving Credit
Commitment at such time MINUS (b) the sum of (i) the aggregate principal
amount of all Revolving Credit Advances, Swing Line Advances and Letter of
Credit Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, PLUS (ii) such Lender's Pro Rata Share of (A)
the aggregate Available LC Amount of all Letters of Credit outstanding at
such time, (B) the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Bank pursuant to Section 2.03(c) and
outstanding at such time and (C) the aggregate principal amount of all
Swing Line Advances made by the Swing Line Bank pursuant to Section
2.01(d) and outstanding at such time.
"U.S. BORROWER" has the meaning specified in the recital of parties
to this Agreement.
"U.S. PERSON" means any Person which is organized under the laws of
a jurisdiction of the United States.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"▇▇▇▇▇ FARGO" has the meaning specified in the recital of parties to
this Agreement.
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SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement 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".
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 4.01(f) ("GAAP").
SECTION 1.04. CURRENCY EQUIVALENT. For purposes of construction of
the terms hereof, the equivalent in another currency of an amount in U.S.
dollars shall be determined by using the quoted spot rate at which Citibank's
principal office in
New York City offers to purchase such other currency with
the equivalent in dollars in
New York City at 9:00 A.M. (New York City time) on
the date on which such equivalent is to be determined.
ARTICLE II.
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) THE TERM A ADVANCES. Each Term A
Lender has made a single advance (a "TERM A ADVANCE") to the Canadian Borrower
on the Closing Date under the Original Credit Agreement in an amount of such
Lender's Term A Commitment at such time. The Term A Borrowing consisted of Term
A Advances made simultaneously by the Term A Lenders ratably according to their
Term A Commitments. Amounts borrowed under this Section 2.01(a) and repaid or
prepaid may not be reborrowed.
(b) THE TERM B ADVANCES. Each Term B Lender has made a single
advance (a "TERM B ADVANCE") to the U.S. Borrower on the Closing Date under the
Original Credit Agreement in an amount of such Lender's Term B Commitment at
such time. The Term B Borrowing consisted of Term B Advances made simultaneously
by the Term B Lenders ratably according to their Term B Commitments. Amounts
borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed.
(c) THE REVOLVING CREDIT ADVANCES. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "REVOLVING CREDIT ADVANCE") to the U.S. Borrower from time to
time on any Business Day during the period from the date of the Original Credit
Agreement until the Termination Date in an amount for each such Advance not to
exceed such Lender's Unused Revolving Credit Commitment at such time. Each
Revolving Credit Borrowing shall be in an aggregate amount of $2,000,000 or an
integral multiple of $500,000 in excess thereof (other than a Borrowing the
proceeds of which shall be used solely to repay or prepay in full outstanding
Swing Line Advances or outstanding Letter of Credit Advances) and shall consist
of Revolving Credit Advances made simultaneously by the Revolving Credit Lenders
ratably according to their Revolving Credit Commitments. Within the limits of
each Revolving Credit Lender's Unused Revolving Credit Commitment in effect from
time to time, the U.S. Borrower may borrow under this Section 2.01(c), prepay
pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
(d) THE SWING LINE ADVANCES. The U.S. Borrower may request the Swing
Line Bank to make, and the Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the U.S. Borrower from
time to time on any Business Day during the period from the date of the Original
Credit Agreement until the Termination Date in an aggregate amount not to exceed
at any time outstanding the lesser of (i) $10,000,000 (the "SWING LINE
FACILITY") and (ii) an amount not to
32
exceed the aggregate of the Unused Revolving Credit Commitments of the Revolving
Credit Lenders at such time. No Swing Line Advance shall be used for the purpose
of funding the payment of principal of any other Swing Line Advance. Each Swing
Line Borrowing shall be in an amount of $500,000 or an integral multiple of
$250,000 in excess thereof and shall be made as a Base Rate Advance. Within the
limits of the Swing Line Facility and within the limits referred to in clause
(ii) above, the U.S. Borrower may borrow under this Section 2.01(d), repay
pursuant to Section 2.04(d) or prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(d).
(e) LETTERS OF CREDIT. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (the "LETTERS OF
CREDIT") for the account of the U.S. Borrower from time to time on any Business
Day during the period from the date of the Original Credit Agreement until five
Business Days before the Termination Date (i) in an aggregate Available LC
Amount for all Letters of Credit not to exceed at any time the Issuing Bank's
Letter of Credit Commitment at such time and (ii) in an Available LC Amount for
each such Letter of Credit not to exceed an amount equal to the Unused Revolving
Credit Commitments of the Revolving Credit Lenders at such time. No Letter of
Credit shall have an expiration date (including all rights of the U.S. Borrower
or the beneficiary to require renewal) later than the earlier of five Business
Days before the Termination Date and (A) in the case of a Standby Letter of
Credit, one year after the date of issuance thereof, but may by its terms be
renewable annually upon notice (a "NOTICE OF RENEWAL") given to the Issuing Bank
and the Administrative Agent on or prior to any date for notice of renewal set
forth in such Letter of Credit (but in any event at least three Business Days
prior to the date of the proposed renewal of such Standby Letter of Credit) and
upon fulfillment of the applicable conditions set forth in Article III, unless
such Issuing Bank has notified the U.S. Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit (but in any event at least 30 Business Days prior
to the date of automatic renewal) of its election not to renew such Standby
Letter of Credit (a "NOTICE OF TERMINATION") and (B) in the case of a Trade
Letter of Credit, the later of 180 days after the date of issuance thereof or
five Business Days before the Termination Date; PROVIDED that the terms of each
Standby Letter of Credit that is automatically renewable annually shall (x)
require the Issuing Bank that issued such Standby Letter of Credit to give the
beneficiary named in such Standby Letter of Credit notice of any Notice of
Termination, (y) permit such beneficiary, upon receipt of such notice, to draw
under such Standby Letter of Credit prior to the date such Standby Letter of
Credit otherwise would have been automatically renewed and (z) not permit the
expiration date (after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than 60 days before the
Termination Date. If either a Notice of Renewal is not given by the U.S.
Borrower or a Notice of Termination is given by the Issuing Bank pursuant to the
immediately preceding sentence, such Standby Letter of Credit shall expire on
the date on which it otherwise would have been automatically renewed; PROVIDED,
HOWEVER, that even in the absence of receipt of a Notice of Renewal the Issuing
Bank may in its discretion, unless instructed to the contrary by the
Administrative Agent or the U.S. Borrower, deem that a Notice of Renewal had
been timely delivered and in such case, a Notice of Renewal shall be deemed to
have been so delivered for all purposes under this Agreement. Within the limits
of the Letter of Credit Facility, and subject to the limits referred to above,
the U.S. Borrower may request the issuance of Letters of Credit under this
Section 2.01(e), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.03(c) and request the issuance of additional
Letters of Credit under this Section 2.01(e).
(f) THE TERM C ADVANCES. Each Term C Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "TERM C
ADVANCE") to the U.S. Borrower on any Business Day during the period from the
date hereof until April 16, 1999, in an amount not to exceed such Lender's Term
C Commitment at such time. The Term C Borrowing shall consist of Term C Advances
made simultaneously by the Term C Lenders ratably according to their Term C
Commitments. Amounts borrowed under this Section 2.01(f) and repaid or prepaid
may not be reborrowed.
33
SECTION 2.02. MAKING THE ADVANCES. (a) Except as otherwise provided
in Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not
later than 12:00 P.M. (New York City time) on the third Business Day prior to
the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Appropriate Borrower to the Administrative Agent, which shall give to
each Appropriate Lender prompt notice thereof by telex or telecopier; PROVIDED,
HOWEVER, that the Term C Borrowing hereunder shall consist of Base Rate Advances
and shall be made on notice, given not later than 10:00 A.M. (New York City
time) on the Business Day of the proposed Term C Borrowing, by the U.S. Borrower
to the Administrative Agent, which shall give to each Appropriate Lender prompt
notice thereof by telex or telecopier. Each such notice of a Borrowing (a
"NOTICE OF BORROWING") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Facility under
which such Borrowing is to be made, (iii) Type of Advances comprising such
Borrowing, (iv) aggregate amount of such Borrowing and (v) in the case of a
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each Appropriate Lender shall, before 12:00 P.M. (New York
City time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing in accordance with the respective Commitments under the applicable
Facility of such Lender and the other Appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Appropriate Borrower by crediting the
applicable Borrower's Account; PROVIDED, HOWEVER, that, in the case of any
Revolving Credit Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Swing Line Advances
and Letter of Credit Advances made by the Swing Line Bank or the Issuing Bank,
as the case may be, and by any other Revolving Credit Lender and outstanding on
the date of such Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or the Issuing
Bank, as the case may be, and such other Revolving Credit Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not
later than 1:00 P.M. (New York City time) on the date of the proposed Swing Line
Borrowing, by the U.S. Borrower to the Swing Line Bank and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF SWING LINE
BORROWING") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the seventh day after the requested date of such
Borrowing). The Swing Line Bank will make the amount thereof available to the
Administrative Agent at the Administrative Agent's Account, in same day funds.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the U.S. Borrower by crediting its Borrower's
Account. Upon written demand by the Swing Line Bank, with a copy of such demand
to the Administrative Agent, each other Revolving Credit Lender shall purchase
from the Swing Line Bank, and the Swing Line Bank shall sell and assign to each
such other Revolving Credit Lender, such other Lender's Pro Rata Share of such
outstanding Swing Line Advance as of the date of such demand, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Swing Line Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Swing Line Advance to be purchased by such
Lender. The U.S. Borrower hereby agrees to each such sale and assignment. Each
Revolving Credit Lender agrees to purchase its Pro Rata Share of an outstanding
Swing Line Advance on (i) the Business Day on which demand therefor is made by
the Swing Line Bank, PROVIDED that notice of such demand is given not later than
1:00 P.M. (New York City time) on such Business Day or (ii) the first
34
Business Day next succeeding such demand if notice of such demand is given after
such time. Upon any such assignment by the Swing Line Bank to any other
Revolving Credit Lender of a portion of a Swing Line Advance, the Swing Line
Bank represents and warrants to such other Lender that the Swing Line Bank is
the legal and beneficial owner of such interest being assigned by it, but makes
no other representation or warranty and assumes no responsibility with respect
to such Swing Line Advance, the Loan Documents or any Loan Party. If and to the
extent that any Revolving Credit Lender shall not have so made the amount of
such Swing Line Advance available to the Administrative Agent, such Revolving
Credit Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Swing Line Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such amount for the account of the Swing Line Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Swing Line
Advance made by such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Swing Line Advance made by the Swing
Line Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) neither Borrower may select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $2,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or Section 2.10 and (ii) the Term A Advances may not be outstanding
as part of more than 3 separate Borrowings, the Term B Advances may not be
outstanding as part of more than 3 separate Borrowings, the Term C Advances may
not be outstanding as part of more than 3 separate Borrowings and the Revolving
Credit Advances made on any date may not be outstanding on any date as part of
more than 10 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing
shall be irrevocable and binding on the Appropriate Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Appropriate Borrower shall indemnify each
Appropriate Lender against any loss, cost or expense incurred by such Lender as
a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from
an Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Appropriate Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Administrative Agent,
such Lender and such Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
the Appropriate Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of such Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
35
(f) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER
LETTERS OF CREDIT. (A) REQUEST FOR ISSUANCE. Each Letter of Credit shall be
issued upon notice, given not later than 12:00 P.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, or such shorter period as may be agreed upon by the Issuing Bank, by the
U.S. Borrower to the Issuing Bank, which shall give to the Administrative Agent
and each Revolving Credit Lender prompt notice thereof by telex or telecopier.
Each such notice of issuance of a Letter of Credit (a "Notice of Issuance")
shall be by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (A) date of such issuance (which shall be a
Business Day), (B) Available LC Amount of such Letter of Credit, (C) expiration
date of such Letter of Credit, (D) name and address of the beneficiary of such
Letter of Credit and (E) form of such Letter of Credit, and shall be accompanied
by such application and agreement for letter of credit as the Issuing Bank may
specify to the U.S. Borrower for use in connection with such requested Letter of
Credit (a "Letter of Credit Agreement"). If (x) the requested form of such
Letter of Credit is acceptable to the Issuing Bank in its sole discretion and
(y) it has not received notice of objection to such issuance from the
Administrative Agent, the Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to the
U.S. Borrower at its office referred to in Section 9.02 or as otherwise agreed
with the U.S. Borrower in connection with such issuance. In the event and to the
extent that the provisions of any Letter of Credit Agreement shall conflict with
this Agreement, the provisions of this Agreement shall govern.
(b) LETTER OF CREDIT REPORTS. The Issuing Bank shall furnish (A) to
the Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
previous week and drawings during such week under all Letters of Credit, (B) to
each Revolving Credit Lender on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of Credit issued
during the preceding month and drawings during such month under all Letters of
Credit and (C) to the Administrative Agent and each Revolving Credit Lender on
the first Business Day of each calendar quarter a written report setting forth
the average daily aggregate Available LC Amount during the preceding calendar
quarter of all Letters of Credit.
(c) DRAWING AND REIMBURSEMENT. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon written demand
by the Issuing Bank, with a copy of such demand to the Administrative Agent,
each Revolving Credit Lender shall purchase from the Issuing Bank, and the
Issuing Bank shall sell and assign to each such Revolving Credit Lender, such
Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of the
date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to the Issuing Bank. The U.S.
Borrower hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of Credit
Advance on (i) the Business Day on which demand therefor is made by the Issuing
Bank, provided notice of such demand is given not later than 12:00 P.M. (New
York City time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by the Issuing Bank to any other Revolving
36
Credit Lender of a portion of a Letter of Credit Advance, the Issuing Bank
represents and warrants to such other Lender that the Issuing Bank is the legal
and beneficial owner of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Letter of Credit Advance, the Loan Documents or any Loan Party. If and to the
extent that any Revolving Credit Lender shall not have so made the amount of
such Letter of Credit Advance available to the Administrative Agent, such
Revolving Credit Lender agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by the Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate for its account or the account
of the Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by the Issuing Bank shall be reduced by such amount on such
Business Day.
(d) FAILURE TO MAKE LETTER OF CREDIT ADVANCES. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. REPAYMENT OF ADVANCES. (a) TERM A ADVANCES. The
Canadian Borrower shall repay to the Administrative Agent for the ratable
account of the Term A Lenders the final principal installment of the Term A
Advances in the aggregate amount of $55,404,444.44 on January 21, 2005 (which
amount shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.06); PROVIDED,
HOWEVER, that the final principal installment of the Term A Advances shall be
repaid on the Termination Date and in any event shall be in an amount equal to
the aggregate principal amount of the Term A Advances outstanding on such date.
(b) TERM B ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the final
principal installment of the Term B Advances in the aggregate amount of
$69,255,555.56 on January 21, 2006 (which amount shall be reduced as a result of
the application of prepayments in accordance with the order of priority set
forth in Section 2.06); PROVIDED, HOWEVER, that the final principal installment
of the Term B Advances shall be repaid on the Termination Date and in any event
shall be in an amount equal to the aggregate principal amount of the Term B
Advances outstanding on such date.
(c) REVOLVING CREDIT ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Termination Date the aggregate outstanding principal amount of the Revolving
Credit Advances then outstanding.
(d) SWING LINE ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and the Termination Date.
(e) LETTER OF CREDIT ADVANCES. (i) The U.S. Borrower shall repay to
the Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
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(ii) The Obligations of the U.S. Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the U.S. Borrower in
respect of any L/C Related Document or any other amendment or waiver of or
any consent to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the U.S. Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate or other document that does not
strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from the Guaranty, the Subsidiaries Guaranty or any other
guarantee, for all or any of the Obligations of the U.S. Borrower in
respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the U.S. Borrower or a guarantor.
(f) TERM C ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Term C Lenders the aggregate
outstanding principal amount of the Term C Advances on the following dates in
the amounts indicated (which amounts shall be reduced as a result of the
application of prepayments in accordance with the order of priority set forth in
Section 2.06):
Date Amount
---- ------
January 21, 2003 $1,000,000
January 21, 2004 $1,000,000
January 21, 2005 $1,000,000
January 21, 2006 $47,000,000
January 21, 2007 $47,000,000
38
PROVIDED, HOWEVER, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term C Advances outstanding on such date.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS. (a)
OPTIONAL. Either Borrower may, upon at least two Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Term A Commitments, the Term B Commitments, the Term C Commitments, the
Letter of Credit Facility and the Unused Revolving Credit Commitments; PROVIDED,
HOWEVER, that each partial reduction of a Facility (i) shall be in an aggregate
amount of $1,000,000 or an integral multiple of $500,000 in excess thereof and
(ii) shall be made ratably among the Appropriate Lenders in accordance with
their Commitments with respect to such Facility.
(b) MANDATORY. (iii) The Revolving Credit Facility shall be
automatically and permanently reduced on a pro rata basis on each date on which
prepayment thereof is required to be made pursuant to Section 2.06(b)(i), (ii)
or (iv), in an amount equal to the applicable Reduction Amount, PROVIDED that
each such reduction of the Revolving Credit Facility shall be made ratably among
the Revolving Credit Lenders in accordance with their Revolving Credit
Commitments.
(iv) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Letter of Credit Facility exceeds
the Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
SECTION 2.06. PREPAYMENTS. (a) OPTIONAL. The Appropriate Borrower
may, on same Business Day's notice in the case of Base Rate Advances and one
Business Day's notice in the case of Eurodollar Rate Advances, in each case to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Appropriate Borrower
shall, prepay the outstanding aggregate principal amount of the Advances
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; PROVIDED, HOWEVER, that (x) each partial prepayment shall be in
an aggregate principal amount of $1,000,000 or an integral multiple of $500,000
in excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made
on a date other than the last day of an Interest Period for such Advance such
Borrower shall also pay any amounts owing pursuant to Section 9.04(c). Each such
prepayment of any Term A Advances or Term B Advances shall be applied to the
installments thereof in the manner specified by the Appropriate Borrower.
(b) MANDATORY. (v) The Borrowers shall, on the 130th day following
the end of each Fiscal Year, if the Leverage Ratio for the Measurement Period
ending on the last day of such Fiscal Year exceeds 4.00:1.00, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to the remainder of (A) 50% of the amount of
Excess Cash Flow for such Fiscal Year MINUS (B) the aggregate amount of any
optional prepayments of Term Advances or, to the extent such prepayments
permanently reduced the Revolving Credit Facility, the amount of any optional
prepayments of Revolving Credit Advances, Swing Line Advances or Letter of
Credit Advances made during such Fiscal Year. Each such prepayment shall, except
as otherwise provided in Section 2.06(c) below, be applied FIRST to the Term A
Facility and/or the Term B Facility and to the installments thereof in the
manner specified by the Appropriate Borrower (but pro rata among the Term A
Lenders and/or the Term B Lenders which are not Declining Lenders), SECOND to
the Revolving Credit Facility as set forth in clause (v) below and, THIRD to the
Term C Facility and to the installments thereof in the manner specified by the
U.S. Borrower (but pro rata among the Term C Lenders).
39
(iv) The Borrowers shall, on the date of receipt of the Net Cash
Proceeds by any Loan Party or any of its Restricted Subsidiaries from the sale,
lease, transfer or other disposition of any assets of, or from the incurrence or
issuance of any Debt (other than any Debt incurred or issued in accordance with
Section 5.02(b)) by, or the sale or issuance of any Equity Interests (including,
without limitation, any capital contribution, but specifically excluding any
such Net Cash Proceeds specified in clause (f) of the definition of "Net Cash
Proceeds") by, any Loan Party or any of its Restricted Subsidiaries, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings equal to the amount of such Net Cash Proceeds. Each such prepayment
shall, except as otherwise provided in Section 2.06(c) below, be applied FIRST
ratably to the Term A Facility and the Term B Facility and to the next two
installments thereof, SECOND ratably to the Term A Facility and the Term B
Facility and pro rata to the remaining installments thereof, THIRD to the
Revolving Credit Facility as set forth in clause (v) below, and FOURTH to the
Term C Facility and pro rata to the remaining installments thereof.
(v) The U.S. Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
equal to the amount by which (A) the sum of the aggregate principal amount of
(x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the
Swing Line Advances then outstanding plus the aggregate Available LC Amount of
all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility
on such Business Day (after giving effect to any permanent reduction thereof
pursuant to Section 2.05 on such Business Day).
(vi) In the event that a Term A Lender or a Term B Lender is a
Declining Lender pursuant to Section 2.06(c) below, the U.S. Borrower shall
prepay, in accordance with clause (v) below, an aggregate principal amount of
the Revolving Credit Advances comprising part of the same Borrowings in an
amount equal to 50% of the Declined Amount.
(vii) Prepayments of the Revolving Credit Facility made pursuant to
clause (i), (ii), (iii) or (iv) of this Section 2.06(b) or pursuant to Section
2.06(c) below shall be FIRST applied to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, SECOND applied to prepay Swing
Line Advances then outstanding until such Advances are paid in full and THIRD
applied to prepay Revolving Credit Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full; and, in the case of
prepayments of the Revolving Credit Facility required pursuant to clause (i),
(ii) or (iv) above, the amount remaining (if any) after the prepayment in full
of the Advances then outstanding (the sum of such prepayment amounts and
remaining amount being referred to herein as the "REDUCTION AMOUNT") may be
retained by the U.S. Borrower and the Revolving Credit Facility shall be
permanently reduced as set forth in Section 2.05(b)(i).
(viii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
(ix) Notwithstanding any of the other provisions of this Section
2.06(b), so long as no Default under Section 7.01(a) or 7.01(f) or Event of
Default shall have occurred and be continuing, if any prepayment of Eurodollar
Rate Advances is required to be made under this Section 2.06(b) other than on
the last day of the Interest Period therefor, the Borrower to which such
Eurodollar Rate Advances were made may, in its sole discretion, deposit the
amount of any such prepayment otherwise required to be made hereunder into the
Cash Collateral Account of such Borrower until the last day of such Interest
Period, at which time the Administrative Agent shall, subject to the provisions
of Section 2.06(c) below, be authorized (without any further action by or notice
to or from such Borrower) to apply such amount to the prepayment of such
Advances in accordance with Section 2.06(b).
40
(c) TERM OPT-OUT. Notwithstanding anything to the contrary contained
in Section 2.06(b), with respect to any prepayment of the Term A Advances or
Term B Advances required pursuant to Section 2.06(b)(i) or Section 2.06(b) (ii)
above, any Term A Lender or Term B Lender, at its option, may elect not to
accept its ratable portion of such prepayment, in which event the provisions of
the next sentence shall apply. Any Lender declining such prepayment (such Lender
being a "DECLINING LENDER" and the amount of such Lender's ratable portion of
such prepayment being the "DECLINED AMOUNT") shall give written notice to the
Administrative Agent by 11:00 a.m. (New York City time) on the Business Day
immediately preceding the date on which such prepayment would otherwise be made
(the "PREPAYMENT DATE"). On the Prepayment Date, 50% of the Declined Amount
shall be used to prepay outstanding Revolving Credit Advances in accordance with
Section 2.06(b)(iv) above, and the Borrowers may elect, in their discretion to
retain the remaining portion of any such Declined Amount. With respect to any
prepayment of the Term C Advances required pursuant to Section 2.06(b) (i) or
(ii) above, any Term C Lender, at its option, may elect not to accept its
ratable portion of such prepayment in which event the provisions of the next
sentence shall apply. Any Term C Lender declining such prepayment (such Lender
being a "DECLINING TERM C LENDER" and the amount of such Lender's ratable
portion of such prepayment being the "DECLINED TERM C AMOUNT") shall give
written notice to the Administrative Agent by 11:00 A.M. (New York City Time) on
the Business Day immediately preceding the date on which such prepayment would
otherwise be made (the "TERM C PREPAYMENT DATE"). On the Term C Prepayment Date,
the Declined Term C Amount shall be retained by the U.S. Borrower.
SECTION 2.07. INTEREST. (a) SCHEDULED INTEREST. Each Borrower shall
pay interest on the unpaid principal amount of each Advance owing by it to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time PLUS (B) the Applicable Margin
in effect from time to time, payable in arrears quarterly on the last
Business Day of each March, June, September and December during such
periods, SUBJECT, HOWEVER, to the provisions of subsection (b) of this
Section 2.07.
(ii) EURODOLLAR RATE ADVANCES. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (A) the Eurodollar
Rate for such Interest Period for such Advance PLUS (B) the Applicable
Margin in effect on the first day of such Interest Period, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full, SUBJECT, HOWEVER, to the provisions of
subsection (b) of this Section 2.07.
(b) DEFAULT INTEREST. If all or a portion of (i) the principal
amount of any Advance or (ii) any interest payable thereon or fees or other
amounts payable under this Agreement shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), the aggregate principal amount
of all Advances outstanding at such time shall bear interest, payable on demand,
at a rate per annum that is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto PLUS 2% per annum or (y) in the case of
any overdue interest, fees or other amounts payable, to the extent permitted by
applicable law, the rate described in Section 2.07(a)(i) PLUS 2% per annum, in
each case, from the date of such non-payment to the date on which such overdue
amount is paid in full (after as well as before judgment).
(c) NOTICE OF INTEREST RATE. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), the Administrative Agent shall give
notice to the Appropriate Borrower and each
41
Appropriate Lender of the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (ii), and the applicable
rate, if any, furnished by each Reference Bank for the purpose of determining
the applicable interest rate under clause (a)(ii).
(d) INTEREST RATE DETERMINATION. (i) Each Reference Bank agrees to
furnish to the Administrative Agent timely information for the purpose of
determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(A) the Administrative Agent shall forthwith notify the Appropriate
Borrower and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances,
(B) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Appropriate Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.08. FEES. (a) COMMITMENT FEE. The U.S. Borrower shall pay
to the Administrative Agent for the account of each Lender having a Revolving
Credit Commitment a commitment fee, from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date, payable in arrears on the date of the initial
Borrowing hereunder, thereafter quarterly on the last Business Day of each
March, June, September and December, commencing March 31, 1998, and on the
Termination Date, at the rate per annum equal to the Applicable Percentage of
the sum of the average daily Unused Revolving Credit Commitment of such Lender
PLUS its Pro Rata Share of the average daily outstanding Swing Line Advances
during such quarter; PROVIDED, HOWEVER, that no commitment fee shall accrue on
any of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) LETTER OF CREDIT FEES, ETC. (i) The U.S. Borrower shall pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each March,
June, September and December, commencing March 31, 1998, and on the earliest to
occur of the full drawing expiration, termination or cancellation of any such
Letter of Credit and on the Termination Date, on such Lender's Pro Rata Share of
the average daily aggregate Available LC Amount of all Letters of Credit
outstanding from time to time at a rate per annum equal to the Applicable Margin
for Eurodollar Rate Advances then in effect LESS 0.125% per annum.
(ii) The U.S. Borrower shall pay to the Issuing Bank, for its own
account, (A) a fronting fee, payable in arrears quarterly on the last Business
Day of each March, June, September and December, commencing March 31, 1998, and
on the Termination Date, on the average daily aggregate Available LC Amount of
all Letters of Credit outstanding from time to time at the rate of 0.125% per
annum and (B) such other reasonable and customary commissions, transfer fees and
other fees and charges in connection with the issuance or administration of each
Letter of Credit as the U.S. Borrower and the Issuing Bank shall agree.
42
(c) ADMINISTRATIVE AGENT'S FEES. The U.S. Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the U.S. Borrower and the Administrative Agent.
(d) AMENDMENT FEE. The U.S. Borrower shall pay to the Administrative
Agent for the account of each Lender Party that, pursuant to Section 9.01, (i)
approves any amendment, waiver or consent prior to the deadline established by
the Administrative Agent and (ii) becomes a party to such amendment, waiver or
consent, a fee in the amount of 0.25% of the aggregate amount of such Lender
Party's Commitments payable on the date on which such amendment, waiver or
consent becomes effective pursuant to the terms thereof.
SECTION 2.09. CONVERSION OF ADVANCES. (a) OPTIONAL. Either Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 12:00 P.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.07 and
2.10, Convert all or any portion of the Advances of one Type owed by it
comprising the same Borrowing into Advances of the other Type; PROVIDED,
HOWEVER, that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(c), no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments under such
Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on such Borrower.
(b) MANDATORY. (iv) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $2,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(v) If the Appropriate Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(vi) Upon the occurrence and during the continuance of any Default
under Section 7.01(a), (x) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (y) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. INCREASED COSTS, ETC. (a) In the event that, due to
either (i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation or administration of any
applicable law or regulation after the Closing Date, (ii) the compliance with
any applicable guideline or request from any central bank or other governmental
authority (whether or not having the force of law) or (iii) any other
circumstance affecting the interbank Eurodollar market or the position of any
Lender Party in such market which leads such Lender Party to reasonably
determine that the Eurodollar Rate for any Interest Period for any Eurodollar
Rate Advance made by such Lender Party will not adequately reflect the cost to
such Lender of making, funding or maintaining such Eurodollar
43
Rate Advance for such Interest Period, there shall be any increase in the cost
to or reduction in the amount received or receivable by any Lender Party as a
result of agreeing to make or of making, funding or maintaining Eurodollar Rate
Advances or of agreeing to issue or of issuing or maintaining Letters of Credit
or of agreeing to make or of making or maintaining Letter of Credit Advances
(excluding for purposes of this Section 2.10 any such increased costs resulting
from (A) Taxes or Other Taxes (as to which Section 2.12 shall govern) and (B)
changes in the basis of taxation of overall net income or overall gross income
by the United States or Canada or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the U.S. Borrower shall from
time to time, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender Party, in
its reasonable discretion, shall determine) sufficient to compensate such Lender
Party for such increased COST; PROVIDED, HOWEVER, that a Lender Party claiming
additional amounts under this Section 2.10(a) agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office for any Advances affected by
such event if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue; PROVIDED
that such designation is made on terms that such Lender Party and its Applicable
Lending Office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
this subsection (a). A certificate as to the amount of such increased cost and
showing in reasonable detail the basis for the calculation thereof, submitted to
such Borrower by such Lender Party at the time of demand, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or in
the interpretation or administration of any applicable law or regulation after
the Closing Date or (ii) the compliance with any applicable 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 amount of capital required or
expected to be maintained by any Lender Party or any corporation controlling
such Lender Party which has or would have the effect of reducing the rate of
return on such Lender Party's capital or assets as a result of or based upon the
existence of such Lender Party's commitments and obligations under this
Agreement to a level below that which such Lender Party could have achieved but
for such change or compliance (taking into consideration such Lender Party's or
any corporation controlling such Lender Party's policies with respect to capital
adequacy), then, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), the U.S. Borrower shall pay to the Administrative
Agent for the account of such Lender Party, from time to time as specified by
such Lender Party, additional amounts sufficient to compensate such Lender Party
in the light of such circumstances, it being understood and agreed that a Lender
Party shall not be entitled to such compensation as a result of such Lender
Party's compliance with, or pursuant to any request or directive to comply with,
any such law, regulation, guideline or request in effect on the Closing Date.
Any amount payable pursuant to this Section 2.10(b) shall be payable only to the
extent that such Lender Party reasonably determines such increase in capital to
be allocable to the existence of such Lender Party's commitment to lend or to
issue Letters of Credit hereunder or to the issuance or maintenance of any
Letters of Credit. A certificate as to such amounts and showing in reasonable
detail the basis for the calculation thereof submitted to such Borrower by such
Lender Party at the time of demand shall be conclusive and binding for all
purposes, absent manifest error.
(c) Notwithstanding any other provision of this Agreement, 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 Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
with respect to any Eurodollar Rate Advance affected by circumstances described
in this subsection (c), such Borrower will, and with respect to any Eurodollar
44
Rate Advance affected by circumstances described in subsections (a) or (b)
above, such Borrower may, either (i) on the last day of the then existing
Interest Period therefor, convert each Eurodollar Rate Advance affected by such
circumstances into a Base Rate Advance or (ii) if the affected Eurodollar Rate
Advance is then being made pursuant to a Borrowing, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed promptly in
writing) thereof on the same date that such Borrower was notified by a Lender
Party pursuant to subsection (a) or (b) above or this subsection (c) (as
applicable); PROVIDED that if more than one Lender Party is affected at any
time, then all affected Lender Parties must be treated in the same manner
pursuant to this Section 2.10(c). In the event of an illegality as described in
clause (i) of this subsection (c) the obligation of the Appropriate Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Appropriate Borrower that such
Lender has determined that the circumstances causing such suspension no longer
exist; PROVIDED, HOWEVER, that, before making any such demand, such Lender Party
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
for any Advances affected by such event if the making of such a designation
would allow such Lender Party or its Applicable Lending Office to continue to
perform its obligations to make Eurodollar Rate Advances or to continue to fund
or maintain Eurodollar Rate Advances; PROVIDED that such designation is made on
terms that such Lender Party and its Applicable Lending Office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of this subsection.
(d) Anything in this Agreement to the contrary notwithstanding, to
the extent any notice under Section 2.10, 2.12 or 9.04(c) is given by any Lender
Party more than 180 days after such Lender Party has knowledge (or should have
had knowledge) of the occurrence of the event giving rise to the additional
cost, reduction in amounts, loss, tax or other additional amounts described in
such Section 2.10, 2.12 or 9.04(c), as the case may be, such Lender Party shall
not be entitled to compensation under such Section for any such amounts incurred
or accruing prior to the giving of such notice to the Appropriate Borrower.
SECTION 2.11. PAYMENTS AND COMPUTATIONS. (a) Each Borrower shall
make each payment owed by it hereunder and under the Notes, irrespective of any
right of counterclaim or set-off (except as otherwise provided in Section 2.15),
not later than 12:00 P.M. (New York City time) on the day when due (or, in the
case of payments made by the U.S. Borrower pursuant to Section 6.01, on the date
of demand therefor) in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by a
Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by a
Borrower is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
45
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available LC Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
(c) The Borrowers hereby authorize each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Appropriate Borrower's accounts with such Lender
Party any amount so due.
(d) All computations of interest, fees and commissions shall be made
by the Administrative Agent 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 interest, fees or commissions are
payable; PROVIDED that (i) interest in respect of which the rate of interest is
calculated on the basis of clause (a) of the definition of "Base Rate" contained
in Section 1.01, (ii) commitment fees payable pursuant to Section 2.08(a) and
(iii) Letter of Credit fees payable pursuant to Section 2.08(b) shall be
calculated on the basis of a year of 365 (or 366, as the case may be) days for
the actual number of days elapsed; and PROVIDED FURTHER that for purposes of the
INTEREST ACT (Canada), whenever interest hereunder is to be calculated at a rate
based upon a 360 day period (the "APPLICABLE RATE"), the rate or percentage of
interest on a yearly basis is equivalent to such Applicable Rate multiplied by
the actual number of days in the year divided by 360. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes 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; PROVIDED, HOWEVER, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice from
the Appropriate Borrower prior to the date on which any payment is due to any
Lender Party hereunder that such Borrower will not make such payment in full,
the Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each such Lender
Party on such due date an amount equal to the amount then due such Lender Party.
If and to the extent such Borrower shall not have so made such payment in full
to the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. TAXES. (a) Any and all payments by either Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
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, (i) in the case of each Lender Party and the
Administrative Agent, (A) taxes that are imposed on its overall net income by
the United States and taxes that are imposed on its overall net income or, in
the case of any Term A Lender, capital (and franchise taxes imposed in lieu
thereof) by the state, province or other jurisdiction under the laws of which
such Lender Party or the Administrative Agent (as the case may be) is organized
or any political subdivision thereof and (B) any taxes imposed on the
Administrative Agent or any Lender Party as a result of a current or
46
former connection between the Administrative Agent or such Lender Party, as the
case may be, and the jurisdiction imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection arising
from the Administrative Agent or such Lender Party having executed, delivered or
performed its obligations or received any payment under, or sought enforcement
of, this Agreement) and, (ii) (A) in the case of each Lender Party, taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state, province or other jurisdiction of such Lender Party's
Applicable Lending Office or any political subdivision thereof and (B) in the
case of each Term A Lender, taxes that are imposed on its overall capital under
the federal or provincial laws of Canada (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "TAXES")
unless such Borrower is required by law or the interpretation or administration
thereof to withhold or deduct Taxes. If either Borrower shall be required by law
or the interpretation or administration thereof by the relevant taxing authority
to deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender Party or the Administrative Agent, (x) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender Party or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (y) such Borrower shall make such deductions and (z) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law; PROVIDED, HOWEVER, that no
Borrower shall be required to increase any such amounts otherwise payable to a
Lender Party that is not organized under the laws of the United States or a
state thereof so long as such Lender Party fails to comply with the requirements
of subsection (e) below.
(b) In addition, each Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made by it hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "OTHER
TAXES").
(c) Each Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it 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 2.12, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be), and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto that would not have arisen but for the
Appropriate Borrower's failure to pay any Taxes or Other Taxes when due to the
appropriate taxing authority or remit to the Administrative Agent the receipts
or other documentary evidence required under subsection (d) below. This
indemnification shall be made within 30 days from the date such Lender Party or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Promptly after the date of any payment of Taxes, the Appropriate
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of such Borrower through an account or branch outside the United States or by or
on behalf of such Borrower by a payor that is not a United States person, if
such Borrower determines that no Taxes are payable in respect thereof, such
Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel reasonably
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms "UNITED
STATES" and "UNITED STATES PERSON" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
47
(e) Each Lender Party 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 Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing by the U.S.
Borrower (but only so long thereafter as such Lender Party remains lawfully able
to do so), provide each of the Administrative Agent and the U.S. Borrower with
two original properly completed and duly executed Internal Revenue Service forms
1001 or 4224 or (in the case of a Lender Party that has certified in writing to
the Administrative Agent that it is not a "bank" as defined in Section
881(c)(3)(A) of the Internal Revenue Code) form W-8 (and, if such Lender Party
delivers a form W-8, a certificate representing that such Lender Party is not a
"bank" for purposes of Section 881(c) of the Internal Revenue Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of such Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes or, in the case of a Lender
Party providing a form W-8, certifying that such Lender Party is a foreign
corporation, partnership, estate or trust. Each such Lender Party hereby agrees,
from time to time after the initial delivery by such Lender Party of such forms
or certificates, whenever a lapse in time or change in circumstances renders
such forms or certificates obsolete or inaccurate in any material respect, that
such Lender Party shall promptly (i) deliver to the U.S. Borrower and the
Administrative Agent two new original copies of Internal Revenue Service forms
1001 or 4224, or (in the case of a Lender Party that has certified in writing to
the Administrative Agent that it is not a "bank" as defined in Section
881(c)(3)(A) of the Internal Revenue Code) form W-8 (and, if such Lender Party
delivers a form W-8, a certificate representing that such Lender Party is not a
"bank" for purposes of Section 881(c) of the Internal Revenue Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of such Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, properly completed and duly
executed by such Lender Party or (ii) notify the Administrative Agent and the
U.S. Borrower of its inability to deliver any such forms or certificates. If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to this Agreement indicates 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 Lender Party provides the appropriate form
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
form; PROVIDED, HOWEVER, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) 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
Lender Party 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 of the
Original Credit Agreement (in the case of Lender Parties other than Term C
Lenders) or on the date hereof (in the case of Term C Lenders) by Internal
Revenue Service form 1001, 4224 or W-8 (or the related certificate described
above), that the Lender Party reasonably considers to be confidential, the
Lender Party shall give notice thereof to such Borrower and shall not be
obligated to include in such form or document such confidential information.
(f) In respect of any Term A Advance made to the Canadian Borrower
by any Lender Party, such Lender Party (i) represents and warrants to the
Canadian Borrower that, in respect of any payments of interest, fees or other
amounts constituting income that would be taxable to such Term A Lender pursuant
to Part I of the INCOME TAX ACT (CANADA) made to it by the Canadian Borrower,
48
such Lender Party will be entitled to receive such payments free and clear of,
and without any obligation on the part of the Canadian Borrower to make
deduction for or on account of, any income or capital taxes imposed by Canada or
any political subdivision or taxing authority thereof or therein, PROVIDED, that
such Lender Party is a resident of Canada for purposes of the INCOME TAX ACT
(CANADA) at the time such payments are made; and (ii) agrees that if such Lender
Party is not a resident of Canada at the time such payments are made that the
Canadian Borrower may withhold and remit Taxes pursuant to subsection (a) (and
(c), if applicable) and that such Lender Party shall not be entitled to
indemnification under subsection (a) or (c) with respect to Taxes or Other Taxes
imposed by Canada or any political subdivision or taxing authority thereof or
therein that arise by virtue of such Lender Party being a non-resident of Canada
for purposes of the INCOME TAX ACT (CANADA); and (iii) covenants and agrees to
promptly advise the U.S. Borrower if such Lender Party changes its residency for
purposes of the INCOME TAX ACT (CANADA) and to cooperate with the Canadian
Borrower to provide, at either Borrower's reasonable request, information
necessary to determine the amount of withholding or deduction that may be
required.
(g) For any period with respect to which either (i) a Lender Party
has failed to provide the U.S. Borrower 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) or (ii)
any representation or certification made by a Lender Party pursuant to
subsection (e) or (f) above is incorrect in any material respect at the time a
payment hereunder is made (other than by reason of any change in treaty, law or
regulation having effect after the date of such representation or certification
when made), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States or
Canada by reason of such failure or incorrectness, as the case may be; PROVIDED,
HOWEVER, that should a Lender Party become subject to Taxes because of its
failure to deliver a form required hereunder, such Borrower shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
(h) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office or designate a different
Applicable Lending Office if the making of such a change or designation would
avoid the need for, or reduce the amount of, any such additional amounts that
may thereafter accrue, PROVIDED that such change or designation is made on terms
that such Lender Party and its Applicable Lending Office suffer no economic,
legal or regulatory disadvantage, with the object of avoiding the consequence of
the event giving rise to the operation of subsection (a) or (c) above.
(i) If the U.S. Borrower determines in good faith that a reasonable
basis exists for contesting any taxes for which indemnification has been
demanded hereunder, the relevant Lender Party or the Administrative Agent, as
applicable, shall cooperate with the U.S. Borrower in challenging such taxes at
the U.S. Borrower's expense if so requested by the U.S. Borrower. If any Lender
Party or the Administrative Agent, as applicable, receives a refund of a tax for
which a payment has been made by the U.S. Borrower pursuant to this Section,
which refund in the good faith judgment of such Lender Party or Administrative
Agent, as the case may be, is attributable to such payment made by the U.S.
Borrower, then the Lender Party or the Administrative Agent, as the case may be,
shall reimburse the U.S. Borrower for such amount as the Lender Party or the
Administrative Agent, as the case may be, determines to be the proportion of the
refund as will leave it, after such reimbursement, in no better or worse
position than it would have been in if the payment had not been required. If a
Lender Party or the Administrative Agent is required to return all or a portion
of any refund for which reimbursement was made under the preceding sentence to
the authority that granted such refund, the U.S. Borrower shall pay over to such
Lender Party or the Administrative Agent, as the case may be, the portion of
such reimbursement as will leave such Lender Party or the Administrative Agent,
as the case may be, in no better or worse position than if no
49
such reimbursement had been made. A Lender Party or the Administrative Agent
shall claim any refund that it determines in good faith is available to it,
unless it concludes in its reasonable discretion that it would be adversely
affected by making such a claim; PROVIDED, HOWEVER, that each Lender Party and
the Administrative Agent shall be fully justified in refusing to claim any such
refund, unless, if it so requests, it shall first be indemnified to its
satisfaction against any expense that may be incurred by it in connection
therewith. Nothing herein contained shall interfere with the right of a Lender
or the Administrative Agent to arrange its tax affairs in whatever manner it
thinks fit nor oblige any Lender or the Administrative Agent to disclose any
information relating to its tax affairs or any computations in respect thereof
or require any Lender or the Administrative Agent to do anything that would
prejudice its ability to benefit from any other reliefs, remissions or
repayments to which it may be entitled.
(j) Each Lender Party represents and agrees that, on the date hereof
and at all times during the term of this Agreement, it is not and will not be a
conduit entity participating in a conduit financing arrangement (as defined
United States Treasury regulations Section 881-3) with respect to the Borrowings
hereunder (other than a conduit financing arrangement in which the Appropriate
Borrower, or an Affiliate thereof, is a financing entity) unless the Appropriate
Borrower has consented to such arrangement prior thereto.
SECTION 2.13. SHARING OF PAYMENTS, ETC. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) (a) on account of Obligations
due and payable to such Lender Party hereunder and under the Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Loan Documents at such time) of payments on
account of the Obligations due and payable to all Lender Parties hereunder and
under the Loan Documents at such time obtained by all the Lender Parties at such
time or (b) on account of Obligations owing (but not due and payable) to such
Lender Party hereunder and under the Loan Documents at such time in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations owing to such Lender Party at such time to (ii) the aggregate amount
of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Loan Documents at such time) of payments on account of
the Obligations owing (but not due and payable) to all Lender Parties hereunder
and under the Loan Documents at such time obtained by all of the Lender Parties
at such time, such Lender Party shall forthwith purchase from the other Lender
Parties such participations in the Obligations due and payable or owing to them,
as the case may be, as shall be necessary to cause such purchasing Lender Party
to share the excess payment ratably with each of them; PROVIDED, HOWEVER, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender Party, such purchase from each other Lender Party shall be
rescinded and such other Lender Party shall repay to the purchasing Lender Party
the purchase price to the extent of such Lender Party's ratable share (according
to the proportion of (i) the purchase price paid to such Lender Party to (ii)
the aggregate purchase price paid to all Lender Parties) of such recovery
together with an amount equal to such Lender Party's ratable share (according to
the proportion of (i) the amount of such other Lender Party's required repayment
to (ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered. Each Borrower agrees that any Lender
Party so purchasing a participation from another Lender Party pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender Party were the direct creditor of such
Borrower in the amount of such participation.
SECTION 2.14. USE OF PROCEEDS. The proceeds (i) of the Advances
(other than the Term C Advances) and issuances of Letters of Credit shall be
available (and each Borrower agrees that it shall use such proceeds and Letters
of Credit), directly or indirectly, solely to finance a portion of the cash
50
consideration paid in connection with the Acquisition and to pay transaction
fees and expenses associated therewith, and (ii) of the Term C Advances shall be
available (and each Borrower agrees that it shall use such proceeds), directly
or indirectly, solely to refinance debt incurred by the U.S. Borrower for the
purposes of consummating the AKW Acquisition and paying transaction fees and
expenses associated therewith and to prepay in part the Revolving Credit
Advances outstanding under the Original Credit Agreement, and, in each case, to
provide working capital for the U.S. Borrower and its Subsidiaries and for other
general corporate purposes.
SECTION 2.15. DEFAULTING LENDERS. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to either Borrower and (iii) such Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then such Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of such Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, such Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by such Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date under the Facility pursuant
to which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01. Such Advance shall be a Base Rate Advance and shall be
considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a). Each Borrower
shall notify the Administrative Agent at any time such Borrower exercises its
right of set-off pursuant to this subsection (a) and shall set forth in such
notice (A) the name of the Defaulting Lender and the Defaulted Advance required
to be made by such Defaulting Lender and (B) the amount set off and otherwise
applied in respect of such Defaulted Advance pursuant to this subsection (a).
Any portion of such payment otherwise required to be made by either Borrower to
or for the account of such Defaulting Lender which is paid by such Borrower,
after giving effect to the amount set off and otherwise applied by such Borrower
pursuant to this subsection (a), shall be applied by the Administrative Agent as
specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to the Administrative Agent or any of the other Lender Parties and (iii) the
Appropriate Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting Lender,
then the Administrative Agent may, on its behalf or on behalf of such other
Lender Parties and to the fullest extent permitted by applicable law, apply at
such time the amount so paid by such Borrower to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the Administrative
Agent shall so apply any such amount to the payment of any such Defaulted Amount
on any date, the amount so applied by the Administrative Agent shall constitute
for all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by such Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
51
(i) FIRST, to the Administrative Agent for any Defaulted Amount then
owing to the Administrative Agent; and
(ii) SECOND, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by such Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) either Borrower, the Administrative
Agent or any other Lender Party shall be required to pay or distribute any
amount hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then such Borrower or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with Citibank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts maintained with it. Any
interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c). The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in the following
order of priority:
(i) FIRST, to the Administrative Agent for any amount then due and
payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii) SECOND, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iii) THIRD, to such Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
52
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that either Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III.
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF
CREDIT. The obligation of each Lender to have made an Advance on the occasion of
the Initial Extension of Credit hereunder was subject to the satisfaction of the
following conditions precedent before or concurrently with the Initial Extension
of Credit:
(a) The Acquisition shall have been consummated in accordance with
the terms of the Stock Purchase Agreement without any waiver or amendment
thereto (unless such amendment or waiver in the reasonable judgment of the
Administrative Agent is not adverse in any material respect to the
interests of the Lender Parties), and in compliance with all applicable
laws.
(b) The U.S. Borrower (i) shall have received not less than
$108,000,000 in cash for the purchase of common equity by the Investor
Group, representing approximately 90% of the outstanding common equity,
and (ii) shall have received approximately $200,000,000 in gross cash
proceeds from the sale of the Subordinated Notes.
(c) The Administrative Agent shall be reasonably satisfied with the
corporate and legal structure and capitalization of each Loan Party,
including the terms and conditions of the charter, bylaws and each class
of capital stock of each Loan Party and of each agreement or instrument
relating to such structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied that all
Debt of the U.S. Borrower and its Restricted Subsidiaries outstanding
immediately before giving effect to the Acquisition, other than the Debt
(the "SURVIVING DEBT") identified on Schedule 3.01(d), has been prepaid,
redeemed or defeased in full or otherwise satisfied and extinguished and
that all such Debt on Schedule 3.01(d) shall be on terms and conditions
reasonably satisfactory to the Administrative Agent.
(e) Before giving effect to the Acquisition and the other
transactions contemplated by this Agreement, there shall have occurred no
material adverse change in the business, financial condition, operations,
assets, liabilities or prospects of any Loan Party or any of its
Subsidiaries since June 30, 1997.
(f) There shall have occurred no material adverse change in loan
syndication, financial or capital market conditions generally that has
impaired or could reasonably be expected to impair syndication of the
Facilities.
(g) 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 agency or arbitrator that (i)
would reasonably be likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of the
Acquisition, this Agreement,
53
any Note, any other Loan Document, any Related Document or the
consummation of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender Parties
to lead them to believe (i) that the Information Memorandum was or has
become misleading, incorrect or incomplete in any material respect, (ii)
that, following the consummation of the Acquisition, either Borrower or
its Subsidiaries would not have good and marketable title to all material
assets of such Borrower and such Subsidiaries reflected in the Information
Memorandum and (iii) that the Acquisition will have a Material Adverse
Effect; without limiting the generality of the foregoing, the Lender
Parties shall have been given such access to the management, records,
books of account, contracts and properties of the Borrowers and their
respective Restricted Subsidiaries as they shall have reasonably
requested.
(i) All governmental and third party consents and approvals
necessary in connection with the Acquisition, the Loan Documents and the
Related Documents and the transactions contemplated thereby shall have
been obtained (without the imposition of any conditions that are not
reasonably acceptable to the Administrative Agent) and shall remain in
effect; all applicable waiting periods shall have expired without any
action being taken by any competent authority; and no law or regulation
shall be applicable in the reasonable judgment of the Administrative Agent
that restrains, prevents or imposes materially adverse conditions upon the
Acquisition, the Loan Documents and the Related Documents and the
transactions contemplated thereby.
(j) The Administrative Agent shall have received the fees referred
to in Section 2.08(c) to be received on the Closing Date and under a
separate letter agreement dated December 2, 1997 between the U.S. Borrower
and the Administrative Agent.
(k) The Administrative Agent shall have received on or before the
day of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance reasonably
satisfactory to the Administrative Agent (unless otherwise specified) and
(except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes (other than the Term C Notes) payable to the
order of the Lenders (other than the Term C Lenders).
(ii) Certified copies of the resolutions of the Board of
Directors of each Borrower and each other Loan Party approving each
Loan Document and Related Document to which it is or is to be a
party and the transactions contemplated thereby, and of all
documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any,
with respect to the Acquisition, this Agreement, the Notes, each
other Loan Document and each Related Document.
(iii) A copy of a certificate of the Secretary of State of the
jurisdiction of its incorporation, or in the case of the Canadian
Borrower, the Ministry of Consumer and Commercial Relations of the
Province of Ontario ("THE ONTARIO MINISTRY"), dated reasonably near
the date of the Initial Extension of Credit, listing the charter of
each Borrower and each other Loan Party and each amendment thereto
on file in his office and certifying that (A) such amendments are
the only amendments to such Borrower's or such other Loan Party's
charter on file in his office, (B) each such Borrower and each such
other Loan Party have paid all franchise taxes to the date of such
certificate and (C) each Borrower and each other Loan Party are duly
incorporated and in good standing under the laws of the State or
Province of the jurisdiction of its incorporation.
54
(iv) A certificate of each Borrower and each other Loan Party,
signed on behalf of such Borrower and such other Loan Party by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated the date of the Initial Extension of Credit (the
statements made in which certificate shall be true on and as of the
date of the Initial Extension of Credit), certifying as to (A) the
absence of any amendments to the charter of such Borrower or such
other Loan Party since the date of the certificate referred to in
Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of
such Borrower and such other Loan Party as in effect on the date of
the Initial Extension of Credit, (C) the absence of any proceeding
for the dissolution or liquidation of such Borrower or such other
Loan Party, (D) the truth and accuracy of the representations and
warranties contained in the Loan Documents in all material respects
as though made on and as of the date of the Initial Extension of
Credit, (E) the absence of any event occurring and continuing, or
resulting from the Initial Extension of Credit, that constitutes a
Default, and (F) in the case of the U.S. Borrower only, the
completion of the restructuring contemplated by the memorandum
attached hereto as Schedule 3.01(l).
(v) A certificate of the Secretary or an Assistant Secretary
of each Borrower and each other Loan Party certifying the names and
true signatures of the officers of such Borrower and such other Loan
Party authorized to sign this Agreement, the Notes, each other Loan
Document and each Related Document to which they are or are to be
parties and the other documents to be delivered hereunder and
thereunder.
(vi) A pledge agreement in substantially the form of Exhibit D
to the Original Credit Agreement duly executed by the U.S. Borrower
and the Canadian Borrower, together with:
(A) certificates representing 100% of the issued and
outstanding stock (or other ownership or profit interest)
owned by the U.S. Borrower of all of its first-tier
Subsidiaries (other than Unrestricted Subsidiaries),
accompanied by undated stock powers executed in blank;
PROVIDED that no more than 66% of the issued and outstanding
stock of any first-tier Foreign Subsidiaries of the U.S.
Borrower (other than Unrestricted Subsidiaries and the
Canadian Borrower) shall be required to be pledged,
(B) copies of proper financing statements, to be duly
filed on or before the day of the Initial Extension of Credit
under the Uniform Commercial Code of all jurisdictions that
the Administrative Agent may deem necessary or desirable in
order to perfect and protect the first priority liens and
security interests created under such pledge agreement,
covering the Collateral described in the Pledge Agreement,
(C) completed requests for information, dated on or
before the date of the Initial Extension of Credit, listing
all other effective financing statements filed in the
jurisdictions referred to in clause (B) above that name the
U.S. Borrower or any other Loan Party as debtor, together with
copies of such other financing statements,
(D) evidence of the completion of all other recordings
and filings of or with respect to such pledge agreement that
the Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the Liens created
thereby, and
55
(E) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first priority
liens and security interests created under such pledge
agreement has been taken.
(vii) A guaranty in substantially the form of Exhibit E hereto
(together with each other guaranty or Subsidiaries Guaranty
Supplement required to be delivered pursuant to Section 5.01(k) or
Section 3.04, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms, the
"SUBSIDIARIES GUARANTY"), duly executed by each of the Subsidiary
Guarantors.
(viii) Certified copies of each of the Related Documents, duly
executed by the parties thereto and in form and substance
satisfactory to the Lender Parties, together with all agreements,
instruments and other documents delivered in connection therewith.
(ix) Such financial, business and other information regarding
each Loan Party as the Lender Parties shall have reasonably
requested, including, without limitation, (A) audited Consolidated
financial statements of the U.S. Borrower and its Consolidated
Subsidiaries for Fiscal Years 1995 and 1996, (B) unaudited
Consolidated financial statements of the U.S. Borrower and its
consolidated Subsidiaries for each Fiscal Quarter in Fiscal Year
1997 that ended more than 45 days prior to the initial Closing Date,
(C) a Consolidated pro forma balance sheet of the U.S. Borrower and
its Consolidated Subsidiaries as of the Closing Date after giving
effect to the Acquisition and other transactions and financings
contemplated by the Related Documents and the Loan Documents, and
(D) Consolidated forecasted financial statements of the U.S.
Borrower and its Consolidated Subsidiaries for the five-year period
after the Closing Date, all of the foregoing (including, without
limitation, the statements to be delivered pursuant to clauses (A)
through (D) above) to be in form and substance reasonably
satisfactory to the Administrative Agent.
(x) Letters and certificates, in substantially the form of
Exhibit H and I to the Original Credit Agreement, respectively,
attesting to the Solvency of each of the Borrowers after giving
effect to the Acquisition and the other transactions contemplated
hereby, from its chief financial officer or, in the case of the
Canadian Borrower, its assistant treasurer, and a nationally
recognized appraisal firm, valuation consultant or investment
banking firm satisfactory to the Administrative Agent.
(xi) A favorable opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, U.S. counsel
for the Borrowers, in substantially the form of Exhibit F to the
Original Credit Agreement and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(xii) A favorable opinion of Osler, ▇▇▇▇▇▇ & Harcourt,
Canadian counsel for the Canadian Borrower, in substantially the
form of Exhibit G to the Original Credit Agreement and as to such
other matters as any Lender Party through the Administrative Agent
may reasonably request.
(xiii) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
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(l) On or prior to the Closing Date the U.S. Borrower shall have
completed the restructuring contemplated by the memorandum attached hereto
as Schedule 3.01(l).
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING AND ISSUANCE.
The obligation of each Appropriate Lender to make an Advance (other than a
Letter of Credit Advance made by the Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c) and a Swing Line Advance made by a Revolving Credit
Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing (including
the Initial Extension of Credit), and the obligation of the Issuing Bank to
issue a Letter of Credit (including the initial issuance) or renew a Letter of
Credit and the right of the U.S. Borrower to request a Swing Line Borrowing,
shall be subject to the further conditions precedent that on the date of such
Borrowing or issuance or renewal (a) the following statements shall be true in
all material respects (and each of the giving of the applicable Notice of
Borrowing, Notice of Swing Line Borrowing, Notice of Issuance or Notice of
Renewal and the acceptance by the Appropriate Borrower of the proceeds of such
Borrowing or of such Letter of Credit or the renewal of such Letter of Credit
shall constitute a representation and warranty by such Borrower that both on the
date of such notice and on the date of such Borrowing or issuance or renewal
such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing or issuance or renewal
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
Borrowing or issuance or renewal, in which case, as of such specific date;
and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.03. DETERMINATIONS UNDER SECTIONS 3.01AND 3.04. For
purposes of determining compliance with the conditions specified in Sections
3.01 and 3.04, each Lender Party 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 Lender Parties unless an officer of the Administrative Agent responsible for
the transactions contemplated by the Loan Documents shall have received notice
from such Lender Party prior to the Initial Extension of Credit or making of the
Term C Advances, as the case may be, specifying its objection thereto and, if
the Initial Extension of Credit consists of a Borrowing and, in the case of the
Term C Borrowing, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's ratable portion of such Borrowing.
SECTION 3.04. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT. This Agreement shall become effective on and as of the date hereof
(the "EFFECTIVE DATE") when the following conditions precedent shall have been
satisfied:
(a) The Administrative Agent shall have received (i) counterparts of
this Agreement executed by each Borrower, the Administrative Agent and the
Lender Parties or, as to any of such Lender Party, notice from such Lender
Party that such Lender Party has executed a counterpart of this Agreement.
(b) The Administrative Agent shall have received the following, each
dated the date hereof (unless otherwise specified), in form and substance
reasonably satisfactory to the Administrative Agent (unless otherwise
specified) and in sufficient copies for each Lender Party:
57
(i) A security agreement, dated as of the date hereof, duly
executed by the U.S. Borrower and the other Grantors (as defined
therein) and in substantially the form of Exhibit D-1 hereto
(together with each other security agreement or security agreement
supplement delivered pursuant to Section 5.01(k), as amended,
supplemented or otherwise modified from time to time in accordance
with its terms, the "U.S. SECURITY AGREEMENT"), together with:
(A) copies of proper financing statements, to be duly
filed under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable
in order to perfect and protect the first priority security
interest created under the Collateral Documents,
(B) completed requests for information, dated on or
before the date hereof, listing all other effective financing
statements filed in the jurisdictions referred to in clause
(A) above that name the U.S. Borrower or any other Grantor as
debtor, together with copies of such other financing
statements,
(C) evidence of the insurance, if any, required by the
terms of the U.S. Security Agreement,
(D) executed termination statements (Form UCC-3 or a
comparable form), in proper form duly filed on the Effective
Date under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may have deemed desirable in
order to terminate or amend existing Liens on the Collateral
described in the U.S. Security Agreement, and
(E) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first priority
security interest created under the Collateral Documents has
been taken.
(ii) A second amended and restated pledge agreement, dated as
of the date hereof, duly executed by the U.S. Borrower and the other
Pledgors (as defined therein) and in substantially the form of
Exhibit D-2 hereto (together with each other pledge agreement or
pledge agreement supplement delivered pursuant to Section 5.01(k),
as amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "PLEDGE AGREEMENT"), together with:
(A) certificates representing the Pledged Shares (as
defined therein), if any, accompanied by undated stock powers
executed in blank and instruments evidencing the Pledged Debt
(as defined therein), if any, indorsed in blank.
(B) copies of proper financing statements, to be duly
filed on or before the Effective Date under the Uniform
Commercial Code of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests
created under the Collateral Documents, covering, among other
things, the Collateral described in the Pledge Agreement,
(C) completed requests for information, dated on or
before the Effective Date, listing all other effective
financing statements filed in the
58
jurisdictions referred to in clause (B) above that name the
U.S. Borrower or any other Pledgor as debtor, together with
copies of such other financing statements,
(D) evidence of the completion of all other recordings
and filings of or with respect to such Pledge Agreement that
the Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the Liens created
thereby, and
(E) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first priority
liens and security interests created under such Pledge
Agreement has been taken.
(iii) A security agreement, dated as of the date hereof, duly
executed by the Canadian Borrower and in substantially the form of
Exhibit D-3 hereto (together with each other security agreement or
security agreement supplement delivered pursuant to Section 5.01(k),
as amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "CANADIAN SECURITY AGREEMENT"),
together with:
(A) copies of proper financing statements or an
equivalent thereof under the laws of the Province of Ontario
or the federal laws of Canada, to be duly filed under the
Personal Property Security Act (Ontario) in all jurisdictions
in which the Administrative Agent may deem necessary or
desirable in order to perfect and protect the first priority
security interest created under the Collateral Documents,
(B) completed requests for information, dated on or
before the date hereof, listing all other effective financing
statements and an equivalent thereof filed in the
jurisdictions referred to in clause (A) above that name the
Canadian Borrower, together with copies of such other
financing statements an equivalent thereof or,
(C) evidence of the insurance, if any, required by the
terms of the Canadian Security Agreement,
(D) executed termination statements (or an equivalent
thereof), if any, in proper form duly filed on the Effective
Date under the Personal Property Security Act (Ontario) in all
jurisdictions in which the Administrative Agent may have
deemed desirable in order to terminate or amend existing Liens
on the Collateral described in the Canadian Security
Agreement, and
(E) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first priority
security interest created under the Collateral Documents has
been taken.
(iv) A consent (the "SUBSIDIARY GUARANTY CONSENT") to this
Agreement dated as of the date hereof and duly executed by the
Subsidiary Guarantors.
(v) A Subsidiary Guaranty Supplement dated as of the date
hereof and duly executed by Accuride Cuyahoga.
59
(vi) Such financial, business and other information regarding
each Loan Party as the Lender Parties shall have reasonably
requested, including, without limitation, (A) audited Consolidated
financial statements of the U.S. Borrower and its Consolidated
Subsidiaries for Fiscal Year 2000, (B) unaudited Consolidated
financial statements of the U.S. Borrower and its consolidated
Subsidiaries for each Fiscal Quarter in Fiscal Year 2001 that ended
more than 45 days prior to the Effective Date, and (C) Consolidated
forecasted financial statements of the U.S. Borrower and its
Consolidated Subsidiaries for the five-year period after the
Effective Date, all of the foregoing (including, without limitation,
the statements to be delivered pursuant to clauses (A) through (C)
above) to be in form and substance reasonably satisfactory to the
Administrative Agent.
(vii) Certified copies of the resolutions of the Board of
Directors (or Persons performing similar functions) of each Borrower
and each other Loan Party approving this Agreement and each other
Loan Document or Related Document to be delivered by it under this
Section 3.04 and the transactions contemplated thereby, and of all
documents evidencing other necessary corporate, limited liability
company, or partnership (as the case may be) action and governmental
and other third party approvals and consents, if any, with respect
to this Agreement, and such other Loan Document or Related Document.
(viii) With respect to each Loan Party (except the Canadian
Borrower), a copy of a certificate of the Secretary of the State of
Delaware or, in the case of the Canadian Borrower, a copy of a
certificate of the Ontario Ministry, each dated reasonably near the
date hereof, listing the constitutive documents of such each Loan
Party and each amendment thereto on file in his office or in the
Ontario Ministry and certifying that (A) such amendments are the
only amendments to such documents on file in his office or in the
Ontario Ministry, and (B) such Loan Party is duly formed and in good
standing under the laws of the State of Delaware or of the Province
of Ontario.
(ix) A certificate of each Borrower and each other Loan Party,
signed on behalf of such Borrower and such other Loan Party by its
President or a Vice President and its Secretary or any Assistant
Secretary or by a duly authorized officer in the case of AKW LP,
dated the date hereof (the statements made in which certificate
shall be true on and as of the date hereof), certifying as to (A)
either (x) the constitutive documents of such Loan Party attached
thereto or (y) the absence of any amendments to the constitutive
documents of such Borrower or such other Loan Party since the date
of the certificate referred to in Section 3.01(k)(iii), as
applicable, (B) if such Loan Party is a corporation, either (x) the
by-laws of such Loan Party attached thereto or (y) the absence of
any amendments to the bylaws of such Loan Party since the date of
the certificate referred to in Section 3.01(k)(iv), (C) the absence
of any proceeding for the dissolution or liquidation of such
Borrower or such other Loan Party, (D) the truth and accuracy of the
representations and warranties contained in the Loan Documents in
all material respects as though made on and as of the date hereof,
and (E) the absence of any event occurring and continuing, or
resulting from this Agreement, that constitutes a Default.
(x) A certificate of the Secretary, Assistant Secretary
managing member or duly authorized officer of each Borrower and each
other Loan Party certifying the names and true signatures of the
officers of such Borrower and such other Loan Party authorized to
sign this Agreement, the Notes, the Security Agreement, the Consent
and each other Loan Document to which such Loan Party is, or is to
be, a party and each other document to be delivered by it under this
Section 3.04.
60
(xi) An environmental assessment report, in form and substance
satisfactory to the Lender Parties, from an environmental consulting
firm acceptable to the Administrative Agent, as to any hazards,
costs or liabilities under Environmental Laws to which any Loan
Party or any of its Restricted Subsidiaries may be subject, the
amount and nature of which and the Borrowers' plans with respect to
which shall be acceptable to the Lender Parties, together with
evidence, in form and substance satisfactory to the Lender Parties,
that all applicable Environmental Laws shall have been complied
with. To the extent either the report or any other information that
may become available to the Lender Parties shall disclose any
hazards, costs or liabilities under Environmental Laws or otherwise
that the Lender Parties deem material, the Lender Parties shall be
satisfied that such hazards, costs or liabilities were adequately
reflected in the Borrowers' financial reserves shown on the
financial statements included in the Fiscal Year 2000 financial
statements or that, to the extent not so reflected, the Borrowers
have made adequate provision for such hazards, costs or liabilities.
(xii) A favorable opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, U.S. counsel
for the Borrowers, in substantially the form of Exhibit F hereto and
as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xiii) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General
Counsel of the U.S. Borrower, in substantially the form of Exhibit G
hereto and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xiv) A favorable opinion of Osler, ▇▇▇▇▇▇ & Harcourt,
Canadian counsel for the Canadian Borrower, in substantially the
form of Exhibit H hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(xv) A reliance letter issued by an environmental consulting
firm referred to in clause (x) above in substantially the form of
Exhibit J hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(xvi) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF EACH BORROWER. Each
Borrower represents and warrants as follows:
(a) Loan Parties - Due Organization and Formation; Good Standing;
Corporate, Company and Partnership Power and Authority; Capital Stock.
Each Loan Party (other than ▇▇▇▇▇▇▇▇▇ LLC, Columbia GP, AKW LLC and AKW
LP) (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) is
duly qualified and in good standing as a foreign corporation 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 be so qualified or in good standing has not had or would not
reasonably be likely to have a Material Adverse Effect and (iii) has all
requisite corporate power and authority (including, without limitation,
all material governmental licenses, permits and other
61
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted. All of the
outstanding capital stock of the U.S. Borrower has been validly issued, is
fully paid and non-assessable and is owned by the Investor Group in the
amounts specified on Schedule 4.01(a) free and clear of all Liens. Each of
▇▇▇▇▇▇▇▇▇ LLC and AKW LLC (i) is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of
Delaware, (ii) is duly qualified and in good standing 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 be so qualified or in good standing has not had or would not
reasonably be likely to have a Material Adverse Effect and (iii) has all
requisite limited liability company power and authority (including,
without limitation, all material governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted. AKW LP (i) is a
limited partnership duly formed, validly existing and in good standing
under the laws of the State of Delaware, (ii) is duly qualified and in
good standing 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 be so qualified or in good
standing has not had or would not reasonably be likely to have a Material
Adverse Effect and (iii) has all requisite partnership power and authority
(including, without limitation, all material governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted. Columbia GP (i) is a general partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware,
(ii) is duly qualified and in good standing 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 be
so qualified or in good standing has not had or would not reasonably be
likely to have a Material Adverse Effect and (iii) has all requisite
partnership power and authority (including, without limitation, all
material governmental licenses, permits and other approvals) to own or
lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(b) LOAN PARTIES' SUBSIDIARIES - DUE ORGANIZATION AND FORMATION;
GOOD STANDING; CORPORATE, LIMITED LIABILITY COMPANY OR PARTNERSHIP
AUTHORIZATION AND AUTHORITY; CAPITAL STOCK, MEMBERSHIP INTERESTS,
PARTNERSHIP INTERESTS. Set forth on Schedule 4.01(b) hereto is a complete
and accurate list of all Subsidiaries of each Loan Party as of the date of
such schedule, showing as of the date hereof (as to each such Subsidiary)
the jurisdiction of its incorporation or formation, the number of limited
liability company membership interests or partnership interests or shares
of each class of capital stock authorized, and the number outstanding, on
the date hereof and the percentage of the outstanding limited liability
company membership interests, partnership interests and shares of each
such class owned (directly or indirectly) by such Loan Party and the
number of limited liability company membership interests, partnership
interests or shares covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights at the date hereof. All of
the outstanding capital stock, limited liability company membership
interests and partnership interests of all of such Subsidiaries have been
validly issued, are fully paid and non-assessable 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 Loan Documents. Each such Subsidiary (i) is
a corporation, limited liability company or partnership (as applicable)
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or formation, (ii) is duly qualified
and in good standing as a foreign corporation or other entity 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 be so qualified or in good standing has not had or
would not reasonably be likely to have a Material Adverse Effect and (iii)
has all requisite corporate, limited liability company or partnership (as
applicable) power and authority
62
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to carry
on its business as now conducted and as proposed to be conducted.
(c) DUE AUTHORIZATION OF LOAN DOCUMENTS; NON-CONTRAVENTION, ETC. The
execution, delivery and performance of each Loan Document and each Related
Document have been duly authorized by all necessary corporate, limited
liability company or partnership (as applicable) action on the part of
each Loan Party that is a party thereto, and do not (i) contravene such
Loan Party's charter or bylaws, partnership agreement or limited liability
company agreement, as the case may be, or any of its other constitutive
documents, (ii) violate any applicable provision of any material law
(including, without limitation, the Securities Exchange Act of 1934 and
the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970), 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
applicable to such Borrower or to its Subsidiaries, (iii) result in the
breach of, or constitute a default under, any loan agreement, indenture,
mortgage, deed of trust or other financial instrument, or any material
contract or agreement, 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 Loan 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.
(d) GOVERNMENTAL AND THIRD PARTY APPROVALS. Other than those that
have already been obtained and as set forth in Schedule 4.01(d) and are in
full force and effect, or as would not reasonably be expected to have a
Material Adverse Effect, no authorization or approval (including, in the
case of the Canadian Borrower, exchange control approval) or other action
by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan Party
of any Loan Document or any Related Document to which it is or is to be a
party and (ii) the consummation of the transactions contemplated by the
Loan Documents and the Related Documents.
(e) DUE EXECUTION AND DELIVERY; BINDING OBLIGATION. Each of the Loan
Documents has been duly executed and delivered by each Loan Party party
thereto and is the legal, valid and binding obligation of each Loan Party
party thereto, enforceable against such Loan Party in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditor's rights generally or by
general principles of equity.
(f) HISTORICAL FINANCIAL STATEMENTS. The Consolidated balance sheet
of each of such Borrower and its respective Subsidiaries as at December
31, 2000, and the related Consolidated statements of income and cash flow
of such Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Deloitte & Touche LLP, independent public
accountants, copies of which have been furnished to each Lender Party,
fairly present in all material respects the Consolidated financial
condition of such Borrower and its respective Subsidiaries as at such
dates and the Consolidated results of the operations of such Borrower and
its Subsidiaries for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent
basis (unless otherwise expressly noted therein), and since December 31,
2000, there has been no Material Adverse Change other than as a result of
the current slow down in the North American trucking industry existing as
of the date hereof.
(g) FORECASTS. The Consolidated forecasted balance sheets, income
statements and cash flows statements of the U.S. Borrower and its
Subsidiaries delivered to the Lender Parties
63
pursuant to Section 3.04(b)(iii) or 5.03 were prepared in good faith on
the basis of the estimates and assumptions stated therein, which estimates
and assumptions were believed to be reasonable and fair in the light of
conditions existing at the time made, it being understood by the Lender
Parties that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any
such projections may differ from the projected results.
(h) OTHER INFORMATION. Neither the Information Memorandum nor the
AKW Information Memorandum nor any other information, exhibit or report
furnished by any Loan Party to the Administrative Agent or any Lender
Party in writing in connection with the negotiation of the Loan Documents
or pursuant to the terms of the Loan Documents contained any untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements made herein and therein, taken as a whole, not
misleading at such time in light of the circumstances in which the same
were made, it being understood that for purposes of this Section 4.01(i),
such factual information does not include projections and pro forma
financial information.
(i) LITIGATION, ETC. There is no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or, to the
knowledge of either Borrower, threatened before any court, governmental
agency or arbitrator that (i) could reasonably be expected to have a
Material Adverse Effect or (ii) purports to affect the legality, validity
or enforceability of the Acquisition, the AKW Acquisition, this Agreement,
any Note, any other Loan Document or any Related Document or the
consummation of the transactions contemplated hereby.
(j) COMPLIANCE WITH MARGIN REGULATIONS. (i) Such Borrower is not
engaged in the business of extending credit for the purpose of purchasing
or carrying Margin Stock, and no proceeds of any Advance or drawings under
any Letter of Credit 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.
(ii) Following application of the proceeds of each Advance or
drawing under each Letter of Credit, not more than 25 percent of the value
of the assets (either of either Borrower only or of either Borrower and
its Subsidiaries on a Consolidated basis) subject to the provisions of
Section 5.02(a) or 5.02(d) or subject to any restriction contained in any
agreement or instrument between either Borrower and any Lender Party or
any Affiliate of any Lender Party relating to Debt and within the scope of
Section 7.01(e) will be Margin Stock.
(k) EMPLOYEE BENEFIT PLANS AND ERISA RELATED MATTERS. (i) Each Plan
is in compliance with ERISA, the Internal Revenue Code and any applicable
Requirement of Law; no Reportable Event has occurred (or is reasonably
likely to occur) with respect to any Plan; no Plan is insolvent or in
reorganization (or is reasonably likely to be insolvent or in
reorganization), and no written notice of any such insolvency or
reorganization has been given to the Borrower, any Subsidiary or any ERISA
Affiliate; no Plan (other than a multiemployer plan ) has an accumulated
or waived funding deficiency (or is reasonably likely to have such a
deficiency); neither any Loan Party nor any ERISA Affiliate has incurred
(or is reasonably expected to incur) any liability to or on account of a
Plan pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069,
4201 or 4204 of ERISA or Section 4971 or 4975 of the Internal Revenue Code
or has been notified in writing that it will incur any liability under any
of the foregoing Sections with respect to any Plan; no proceedings have
been instituted (or are reasonably likely to be instituted) to terminate
or to reorganize any Plan or to appoint a trustee to administer any Plan,
and no written notice of any such proceedings has been given to any Loan
Party or any ERISA Affiliate; and no lien
64
imposed under the Internal Revenue Code or ERISA on the assets of any Loan
Party or any ERISA Affiliate exists on account of any Plan (or is
reasonably likely to exist) nor has any Loan Party or any ERISA Affiliate
been notified in writing that such a lien will be imposed on the assets of
any Loan Party or any ERISA Affiliate on account of any Plan, EXCEPT to
the extent that a breach of any of the foregoing representations and
warranties in this Section 4.01(k)(i) would not result, individually or in
the aggregate, in an amount of liability that would be reasonably likely
to have a Material Adverse Effect. No Plan (other than a multiemployer
plan) has an Unfunded Current Liability that would, individually or when
taken together with any other liabilities referenced in this Section
4.01(k)(i), be reasonably likely to have a Material Adverse Effect. With
respect to Plans that are multiemployer plans (as defined in Section 3(37)
of ERISA), the representations and warranties in this Section 4.01(k)(i),
other than any made with respect to (a) liability under Section 4201 or
4204 of ERISA or (b) liability for termination or reorganization of such
Plans under ERISA, are made to the best knowledge of the Borrowers.
(ii) With respect to each scheme or arrangement mandated by a
government other than the United States (a "FOREIGN GOVERNMENT SCHEME OR
ARRANGEMENT") and with respect to each employee benefit plan maintained or
contributed to by any Subsidiary of any Loan Party that is not subject to
United States law (a "Foreign PLAN"), except as in the aggregate could not
reasonably be expected to have Material Adverse Effect:
(A) Any employer and employee contributions required by law or
by the terms of any Foreign Government Scheme or Arrangement or any
Foreign Plan have been made, or if applicable, accrued, in
accordance with normal accounting practices.
(B) The fair market value of the assets of each funded Foreign
Plan, the liability of each insurer for any Foreign Plan funded
through insurance or the book reserve established for any Foreign
Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the
date hereof, with respect to all current and former participants in
such Foreign Plan according to the actuarial assumptions and
valuations most recently used to determine employer contributions to
such Foreign Plan.
(C) Each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities.
(l) ENVIRONMENTAL MATTERS. (i) Other than instances of
non-compliance that could not reasonably be expected to have a Material
Adverse Effect: (A) the U.S. Borrower and its Subsidiaries are in
compliance with all Environmental Laws and all Environmental Permits in
all jurisdictions in which U.S. Borrower and each of its Subsidiaries are
currently doing business (including, without limitation having obtained
all material Environmental Permits required under Environmental Laws) and
(B) the U.S. Borrower will comply and cause each of their Subsidiaries to
comply with all such Environmental Laws (including, without limitation,
all Environmental Permits required under Environmental Laws).
(ii) Neither U.S. Borrower nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any
currently or formerly owned real estate or facility relating to its
business in a manner that could reasonably be expected to have a Material
Adverse Effect.
(iii) Except for non-compliance that could not reasonably be
expected to result in a Material Adverse Effect and except as disclosed in
Schedule 4.01(l), all past non-compliance with
65
Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could (A)
form the basis of an Environmental Action against any Loan Party or any of
its Subsidiaries or any of the properties described in the Mortgages that
could have a Material Adverse Effect or (B) cause any such property to be
subject to any restrictions on ownership, occupancy, current use or
transferability under any Environmental Law.
(iv) Except as disclosed in Schedule 4.01(l), 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 any analogous
foreign, state or local list or, to the knowledge of any Loan Party, is
adjacent to any such property.
(v) Except as disclosed in Schedule 4.01(l) and for events or
conditions that could not reasonably be expected to result, either
individually or in the aggregate, in a material liability to any Loan
Party, (A) neither any Loan Party or any of its Subsidiaries, nor, to the
knowledge of any Loan Party, any other Person has owned or operated 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
described in the Mortgages or, to the best of its knowledge, on any
property formerly owned or operated by any Loan Party or any of its
Subsidiaries; (B) there is no asbestos or asbestos-containing material on
any property currently owned or operated by any Loan Party or any of its
Subsidiaries or described in the Mortgages; (C) there are no wetlands or
any areas subject to any legal requirement or restriction in any way
related to wetlands (including, without limitation, requirements or
restrictions related to buffer or transition areas or open waters) at or
affecting any property currently owned or operated by any Loan Party or
any of its Subsidiaries or described in the Mortgages; and (D) neither any
Loan Party or any of its Subsidiaries, nor, to the knowledge of any Loan
Party, any other Person has released or discharged Hazardous Materials on
any property currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries or described in any of the Mortgages.
(vi) Except as disclosed in Schedule 4.01(l) and for investigations,
assessments or actions that could not reasonably be expected to result,
either individually or in the aggregate, in a material liability to any
Loan Party, neither any Loan Party or any of its Subsidiaries, nor, to the
knowledge of any Loan Party, any other party, is undertaking, 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 material quantities
or concentrations of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any governmental
or regulatory authority or the requirements of any Environmental Law; and
all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries or described in the
Mortgages have been disposed of in a manner not reasonably expected to
result in material liability to any Loan Party or any of its Subsidiaries.
(m) SECURITIES LAWS. 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.
(n) SOLVENCY. Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
66
(o) EXISTING DEBT. Set forth on Schedule 4.01(p) hereto is a
complete and accurate list of all Existing Debt, showing as of the date of
such Schedule the principal amount outstanding thereunder, and such
principal amount has not been increased from that amount shown on such
Schedule.
(p) SURVIVING DEBT. Set forth on Schedule 3.01(d) hereto is a
complete and accurate list of all Debt surviving the Initial Extension of
Credit, showing as of the date of such Schedules the principal amount
outstanding thereunder, the maturity date thereof and the amortization
schedule therefor, and such principal amount has not been increased from
that amount shown on such Schedule.
(q) OWNED REAL PROPERTY. Set forth on Schedule 4.01(q) hereto is a
complete and accurate list as of the Effective Date of all real property
owned by the U.S. Borrower or any of its Restricted Subsidiaries, showing
as of the Effective Date the street address, county or other relevant
jurisdiction, state, record owner and book value thereof. Such U.S.
Borrower or such Restricted Subsidiary has good, marketable and insurable
fee simple title to such real property, free and clear of all Liens, other
than Permitted Liens and Liens created under the Loan Documents. To the
best of the U.S. Borrower's knowledge, except as set forth on Schedule
4.01(q), all of the improvements located on the properties listed on
Schedule 4.01(q) lie entirely within the boundaries of such properties and
none of such improvements violate any minimum set-back requirements, other
dimensional regulations or restrictions of record.
(r) LEASED REAL PROPERTY. Set forth on Schedule 4.01(r) hereto is a
complete and accurate list as of the Effective Date of all leases of real
property under which the U.S. Borrower or any of its Restricted
Subsidiaries is the lessee, showing as of the Effective Date the street
address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.
(s) LEASES OF REAL PROPERTY. Set forth on Schedule 4.01(s) hereto is
a complete and accurate list as of the Effective Date of all leases (the
"LEASES") of real property under which the U.S. Borrower or any of its
Restricted Subsidiaries is the landlord, showing as of the Effective Date
the street address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost thereof. Each such lease is
the legal, valid and binding obligation of the lessee thereof, enforceable
in accordance with its terms.
(t) INTELLECTUAL PROPERTY. Set forth on Part A of Schedule 4.01(t)
hereto is a complete and accurate list as of the Effective Date of all
United States and Canadian registered patents, trademarks, trade names,
service marks and copyrights, and all applications therefor and licenses
thereof, of the U.S. Borrower or any of its Restricted Subsidiaries,
showing as of the Effective Date the jurisdiction in which registered and
the registration numbers. Set forth on Part B of Schedule 4.01(t) hereto
is a list, which is complete and accurate in all material respects, as of
the Effective Date of all other registered patents, trademarks, trade
names, service marks and copyrights, and all applications therefor and
licenses thereof, of the U.S. Borrower or any of its Restricted
Subsidiaries, showing as of the Effective Date the jurisdiction in which
registered and the registration numbers.
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ARTICLE V.
COVENANTS OF THE BORROWERS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, each Borrower 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,
except such as may be contested in good faith or as to which a bona fide
dispute may exist and except to the extent that noncompliance therewith
could not reasonably be expected to have a Material Adverse Effect.
(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 material taxes, assessments and governmental charges
or levies imposed upon it or upon its property prior to the date on which
material penalties attach thereto, and (ii) all lawful material claims
that, if unpaid, might by law become a material Lien upon the property of
the U.S. Borrower or its Restricted Subsidiaries not otherwise expressly
permitted under this Agreement; PROVIDED, HOWEVER, that neither Borrower
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 (in the good
faith judgment of its management) are being maintained in accordance with
GAAP.
(c) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Restricted Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations (at the time the relevant
coverage is placed or renewed) in such amounts and covering such risks as
is usually carried by companies engaged in the same or similar businesses
and owning similar properties in the same general areas in which such
Borrower or such Restricted Subsidiary operates.
(d) PRESERVATION OF CORPORATE, LIMITED LIABILITY COMPANY AND
PARTNERSHIP 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), permits, licenses, approvals,
privileges and franchises, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect;
PROVIDED, HOWEVER, that each Borrower and its Restricted Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(c) and
PROVIDED FURTHER that neither Borrower nor any of its Restricted
Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of such
Borrower or such Restricted Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of such Borrower or such Restricted Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to
such Borrower, such Restricted Subsidiary or the Lender Parties.
(e) CONDUCT OF BUSINESS. From and after the Closing Date, engage,
and cause its Subsidiaries (taken as a whole) to engage, primarily in (i)
the vehicle component business and any activity or business incidental,
directly related or similar thereto, or any other lines of business
carried on by such Borrower and its Subsidiaries on the Closing Date or
utilizing such Borrower's or Subsidiaries' manufacturing capabilities on
the Closing Date and (ii) other
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businesses or activities that constitute a reasonable extension,
development or expansion thereof or that are ancillary or reasonably
related thereto.
(f) VISITATION RIGHTS. At any reasonable time and from time to time,
upon reasonable notice and during normal business hours, permit any
authorized representatives designated by the Administrative Agent or the
Majority Lenders to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, such
Borrower and any of its Restricted Subsidiaries, and to discuss the
affairs, finances and accounts of such Borrower and any of its Restricted
Subsidiaries with any of their officers or directors and with their
independent certified public accountants, PROVIDED that such Borrower may,
if it so chooses, be present at or participate in any such discussion.
(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 such Borrower 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 Restricted Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business
(including intellectual property) in good working order and condition,
ordinary wear and tear excepted, in each case consistent with past
practice, and will from time to time make or cause to be made all
appropriate repairs, renewals and replacements thereof, except where the
failure to do so would not reasonably be likely to have a Material Adverse
Effect.
(i) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of its
Restricted Subsidiaries to conduct, all transactions otherwise permitted
under the Loan Documents with any of their Affiliates on terms that are
fair and reasonable and no less favorable to such Borrower or such
Restricted Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate, other than (i) transactions
between or among the Loan Parties and any Restricted Subsidiaries of the
U.S. Borrower, (ii) payment of customary annual fees to KKR or its
Affiliates for management consulting and financial services rendered to
such Borrower and its Restricted Subsidiaries and investment banking fees
paid to KKR or its Affiliates for services rendered to such Borrower and
its Restricted Subsidiaries in connection with divestitures, acquisitions,
financings and other transactions to the extent permitted under this
Agreement, (iii) reasonable and customary fees paid to members of the U.S.
Borrower's board of directors, (iv) transactions permitted by Section
5.02(f), and (v) transactions otherwise expressly permitted hereunder.
(j) APPLICATION OF TERM A ADVANCE. On the day on which the Term A
Loan is borrowed, cause the proceeds received by the Canadian Borrower
from the Term A Advance to be distributed by dividend or intercompany loan
to the U.S. Borrower, net of the amount of any Canadian withholding taxes
or to repay outstanding intercompany loans owed to the U.S. Borrower.
(k) COVENANT TO GUARANTY OBLIGATIONS AND TO GIVE SECURITY. When (a)
any new Restricted Subsidiary of the U.S. Borrower is formed, acquired or
designated by the U.S. Borrower or any of its Restricted Subsidiaries, or
(b) the acquisition of any property, real or personal, by any Loan Party
is made, and such property, in the judgment of the Administrative Agent,
shall not already be subject to a perfected first priority security
interest in favor of the Administrative Agent for the benefit of the
Secured Parties, then, in each case at the expense of the U.S. Borrower:
69
(i) within 20 days after such formation, acquisition or
designation, in the case of a new Restricted Subsidiary that is a
Domestic Subsidiary of the U.S. Borrower or any of its Restricted
Subsidiaries, cause each such Restricted Subsidiary to duly execute
and deliver to the Administrative Agent a Subsidiaries Guaranty
Supplement under which such Restricted Subsidiary guarantees payment
of all the Obligations of the Borrowers under the Loan Documents;
PROVIDED that no Restricted Subsidiary which is not wholly-owned
(directly or indirectly) by the U.S. Borrower and the organizational
documents or agreements with other shareholders of which prohibit
the execution, delivery or performance of any such guaranty shall be
required to execute, deliver or perform such guaranty if, after
using its reasonable efforts, the U.S. Borrower has failed to obtain
any necessary consents or approvals for the issuance of such
guaranty,
(ii) within 20 days after such formation, acquisition or
designation in the case of a wholly-owned Restricted Subsidiary
which is a first-tier Subsidiary of the U.S. Borrower, cause the
U.S. Borrower, to pledge the stock or other equity interests of each
such Restricted Subsidiary and to duly execute and deliver a Pledge
Agreement Supplement covering such stock and/or a new pledge
agreement in substantially the form of the Pledge Agreement or
otherwise in form and substance satisfactory to the Administrative
Agent, pledging 100% of the issued and outstanding stock or other
equity interests owned by the U.S. Borrower in such Restricted
Subsidiary, together with delivery to the Administrative Agent of
certificates representing such pledged stock or other equity
interests accompanied by undated stock powers or other appropriate
powers or assignments executed in blank; PROVIDED, in the case of a
first-tier Restricted Subsidiary which is a Foreign Subsidiary
(other than Canadian Borrower) the U.S. Borrower shall not be
required to pledge more than 66% of the issued and outstanding stock
or other equity interests of such Restricted Subsidiary, and
PROVIDED FURTHER, that the stock of any Restricted Subsidiary which
is not wholly-owned (directly or indirectly) will be owned by a
wholly owned first-tier Restricted Subsidiary of the U.S. Borrower
whose stock or other equity interests have been pledged in
accordance with the Loan Documents,
(iii) within 20 Business Days after such request, formation or
acquisition, in the case of a new Restricted Subsidiary that is a
Domestic Subsidiary of the U.S. Borrower or any of its Restricted
Subsidiaries, cause each such Restricted Subsidiary to duly execute
and deliver to the Administrative Agent a Security Agreement
Supplement (as defined in the U.S. Security Agreement), securing
payment of all the Obligations of the Loan Parties under the Loan
Documents and constituting Liens on all properties specified in such
Security Agreement Supplement; PROVIDED that no Restricted
Subsidiary which is not wholly-owned (directly or indirectly) by the
U.S. Borrower and the organizational documents or agreements with
other shareholders of which prohibit the execution, delivery or
performance of any such security agreement shall be required to
execute, deliver or perform such security agreement if, after using
its reasonable efforts, the U.S. Borrower has failed to obtain any
necessary consents or approvals for the execution, delivery or
performance of such security agreement,
(iv) within 20 Business Days after such request, formation or
acquisition, in the case of a new Restricted Subsidiary that is a
Canadian Subsidiary of the Canadian Borrower or any of its
Restricted Subsidiaries, cause each such Restricted Subsidiary to
duly execute and deliver to the Administrative Agent a Security
Agreement Supplement (as defined in the Canadian Security
Agreement), securing payment of all the Obligations of the Canadian
Borrower under the Loan Documents and constituting Liens on all
70
properties specified in such Security Agreement Supplement; provided
that no Restricted Subsidiary which is not wholly-owned (directly or
indirectly) by the Canadian Borrower and the organizational
documents or agreements with other shareholders of which prohibit
the execution, delivery or performance of any such security
agreement shall be required to execute, deliver or perform such
security agreement if, after using its reasonable efforts, the
Canadian Borrower has failed to obtain any necessary consents or
approvals for the execution, delivery or performance of such
security agreement,
(v) within 20 days after such request, formation or
acquisition, furnish to the Administrative Agent all necessary
information with respect to such Restricted Subsidiary and its
Restricted Subsidiaries which may be required to update the
applicable Schedules to this Agreement and to the Collateral
Documents, respectively,
(vi) within 30 days after such request, formation or
acquisition, in the case of a new Restricted Subsidiary that is a
Domestic Subsidiary of the U.S. Borrower or any of its Restricted
Subsidiaries, duly execute and deliver, and cause each such
Restricted Subsidiary, and cause each direct and indirect parent of
such Restricted Subsidiary to duly execute and deliver to the
Administrative Agent Mortgages, pledges, proper financing
statements, assignments, security agreement supplements and other
security agreements, as specified by and in form and substance
reasonably satisfactory to the Administrative Agent, securing
payment of all the Obligations of the Loan Parties under the Loan
Documents and constituting Liens on all such properties; PROVIDED
that no Restricted Subsidiary which is not wholly-owned (directly or
indirectly) by the U.S. Borrower and the organizational documents or
agreements with other shareholders of which prohibit the execution,
delivery or performance of any such Mortgages, pledges, proper
financing statements, assignments, security agreement supplements
and other security agreements shall be required to execute, deliver
or perform such Mortgages, pledges, proper financing statements,
assignments, security agreement supplements and other security
agreements if, after using its reasonable efforts, the U.S. Borrower
has failed to obtain any necessary consents or approvals for the
execution, delivery or performance of such Mortgages, pledges,
proper financing statements, assignments, security agreement
supplements and other security agreements,
(vii) within 30 days after such request, formation or
acquisition, duly execute and deliver, and cause each such
Subsidiary, and cause each direct and indirect parent of such
Subsidiary (other than any Foreign Subsidiary) 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 Administrative
Agent to vest in the Administrative Agent (or in any representative
of the Administrative Agent designated by it) valid and subsisting
Liens on the properties purported to be subject to the mortgages,
pledges, assignments, security agreement supplements and other
security agreements delivered pursuant to this Section 5.01(k),
enforceable against all third parties in accordance with their
terms,
(viii) as promptly as practicable after such request,
formation or acquisition, deliver, upon the reasonable request of
the Administrative Agent, to the Administrative Agent with respect
to each material parcel of real property owned, leased or held by
the entity that is the subject of such request, formation or
acquisition Mortgage Policies, Opinions (as defined in Section
5.01(n)(iii)(G)), Surveys, environmental assessment reports and, to
the extent available, engineering, soils and other reports, each in
scope,
71
form and substance satisfactory to the Administrative Agent,
PROVIDED, HOWEVER, that (A) to the extent that the U.S. Borrower or
any of its Restricted 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
Administrative Agent, and (B) the Administrative Agent may, in its
sole discretion, waive any of the foregoing requirements with
respect to any such parcels of real property owned, leased or held.
(ix) 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 Administrative Agent 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 agreements and security agreement supplements,
and
(x) within 60 days after such request, deliver to the
Administrative Agent a signed copy of a favorable opinion, addressed
to the Administrative Agent, of counsel for the Borrowers reasonably
acceptable to the Administrative Agent as to the matters contained
in clauses (i), (ii) and (iii) above, as to such guarantees and
security agreements being legal, valid and binding obligations of
each of the Borrowers and their respective Restricted Subsidiaries
enforceable in accordance with their terms and as to such other
matters as the Administrative Agent may reasonably request.
(l) INVESTMENTS IN CANADIAN BORROWER. In the case of the U.S.
Borrower, make loans or advances, or make equity contributions, to the
Canadian Borrower from time to time in amounts sufficient to enable the
Canadian Borrower to perform its Obligations pursuant to Sections 2.02(d),
2.04, 2.06, 2.07, 2.12, 9.04(b) and 9.14(b).
(m) ESTABLISHMENT OF CASH MANAGEMENT SYSTEMS. Within 180 days of the
Closing Date, establish and maintain lockbox accounts and other cash
management systems reasonably acceptable to the Administrative Agent.
(n) POST-CLOSING DELIVERIES. Within 30 days of the Effective Date
(unless otherwise indicated below), deliver (i) copies of the Assigned
Agreements (as defined in the Security Agreement), if any, and, if it can
be obtained with commercially reasonable efforts, a consent to such
assignment, in substantially the form of Exhibit C to the Security
Agreement, duly executed by each party to such Assigned Agreements other
than the Loan Parties, (ii) to the extent they can be obtained with
commercially reasonable efforts, landlord consents and bailee letters with
respect to the leased premises or warehouses indicated by an asterisk on
Schedule III to the Security Agreement and in form and substance
reasonably satisfactory to the Administrative Agent, (iii) counterparts of
deeds of trust, trust deeds and/or mortgages (together with each other
mortgage delivered pursuant to item (iv) below and Section 5.01(k), in
each case as amended, the "MORTGAGES"), in substantially the form of
Exhibit K hereto and covering the properties listed on Schedule 5.01(n)
(the "PROPERTIES") and not marked with an asterisk, duly executed by the
appropriate Loan Party, and (iv) to the extent that they can be obtained
with commercially reasonable efforts, counterparts of Mortgages covering
the Properties marked with an asterisk on Schedule 5.01(n), duly executed
by the appropriate Loan Party, and with respect to the Mortgages delivered
pursuant to items (iii) and (iv) above, together with:
(A) within 60 days of the Effective Date, fully paid
American Land Title Association Lender's Extended Coverage
title insurance policies (the "MORTGAGE POLICIES") in form and
substance, with endorsements and in amount reasonably
acceptable to the Administrative Agent, issued, coinsured and
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reinsured by title insurers (the "TITLE COMPANY") acceptable
to the Administrative Agent, insuring the Mortgages as of the
time of the Effective Date to be valid first and subsisting
Liens on the property described therein, free and clear of all
defects (including, but not limited to, mechanics' and
materialmen's Liens) and encumbrances, excepting only
Permitted Liens and Liens created under the Loan Documents,
and providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and
for mechanics' and materialmen's Liens) and such coinsurance
and direct access reinsurance as the Administrative Agent may
have deemed reasonably necessary or desirable; provided that
with respect to any of the Properties that is located in
Canada, in lieu of the Mortgage Policies, a legal opinion in
form and substance and from Canadian counsel reasonably
acceptable to the Agent shall be required,
(B) within 60 days of the Effective Date, American Land
Title Association form surveys (the "SURVEYS"), dated no more
than 60 days after the Effective Date, certified to the
Administrative Agent and the issuer of the Mortgage Policies
in a manner satisfactory to the Administrative Agent by a land
surveyor duly registered and licensed in the States in which
the Properties are located and acceptable to the
Administrative Agent, showing all buildings and other
improvements, any off-site improvements, the location of any
easements, parking spaces, rights of way, building set-back
lines and other dimensional regulations and the absence of
encroachments, either by such improvements or on to such
Properties, and other defects, other than encroachments and
other defects acceptable to the Administrative Agent; PROVIDED
that, notwithstanding the foregoing, no Survey shall be
required for any Property unless either (i) the Title Company
requires a Survey in order to issue the applicable Mortgage
Policy without a Survey exception or (ii) a Survey is required
in order for the Administrative Agent to obtain any
endorsement which the Agent reasonably requests from the Title
Company;
(C) to the extent available, an appraisal of each of the
Properties,
(D) to the extent available, engineering, soils and
other reports with respect to each of the Properties,
(E) to the extent they can be obtained with commercially
reasonable efforts, such consents and agreements of landlords
with respect to any real property leased by any Loan Party as
the Administrative Agent may have deemed necessary or
desirable,
(F) evidence of the insurance required by the terms of
the Mortgages,
(G) opinions of local counsel (the "OPINIONS") for the
Borrowers in the states in which the Properties are located
with respect to the enforceability of the Mortgages and any
related fixture filings, in form and substance reasonably
satisfactory to the Administrative Agent, and, with respect to
the Property located in Ontario, Canada, such opinion shall
also opine as to the status of title,
(H) to the extent they can be obtained with commercially
reasonable efforts, subordination and non-disturbance
agreements and estoppel certificates,
73
if any, executed by all tenants under the Leases in which any
Loan Party is a landlord, and
(I) evidence that all other actions that the
Administrative Agent may have reasonably deemed necessary or
desirable in order to create valid first and subsisting Liens
on the Properties have been taken.
Notwithstanding anything to the contrary in this Section 5.01(n), for any of the
Properties in which the interest of the applicable Loan Party is a leasehold
interest and for which the consent of the landlord or other action by the
landlord is required in order for the applicable Loan Party to comply with the
provisions of this Section 5.01(n), the U.S. Borrower agrees to use, and to
cause each of the other Loan Parties to use, commercially reasonable efforts to
obtain such consent or cause the landlord to take such other action; however, if
after use of such commercially reasonable efforts, any landlord consent is not
obtained or any landlord does not take such other action, then the Loan Parties
shall not be required to deliver the applicable Mortgage, Mortgage Policies or
other items required hereunder or to undertake the applicable action.
(o) 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 the U.S. Borrower 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.
(p) PREPARATION OF ENVIRONMENTAL REPORTS. At the request of the
Agent from time to time, provide to the Lender Parties within 60 days
after such request, at the expense of the U.S. Borrower, 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 Administrative Agent, 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
Administrative Agent determines at any time that a material risk exists
that any such report will not be provided within the time referred to
above, the Administrative Agent may retain an environmental consulting
firm to prepare such report at the expense of the Borrower, and the U.S.
Borrower 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 Administrative Agent, the Lender Parties, such firm and any agents
or representatives thereof an irrevocable non-exclusive license, subject
to the rights of tenants, to enter onto its or their respective properties
to undertake such an assessment.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, neither Borrower will, at any time:
74
(a) LIENS, ETC. Create, incur, assume or suffer to exist, or permit
any of its Restricted 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, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 5.02(a) hereto;
(iv) (A) purchase money Liens upon or in real property or
equipment acquired or held by the Borrowers or any of their
Restricted 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 and (B) Liens to
secure Debt incurred within 270 days of the acquisition,
construction or improvement of fixed or capital assets to finance
the acquisition, construction or improvement of such fixed or
capital assets or otherwise incurred during such 270 day period in
respect of Capital Expenditures permitted pursuant to Section
5.02(j); 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
subject to the Lien being extended, renewed or replaced; and
PROVIDED FURTHER, HOWEVER, that the aggregate principal amount of
the Debt secured by Liens permitted by this clause (iv) shall not
exceed the aggregate amount permitted under Section 5.02(b)(iii)(B)
at any time outstanding and that any such Debt shall not otherwise
be prohibited by the terms of the Loan Documents;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii)(B); PROVIDED that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(vi) Liens on property of a Person existing at the time such
Person becomes a Restricted Subsidiary of either Borrower or is
merged into or consolidated with such Borrower or any Restricted
Subsidiary of such Borrower in accordance with Section 5.02(c),
PROVIDED that such Liens were not created in contemplation of such
merger, consolidation or investments and do not extend to any assets
other than those of the Person merged into or consolidated with such
Borrower or such Subsidiary or acquired by such Borrower or such
Subsidiary;
(vii) Liens to secure Debt permitted pursuant to Section
5.02(b)(iii)(F); PROVIDED that such Liens do not extend to any
assets other than the property or stock of the Person or Persons
with respect to which the related Investment was made;
(viii) the replacement, extension or renewal of any Lien
permitted hereunder upon or in the same property theretofore subject
thereto or the replacement, extension or
75
renewal (without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby;
(ix) Liens on the stock and/or assets of the Mexico Subsidiary
to secure Debt permitted under Section 5.02(b)(ii)(B); and
(x) other Liens securing Obligations of the U.S. Borrower and
its Restricted Subsidiaries in an aggregate principal amount
(inclusive of those amounts set forth in Section 5.02(a)(iv) and
(v)) not to exceed $10,000,000 at any time outstanding; PROVIDED
that such aggregate principal amount shall be increased to
$25,000,000 on the date of delivery, pursuant to Section 5.03(b)(i),
of financial statements showing the Leverage Ratio as less than
4.50:1.00.
(b) DEBT. Create, incur, assume or suffer to exist, or permit any of
its Restricted Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) in the case of the Borrowers,
(A) Subordinated Debt evidenced by the Subordinated Notes
and any Debt extending the maturity of, or refinancing, in
whole or in part such Subordinated Notes, PROVIDED that the
terms of any such extension or refinancing, and of any
agreement entered into and of any instrument issued in
connection therewith, are not prohibited by the Loan
Documents, PROVIDED FURTHER that the principal amount of such
Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension or
refinancing, PROVIDED FURTHER that the terms relating to
principal amount, amortization, maturity, interest rate,
subordination, and other material terms of any such extension
or refinancing 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
Lender Parties than the terms of the Subordinated Notes,
(B) Debt in respect of Hedge Agreements incurred in the
ordinary course of business and consistent with prudent
business practice, and
(C) Debt consisting of any undertaking by the U.S.
Borrower to guaranty the obligations of the Mexico Subsidiary,
in an aggregate principal amount not to exceed $15,625,000;
(ii) in the case of any of its Restricted Subsidiaries (A)
Debt owed to the Borrowers or to a Restricted Subsidiary of the
Borrowers, and (B) in the case of the Mexico Subsidiary only, Debt
in an aggregate amount not to exceed $22,500,000 at any time
outstanding; and
(iii) in the case of the Borrowers and any of their Restricted
Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section
5.02(a)(iv) and Capitalized Leases not to exceed an aggregate
principal amount equal to $10,000,000 at any time outstanding,
PROVIDED that such aggregate principal
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amount shall be increased to $25,000,000 on the date of
delivery, pursuant to Section 5.03(b)(ii), of quarterly
financial statements showing the Leverage Ratio as less than
4.50:1.00,
(C) 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 not prohibited by the Loan Documents, PROVIDED
FURTHER that the principal amount of such Surviving Debt shall
not be increased above the principal amount thereof
outstanding 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,
(D) Debt of any Person existing at the time such Person
is merged into or consolidated with, or acquired by, either
Borrower or any Restricted Subsidiary or becomes a Restricted
Subsidiary of either Borrower in accordance with the
provisions of Section 5.02(e)(ix); PROVIDED that such Debt was
not incurred in contemplation of such merger, consolidation or
investment; and PROVIDED FURTHER that neither Borrower nor any
Restricted Subsidiary which acquired such Person is liable for
such Debt; PROVIDED FURTHER that the Leverage Ratio in effect
on the date of, and immediately after, the incurrence of such
Debt is less than 4.50:1.00; and PROVIDED FURTHER that the
aggregate principal amount of all Debt incurred pursuant
hereunder shall, when taken together with any Debt incurred
pursuant to clause (F) of this Section 5.02(b)(iii), in no
event exceed $50,000,000 in the aggregate at any time
outstanding,
(E) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business,
(F) Debt incurred in connection with an Investment made
pursuant to Section 5.02(e)(ix); PROVIDED that the aggregate
principal amount of all Debt incurred pursuant hereunder
shall, when taken together with any Debt incurred pursuant to
clause (D) of this Section 5.02(b)(iii), in no event exceed
$50,000,000 in the aggregate at any time outstanding,
(G) Debt consisting of guaranty Obligations in the
ordinary course of business of the obligations of suppliers,
customers, franchisees and licensees of the U.S. Borrower and
its Restricted Subsidiaries in an aggregate principal amount
not to exceed $10,000,000,
(H) Debt in respect of any bankers' acceptance, letter
of credit, warehouse receipt or similar facilities entered
into in the ordinary course of business, and
(I) other Debt outstanding in an aggregate principal
amount not to exceed $10,000,000 at any time outstanding,
PROVIDED that such principal aggregate amount shall be
increased to $25,000,000 on the date of delivery, pursuant to
Section 5.03(b)(ii), of quarterly financial statements showing
the Leverage Ratio as less than 4.50:1.00.
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(c) MERGERS, ETC. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Restricted
Subsidiaries to do so, except that:
(i) any Subsidiary of either Borrower may merge into or
consolidate with any other Subsidiary of such Borrower, PROVIDED
that, in the case of any such merger or consolidation, the Person
formed by such merger or consolidation shall be a wholly owned
Restricted Subsidiary of such Borrower,
(ii) in connection with any acquisition permitted under
Section 5.02(e), any Restricted Subsidiary of either Borrower may
merge into or consolidate with any other Person or permit any other
Person to merge into or consolidate with it; PROVIDED that the
Person surviving such merger shall be a wholly owned Restricted
Subsidiary of such Borrower,
(iii) any Subsidiary of either Borrower may merge into or
consolidate with such Borrower, PROVIDED that that such Subsidiary
shall have no Debt, other than Debt permitted to be incurred by the
U.S. Borrower under Section 5.02(b), and PROVIDED FURTHER such
Borrower shall be the surviving entity in any such merger or
consolidation, and
(iv) in connection with any acquisition permitted under
Section 5.02(e), the U.S. Borrower may merge into or consolidate
with any other Person or permit any other Person to merge into or
consolidate with it; PROVIDED that (A) the Person surviving such
merger or consolidation shall be the U.S. Borrower or shall assume
all obligations of the U.S. Borrower under the Loan Documents in a
manner reasonably satisfactory to the Administrative Agent, (B) such
merger or consolidation shall not result in a Change of Control, and
(C) the Person surviving such merger or consolidation shall have no
Debt other than Debt permitted to be incurred by the U.S. Borrower
under Section 5.02(b).
(d) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted 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, transfers or other dispositions of used or surplus
equipment, vehicles, inventory or other assets in the ordinary
course of its business;
(ii) sales of assets for fair value in a single transaction or
a series of related transactions in an aggregate amount not to
exceed $15,000,000, PROVIDED that such sales of assets shall not
exceed $25,000,000 in the aggregate in any Fiscal Year; PROVIDED
FURTHER that (A) any non-cash consideration in respect of such sale
in the form of Debt of any Person in an amount in excess of
$5,000,000 shall be evidenced by a promissory note which shall be
pledged to the Administrative Agent for the benefit of the Secured
Parties pursuant to the Pledge Agreement as security for the
Obligations of such pledgor hereunder, and the Net Cash Proceeds of
any such sales shall be applied pursuant to, and in the amount and
the order of priority set forth in, Section 2.06(b)(ii), (B)
immediately before and after giving effect to such sale, no Default
shall have occurred and be continuing or would result therefrom and
(C) with respect to any such sale (or series of related sales) in an
aggregate amount in excess of $10,000,000, immediately after giving
effect to such sale, the U.S. Borrower and its Restricted
Subsidiaries shall be in pro forma compliance with the covenants
contained in Section 5.04, calculated based on the relevant
financial statements delivered pursuant to Section 5.03(b)(ii) or
(c), as though
78
such sale had occurred at the beginning of the Measurement Period
covered thereby, as evidenced by a certificate of the chief
financial officer of the U.S. Borrower furnished to the Lender
Parties demonstrating such compliance;
(iii) sales or contributions of equipment or other personal
property to Restricted Subsidiaries or other joint ventures;
PROVIDED that the aggregate fair market value of the assets so sold
or contributed to such other joint ventures (determined, in each
case, at the time of such sale or contribution) does not exceed
$15,000,000 during the term of this Agreement, and PROVIDED FURTHER
that the assets so sold or contributed to a Restricted Subsidiary
shall be subject to a perfected first priority security interest in
favor of the Administrative Agent for the benefit of the Secured
Parties; and
(iv) sale for fair value of the Light Wheels Facility.
(e) INVESTMENTS IN OTHER PERSONS. Make or hold, or permit any of its
Restricted Subsidiaries to make or hold, any Investment in any Person
other than:
(i) Investments existing on December 31, 1997 and described on
Schedule 5.02(e), and any extensions, renewals or reinvestments
thereof, so long as the aggregate amount of all Investments pursuant
to this clause (measured by the amount actually invested) is not
increased at any time above the amount of such Investments existing
on such date;
(ii) loans and advances to employees (A) existing on June 30,
2001, (B) related to travel and relocation expenses in an aggregate
amount not to exceed $250,000 in any Fiscal Year, and (C) other
loans and advances to employees for the purchase of capital stock of
the U.S. Borrower in an aggregate amount not to exceed $750,000 in
any Fiscal Year;
(iii) Investments by the Borrowers and their Restricted
Subsidiaries in Cash Equivalents;
(iv) Investments by the Borrowers in Hedge Agreements prmitted
under Section 5.02(b)(i)(B);
(v) Investments consisting of intercompany Debt permitted
under Section 5.02(b)(ii) and other Investments permitted under this
Section 5.02(e) by the Borrowers and their Restricted Subsidiaries
in Persons that are Restricted Subsidiaries at the time of the
making of such Investments;
(vi) Investments received in connection with the bankruptcy or
reorganization of suppliers or customers and in settlement of
delinquent obligations of, and other disputes with, customers
arising in the ordinary course of business;
(vii) Investments constituting non-cash proceeds of sales,
transfers and other dispositions of assets in connection with the
sale or other disposition of the Light Wheels Facility;
(viii) In the case of the U.S. Borrower, Investments required
pursuant to Section 5.01(l);
79
(ix) (A) Investments in Restricted Subsidiaries and (B)
Investments in other Persons in an aggregate amount for all such
Investments not to exceed $140,000,000, PROVIDED that (x) no more
than $20,000,000 of the aggregate amount of such Investments is
funded with (1) internally generated funds and cash on the balance
sheet of the U.S. Borrower and its Restricted Subsidiaries plus (2)
Advances hereunder, (y) any Debt used to make such Investments shall
not exceed $50,000,000 as set forth in Section 5.02(b)(iii)(F), and
(z) the making of such Investments shall not increase the then
existing Leverage Ratio; PROVIDED FURTHER that with respect to all
such Investments (A) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or would
result therefrom; (B) any business acquired or invested in pursuant
to this clause shall comply with the requirements of Section
5.01(e); (C) immediately after giving effect to such Investment or
the acquisition of a company or business pursuant to this clause,
the U.S. Borrower and its Restricted Subsidiaries shall be in pro
forma compliance with the covenants contained in Section 5.04,
calculated based on the relevant financial statements delivered
pursuant to Section 5.03(b)(ii) or (c), as though such Investment or
acquisition had occurred at the beginning of the Measurement Period
covered thereby, as evidenced by a certificate of the chief
financial officer of the U.S. Borrower furnished to the Lender
Parties demonstrating such compliance; and (D) the Leverage Ratio,
calculated based on the relevant financial statements delivered
pursuant to Section 5.03(b)(ii) or (c), as though such Investment or
acquisition had occurred at the beginning of the Measurement Period
covered thereby, as evidenced by a certificate of the chief
financial officer of the U.S. Borrower furnished to the Lender
Parties demonstrating such compliance, in each case shall be less
than 4.50:1.00; and
(x) (A) Investments in Restricted Subsidiaries and (B)
Investments in other Persons in an aggregate amount for all such
Investments not to exceed $50,000,000, PROVIDED that (x) no more
than $10,000,000 of the aggregate amount of such Investments is
funded with (1) internally generated funds and cash on the balance
sheet of the U.S. Borrower and its Restricted Subsidiaries plus (2)
Advances hereunder, (y) other Debt permitted under Section
5.02(b)(iii)(I) may be used to make such Investments, PROVIDED that,
if such Debt is secured by Liens permitted under Section 5.02(a)(x),
then such Liens shall not extend to any assets other than the
property or stock of the Person or Persons with respect to which the
related Investment was made, and (z) the making of such Investments
shall not increase the then existing Leverage Ratio; PROVIDED
FURTHER that with respect to all such Investments (A) immediately
before and after giving effect thereto, no Default shall have
occurred and be continuing or would result therefrom; (B) any
business acquired or invested in pursuant to this clause shall
comply with the requirements of Section 5.01(e); and (C) immediately
after giving effect to such Investment or the acquisition of a
company or business pursuant to this clause, the U.S. Borrower and
its Restricted Subsidiaries shall be in pro forma compliance with
the covenants contained in Section 5.04, calculated based on the
relevant financial statements delivered pursuant to Section
5.03(b)(ii) or (c), as though such Investment or acquisition had
occurred at the beginning of the Measurement Period covered thereby,
as evidenced by a certificate of the chief financial officer of the
U.S. Borrower furnished to the Lender Parties demonstrating such
compliance;
(f) DIVIDENDS, ETC. In the case only of the U.S. Borrower, declare
or pay any dividends, purchase, redeem, retire, defease or otherwise
acquire for value any of its capital stock or any warrants, rights or
options to acquire such capital stock, now or hereafter outstanding,
return any capital to its stockholders as such, make any distribution of
assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such, or permit any of its Subsidiaries
to
80
purchase, redeem, retire, defease or otherwise acquire for value any
capital stock of the U.S. Borrower or any warrants, rights or options to
acquire such capital stock or to issue or sell any such capital stock or
any warrants, rights or options to acquire such capital stock, 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) the U.S.
Borrower may declare and pay dividends and distributions payable only in
common stock of the U.S. Borrower, (ii) the U.S. Borrower may redeem in
whole or in part any capital stock of the U.S. Borrower for another class
of capital stock or rights to acquire capital stock of the U.S. Borrower
or with proceeds from substantially concurrent equity contributions or
issuances of new shares of capital stock, PROVIDED that such other class
of capital stock contains terms and provisions at least as advantageous to
the Lender Parties as those contained in the capital stock redeemed
thereby, (iii) the U.S. Borrower may repurchase shares of its capital
stock (and/or options or warrants in respect thereof) held by its
officers, directors and employees in an aggregate amount not to exceed
$2,000,000 in any Fiscal Year, PROVIDED that the unused portion of such
amount may not be carried over into the next Fiscal Year, so long as such
repurchase is pursuant to, and in accordance with the terms of, management
and/or employee stock plans, stock subscription agreements on shareholder
agreements, and (iv) the U.S. Borrower may, so long as after giving effect
to the payment of any dividends pursuant to this subclause (iv) the
Leverage Ratio is less than or equal to 4.00:1.00, pay dividends in any
Fiscal Year in an amount not to exceed 50% of the Cumulative Available
Consolidated Net Income.
(g) PREPAYMENTS, ETC. OF DEBT. 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
Subordinated Debt, other than (i) the prepayment of the Advances in
accordance with the terms of this Agreement, (ii) prepayments, repurchases
or redemptions made with the proceeds of equity cash contributions by the
Investor Group to the U.S. Borrower, (iii) any prepayment of Debt owed by
any Loan Party to any other Loan Party, (iv) any prepayment in an
aggregate principal amount not to exceed $25,000,000 of that certain
Industrial Revenue Bond dated November 16, 1999 by and between The
Industrial Development Board of Maury County, Tennessee, as Issuer,
Accuride Kentucky Holding Company (and its assigns), as Purchaser, and
Accuride Corporation, Accuride Columbia General Partnership and Accuride
▇▇▇▇▇▇▇▇▇ Limited Liability Company (and their assigns), as Users; and (v)
any exchange of Subordinated Debt for preferred or common stock of the
U.S. Borrower, PROVIDED HOWEVER that such exchange (A) is made in
satisfaction of any Obligations owed by the U.S. Borrower under, or in
connection with, such Subordinated Debt and (B) shall not result in any
Change of Control.
(h) AMENDMENT, ETC. OF DOCUMENTS. Amend or otherwise change, or
consent to any amendment or change of, any of the terms of the AKW LLC
Agreement, the AKW LP Agreement or any Subordinated Debt Document in a
manner that would be adverse to the Lender Parties in any material respect
or permit any of its Subsidiaries to do any of the foregoing; PROVIDED,
HOWEVER, that the U.S. Borrower may cause AKW LLC or AKW LP to merge or
liquidate into the U.S. Borrower or a wholly-owned Restricted Subsidiary
of the U.S. Borrower, in each case subject to Section 5.02(c), without a
breach of this subsection (h), subject to the provisions of Section
5.01(k).
(i) PARTNERSHIPS, ETC. Become a general partner in any general or
limited partnership or joint venture which is not a limited liability
entity, or permit any of its Restricted Subsidiaries to do so, other than
any Restricted Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture.
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(j) CAPITAL EXPENDITURES. (i) Make, or permit any of its Restricted
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate amount of all Capital Expenditures of the U.S. Borrower and its
Restricted Subsidiaries in any Fiscal Year (exclusive of those described
in clauses (ii) and (v), but inclusive of (iii) and (iv), below) to exceed
an amount equal to (A) for the Fiscal Year 1998, $35,000,000, (B) for the
Fiscal Years 1999 and 2000, the greater of $20,000,000 and 5% of
Consolidated Revenues as determined for and at the end of the prior Fiscal
Year, (C) for the Fiscal Years 2001 and 2002, $27,000,000 and $26,000,000,
respectively, and (D) for each year thereafter, the greater of $15,000,000
and 5% of Consolidated Revenues, in each case as determined for and at the
end of the prior Fiscal Year, PROVIDED that the unused portion of Capital
Expenditures permitted in any Fiscal Year and not used in such period may
be carried over and added to the amount otherwise permitted in the
immediately three succeeding Fiscal Years, it being understood that for
purposes of the foregoing, the Borrowers and their Restricted Subsidiaries
shall be deemed to have used the amount originally available during each
such succeeding Fiscal Year prior to any such carry-over amount, and
PROVIDED FURTHER that the aggregate amount so carried over at any time may
not exceed $5,000,000;
(ii) Make, or permit any of its Restricted Subsidiaries to make, any
Capital Expenditures in (a) the light wheel business in order to expand or
optimize capacity to provide incremental or replacement business to major
original equipment manufacturers or (b) any business acquired in accordance with
the terms of this Agreement, except that such Capital Expenditures may be made
in an amount not to exceed $15,000,000 for each of the Fiscal Years 2002 and
2003 and $20,000,000 for the Fiscal Year 2004;
(iii) Make or permit any of its Restricted Subsidiaries to make, any
Capital Expenditures in the Mexico Facility, except that the Mexico
Subsidiary may make such Capital Expenditures in an amount not to exceed
(A) $5,500,000 in the aggregate from June 30, 2001 through December 31,
2002, (B) $12,000,000 in the aggregate in the Fiscal Years 2003, 2004 and
2005, and thereafter in amounts to be agreed upon by and between the U.S.
Borrower and the Administrative Agent;
(iv) Make, or permit any of its Restricted Subsidiaries to make, any
Capital Expenditures for AKW LP during the period from June 30, 2001
through December 31, 2002, except that such Capital Expenditures may be
made in an amount not to exceed $12,000,000 in the aggregate from June 30,
2001 through December 31, 2002;
(v) Make, or permit any of its Restricted Subsidiaries to make, any
additional Capital Expenditures, except that such additional Capital
Expenditures may be made using the proceeds from cash equity contributions
by the Investor Group to the U.S. Borrower.
(k) NEGATIVE PLEDGE. Enter into or suffer to exist, or permit any of
its Restricted 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 other than (i) in favor of the
Secured Parties or (ii) in connection with (A) any Surviving Debt or (B)
any Debt permitted by Section 5.02(b)(i)(A), or (iii) customary
restrictions in subordinated debt documents requiring equal and ratable
liens if other subordinated debt is secured.
SECTION 5.03. REPORTING REQUIREMENTS. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, each Borrower will furnish to the Lender
Parties:
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(a) DEFAULT OR LITIGATION NOTICE. Promptly upon any Responsible
Officer of either Borrower or any of their respective Subsidiaries
obtaining knowledge thereof, notice of (i) the occurrence of any event
that constitutes a Default or an Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and what
action the appropriate Borrower proposes to take with respect thereto, and
(ii) any litigation or governmental proceeding pending against either
Borrower or any of their respective Subsidiaries that could reasonably be
expected to result in a Material Adverse Effect.
(b) INTERIM FINANCIALS. (i) MONTHLY FINANCIALS. Until such time as
the Leverage Ratio is less than 4.50:1.00 and within 30 days after the end
of each month, a Consolidated management internally generated balance
sheet of the U.S. Borrower and its Restricted Subsidiaries as of the end
of such month and Consolidated statements of income and a Consolidated
statement of cash flows of the U.S. Borrower and its Restricted
Subsidiaries for the period commencing at the end of the previous month
and ending with the end of such month, setting forth in comparative form
the corresponding figures for the corresponding period of (A) the
preceding Fiscal Year (starting from July 31, 2002), and (B) the
applicable annual forecast delivered pursuant to Section 5.03(d), all in
reasonable detail and duly certified (subject to quarterly adjustments and
year-end audit adjustments) by the chief financial officer of such U.S.
Borrower.
(ii) QUARTERLY FINANCIALS. As soon as available and in any event
within 45 days after the end of each of the first three Fiscal Quarters of each
Fiscal Year, a Consolidated balance sheet of the U.S. Borrower and its
Subsidiaries and, if the U.S. Borrower has any Unrestricted Subsidiaries, the
U.S. Borrower and its Restricted Subsidiaries, in each case as of the end of
such Fiscal Quarter and the related Consolidated statements of income and cash
flow for the period commencing at the end of the previous Fiscal Quarter and
ending with the end of such Fiscal Quarter and for the period commencing at the
end of the previous Fiscal Year and ending with the end of such Fiscal Quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding period of (A) the preceding Fiscal Year, and (B) the applicable
annual forecast delivered pursuant to Section 5.03(d), all in reasonable detail
and duly certified (subject to year-end audit adjustments) by the chief
financial officer of such Borrower 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 such Borrower has taken
and proposes to take with respect thereto, and (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by the U.S.
Borrower in determining compliance with the covenants contained in Sections
5.02(j) and 5.04, PROVIDED that in the event of any change in GAAP used in the
preparation of such financial statements, the U.S. Borrower shall also provide,
if necessary for the determination of compliance with Sections 5.02(j) and 5.04,
a statement of reconciliation conforming such financial statements to GAAP.
(c) ANNUAL FINANCIALS. As soon as available and in any event within
90 days after the end of each Fiscal Year, a Consolidated balance sheet of
(i) the U.S. Borrower and its Subsidiaries and (ii) if the U.S. Borrower
has any Unrestricted Subsidiaries, the U.S. Borrower and its Restricted
Subsidiaries, in each case as of the end of such Fiscal Year and the
related Consolidated statements of income and cash flow for such Fiscal
Year setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year, accompanied by an opinion which
shall be unqualified as to the scope of the audit and as to the going
concern status of the U.S. Borrower and its Subsidiaries or the U.S.
Borrower and its Restricted Subsidiaries, as the case may be, taken as a
whole, of Deloitte & Touche LLP or other independent public accountants of
recognized standing acceptable to the Majority Lenders, together with (A)
a certificate of such accounting firm to the Lender Parties stating that
in the course of the regular audit of the business of the U.S. Borrower
and its Subsidiaries or the U.S. Borrower and its Restricted Subsidiaries,
as the case may be, which audit was conducted by such accounting firm
83
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 or
Event of Default has occurred and is continuing, a statement as to the
nature thereof, (B) a schedule in form satisfactory to the Administrative
Agent of the computations used by the U.S. Borrower in determining, as of
the end of such Fiscal Year, compliance with the covenants contained in
Sections 5.02(j) and 5.04, PROVIDED that in the event of any change in
GAAP used in the preparation of such financial statements, the U.S.
Borrower shall also provide, if necessary for the determination of
compliance with Sections 5.02(j) and 5.04, a statement of reconciliation
conforming such financial statements to GAAP and (C) a certificate of the
chief financial officer of the U.S. Borrower 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 the
U.S. Borrower has taken and proposes to take with respect thereto.
(d) ANNUAL FORECASTS. As soon as available and in any event no later
than 60 days after the beginning of each Fiscal Year, forecasts prepared
by management of such Borrower, in reasonable detail and in form
customarily prepared by management of such Borrower for its internal use
and setting forth an explanation for the principal assumptions on which
such forecasts were based, of balance sheets, income statements and cash
flow statements on a monthly basis for the Fiscal Year following such
Fiscal Year then ended and on an annual basis for each of the four Fiscal
Years thereafter.
(e) ERISA. Promptly after any Loan Party or any ERISA Affiliate
obtains knowledge, or has reason to know, of the occurrence of any of the
following events that individually or in the aggregate (including in the
aggregate such events previously disclosed or exempt from disclosure
hereunder, to the extent the liability therefor remains outstanding),
would be reasonably likely to have a Material Adverse Effect, a
certificate of a Responsible Officer of the U.S. Borrower setting forth
details as to such occurrence and the action, if any, that any Loan Party
or any ERISA Affiliate is required or proposes to take, together with any
notices (required, proposed or otherwise) given to or filed with or by or
received by any Loan Party, any ERISA Affiliate, the PBGC, a Plan
participant (other than notices relating to an individual participant's
benefits) or the Plan administrator with respect thereto: that a
Reportable Event has occurred; that an accumulated funding deficiency has
been incurred or an application has been or is to be made to the Secretary
of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of
any amortization period under Section 412 of the Internal Revenue Code
with respect to a Plan; that a Plan having an Unfunded Current Liability
has been or is to be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA (including the giving of written notice
thereof); that a Plan has an Unfunded Current Liability that has or is
reasonably expected to result in a lien under ERISA or the Internal
Revenue Code; that proceedings are reasonably expected to be or have been
instituted to terminate a Plan having an Unfunded Current Liability
(including the giving of written notice thereof); that a proceeding has
been instituted against any Loan Party or any ERISA Affiliate pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Plan; that
the PBGC has notified any Loan Party or any ERISA Affiliate of its
intention to appoint a trustee to administer any Plan; that any Loan Party
or any ERISA Affiliate has failed to make a required installment or other
payment pursuant to Section 412 of the Internal Revenue Code with respect
to a Plan; or that any Loan Party or any ERISA Affiliate has incurred or
is reasonably expected to incur (or has been notified in writing that it
will incur) any liability (including any contingent or
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secondary liability) to or on account of a Plan pursuant to Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or
Section 4971 or 4975 or the Internal Revenue Code.
(f) ENVIRONMENTAL CONDITIONS. Promptly after obtaining knowledge of
any one or more of the following environmental matters, unless such
environmental matters would not, individually or when aggregated with all
other such matters, be reasonably expected to result in a Material Adverse
Effect:
(i) notice of any pending or threatened Environmental Claim
against the U.S. Borrower or any of its Subsidiaries or any Real
Estate (as defined below);
(ii) notice of any condition or occurrence on any Real Estate
that (x) results in noncompliance by the U.S. Borrower or any of its
Subsidiaries with any applicable Environmental Law or (y) could
reasonably be anticipated to form the basis of an Environmental
Claim against the U.S. Borrower or any of its Subsidiaries or any
Real Estate;
(iii) notice of any condition or occurrence on any Real Estate
that could reasonably be anticipated to cause such Real Estate to be
subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Estate under any Environmental Law; and
(iv) notice of the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous Material
on any Real Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the U.S. Borrower's response thereto. The term "REAL ESTATE" shall
mean land, buildings and improvements owned or leased by the U.S. Borrower
or any of its Subsidiaries, but excluding all operating fixtures and
equipment, whether or not incorporated into improvements.
(g) DESIGNATION CERTIFICATE. Upon the designation of any Subsidiary
(A) as a Restricted Subsidiary from an Unrestricted Subsidiary or (B) as
an Unrestricted Subsidiary from a Restricted Subsidiary, a certificate of
the chief financial officer of the U.S. Borrower certifying as to
compliance with the provisions of Section 5.02(a), 5.02(b) and 5.02(e) and
demonstrating compliance with the provisions of Section 5.04 and setting
forth the calculations and basis therefor, in each case after giving
effect to such designation in reasonable detail satisfactory to the
Administrative Agent.
(h) AMENDMENT OF DOCUMENTS. Promptly after the same shall become
effective, copies of any amendment or supplement to, or other modification
of, the AKW LP Agreement, the AKW LLC Agreement or any Subordinated Debt
Document.
(i) SECURITIES REPORTS/OTHER INFORMATION. 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 (in each case to the extent not theretofore
delivered to the Lender Parties pursuant to this Agreement), and with
reasonable promptness such other
85
information (financial or otherwise) as the Administrative Agent on its
own behalf or on behalf of any Lender Party may reasonably request in
writing from time to time
SECTION 5.04. FINANCIAL COVENANTS. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the U.S. Borrower will:
(a) LEVERAGE RATIO. Maintain at the end of each Fiscal Quarter a
Leverage Ratio of not more than the ratio set forth below for each
Measurement Period set forth below:
MEASUREMENT
PERIOD ENDING RATIO
------------- -----
June 30, 2001 11.000:1
September 30, 2001 14.000:1
December 31, 2001 14.000:1
March 31, 2002 13.000:1
June 30, 2002 11.250:1
September 30, 2002 10.000:1
December 31, 2002 8.750:1
March 31, 2003 7.750:1
June 30, 2003 6.750:1
September 30, 2003 6.250:1
December 31, 2003 5.500:1
March 31, 2004 5.000:1
June 30, 2004 4.500:1
September 30, 2004 4.250:1
December 31, 2004 4.000:1
and thereafter
(b) INTEREST COVERAGE RATIO. Maintain at the end of each Fiscal
Quarter an Interest Coverage Ratio of not less than the ratio set forth
below for each Measurement Period set forth below:
MEASUREMENT
PERIOD ENDING RATIO
------------- -----
June 30, 2001 1.000:1
September 30, 2001 0.800:1
December 31, 2001 0.800:1
March 31, 2002 0.850:1
June 30, 2002 1.000:1
September 30, 2002 1.100:1
December 31, 2002 1.250:1
March 31, 2003 1.350:1
June 30, 2003 1.500:1
September 30, 2003 1.750:1
December 31, 2003 1.750:1
March 31, 2004 2.000:1
June 30, 2004 2.000:1
September 30, 2004 2.500:1
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MEASUREMENT
PERIOD ENDING RATIO
------------- -----
and thereafter
(c) FIXED CHARGE COVERAGE RATIO. Maintain at the end of each Fiscal
Quarter a Fixed Charge Coverage Ratio of not less than the ratio set forth
below for each Measurement Period set forth below:
MEASUREMENT
PERIOD ENDING RATIO
------------- -----
June 30, 2001 0.750:1
September 30, 2001 0.600:1
December 31, 2001 0.600:1
March 31, 2002 0.650:1
June 30, 2002 0.750:1
September 30, 2002 0.850:1
December 31, 2002 1.050:1
and thereafter
(d) Maintain at the end of each Fiscal Quarter EBIDTA of not less
than the amount set forth below for each Measurement Period set forth
below:
MEASUREMENT
PERIOD ENDING AMOUNT (IN MILLIONS)
------------- --------------------
June 30, 2001 39.0
September 30, 2001 32.0
December 31, 2001 33.0
March 31, 2002 35.5
June 30, 2002 41.0
September 30, 2002 47.0
December 31, 2002 53.5
March 31, 2003 60.5
June 30, 2003 67.0
September 30, 2003 73.0
December 31, 2003 79.0
and thereafter
; PROVIDED, HOWEVER that, if a Default occurs as a result of a breach of this
Section 5.04 with respect to any Measurement Period ending prior to or on
December 31, 2003, then the Investor Group may, within two days of the date of
delivery, pursuant to Section 5.03(b)(ii), of quarterly financial statements
that disclose the occurrence of such Default, make a cash equity contribution to
the U.S. Borrower in such amount as shall be necessary to cure such Default (but
in no event shall such amount exceed $5,000,000 in the aggregate for any such
Measurement Period), it being understood that, (i) for purposes of calculating
the applicable financial covenants, the amount of such cash equity contribution
shall be added, on a dollar-for-dollar basis, to EBIDTA for such Measurement
Period, and (ii) for purposes of this PROVISO only, if such cash equity
contribution is timely made, a Default shall be deemed to have been cured as if
the U.S. Borrower would have been in compliance with Section 5.04 assuming that
such cash equity contribution by the Investor Group to the U.S. Borrower was
made on the last day of the applicable Measurement Period and the U.S. Borrower
used such amount to prepay Advances.
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ARTICLE VI.
GUARANTY
SECTION 6.01. GUARANTY. The U.S. Borrower hereby unconditionally and
irrevocably guarantees (the provisions set forth in this Article VI being the
"GUARANTY") the punctual payment when due, whether at scheduled maturity or at a
date fixed for prepayment or by acceleration, demand or otherwise, of all of the
Obligations of the Canadian Borrower now or hereafter existing under or in
respect of the Loan Documents, whether direct or indirect, absolute or
contingent, and whether for principal, interest, fees, indemnification payments,
costs, expenses or otherwise (such Obligations being the "GUARANTEED
OBLIGATIONS"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any of the other Lender Parties in enforcing any rights
under this Guaranty. Without limiting the generality of the foregoing, the
liability of the U.S. Borrower shall extend to all amounts that constitute part
of the Guaranteed Obligations and would be owed by the Canadian Borrower under
or in respect of the Loan Documents but for the fact that such Guaranteed
Obligations are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Canadian
Borrower.
SECTION 6.02. GUARANTY ABSOLUTE. (a) The U.S. Borrower guarantees
that all of the Guaranteed Obligations will be paid strictly in accordance with
the terms of the Loan Documents, regardless of any Requirements of Law now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any of the other Lender Parties with
respect thereto. The Obligations of the U.S. Borrower under this Guaranty are
independent of the Guaranteed Obligations or any other Obligations of the
Canadian Borrower under or in respect of the Loan Documents, and a separate
action or actions may be brought and prosecuted against the U.S. Borrower to
enforce this Guaranty, irrespective of whether any action is brought against the
Canadian Borrower or whether the Canadian Borrower is joined in any such action
or actions. The liability of the U.S. Borrower under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of, and the U.S. Borrower
hereby irrevocably waives any defenses it may now have or may hereafter acquire
in any way relating to, any and all of the following:
(i) any lack of validity or enforceability of any of the Loan
Documents or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of the Canadian Borrower under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any of the Loan Documents (including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Canadian Borrower or any of its Subsidiaries or
otherwise);
(iii) any taking, exchange, release or nonperfection of any of the
Collateral, or any taking, release or amendment or waiver of, or consent
to departure from, the Subsidiaries Guaranty or any other guarantee, for
all or any of the Guaranteed Obligations;
(iv) any manner of application of Collateral, or proceeds thereof,
to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any Collateral for all or any of the Guaranteed
Obligations or any other Obligations of the Canadian Borrower under or in
respect of the Loan Documents, or any other property and assets of the
Canadian Borrower or any of its Subsidiaries;
88
(v) any change, restructuring or termination of the legal structure
or existence of the Canadian Borrower or any of its Subsidiaries;
(vi) any failure of any of the Lender Parties to disclose to the
Canadian Borrower any information relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects
of the Canadian Borrower now or hereafter known to such Lender Party;
(vii) the failure of any other Person to execute the Subsidiaries
Guaranty or any other guarantee or agreement or the release or reduction
of liability of the Canadian Borrower or any other guarantor or surety
with respect to the Guaranteed Obligations; or
(viii) any other circumstance (including, without limitation, any
statute of limitations or any existence of or reliance on any
representation by the Administrative Agent or any of the other Lender
Parties) that might otherwise constitute a defense available to, or a
discharge of, the U.S. Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any of the other
Lender Parties or by any other Person upon the insolvency, bankruptcy or
reorganization of the Canadian Borrower or otherwise, all as though such payment
had not been made, and the U.S. Borrower hereby unconditionally and irrevocably
agrees that it will indemnify the Administrative Agent and each of the other
Lender Parties, upon demand, for all of the costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or such other Lender Party in connection with any such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
a fraudulent transfer or a similar payment under any bankruptcy, insolvency or
similar Requirements of Law.
(e) The U.S. Borrower hereby further agrees that, as between the
U.S. Borrower, on the one hand, and the Administrative Agent and the Lender
Parties, on the other hand, (i) the Guaranteed Obligations of the Canadian
Borrower may be declared to be forthwith due and payable as provided in Section
7.01 (and shall be deemed to have become automatically due and payable in the
circumstances provided in Section 7.01) for purposes of this Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
declaration in respect of such Guaranteed Obligations (or preventing such
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and (ii) in the event of any declaration of acceleration of
such Guaranteed Obligations (or such Guaranteed Obligations being deemed to have
become automatically due and payable) as provided in Section 7.01, such
Guaranteed Obligations (whether or not due and payable by the Canadian Borrower)
shall forthwith become due and payable by the U.S. Borrower for all purposes of
this Guaranty.
SECTION 6.03. WAIVERS AND ACKNOWLEDGMENTS. (a) The U.S. Borrower
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, protest, dishonor and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty, and any requirement that the
Administrative Agent or any of the other Lender Parties protect, secure, perfect
or insure any Lien or any property or assets subject thereto or exhaust any
right or take any action against the Canadian Borrower or any other Person or
any of the Collateral.
(b) The U.S. Borrower hereby waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by the
Administrative Agent or the other Lender Parties which in any manner impairs,
reduces, releases or otherwise adversely affects the subrogation,
89
reimbursement, exoneration, contribution or indemnification rights of the U.S.
Borrower or any other rights of the U.S. Borrower to proceed against the
Canadian Borrower, any other guarantor or any other Person or any of the
Collateral, and (ii) any defense based on any right of setoff or counterclaim
against or in respect of the Obligations of the U.S. Borrower under this
Guaranty.
(c) The U.S. Borrower hereby unconditionally and irrevocably waives
any duty on the part of the Administrative Agent or any of the other Lender
Parties to disclose to the U.S. Borrower any fact or other matter relating to
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Canadian Borrower or any of its Subsidiaries or
the property and assets thereof now or hereafter known by the Administrative
Agent or such other Lender Party.
(d) The U.S. Borrower hereby unconditionally waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
(e) The U.S. Borrower hereby acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section
6.02 and in this Section 6.03 are knowingly made in contemplation of such
benefits.
SECTION 6.04. SUBROGATION. The U.S. Borrower hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against the Canadian Borrower or any other insider guarantor
that arise from the existence, payment, performance or enforcement of the
Obligations of the U.S. Borrower under this Guaranty or any of the other Loan
Documents, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any of the
other Lender Parties against the Canadian Borrower or any other insider
guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute, common law or any other Requirements of
Law, including, without limitation, the right to take or receive from such other
Loan Party or any other insider guarantor, 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 such time as all of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty
shall have been paid in full in cash. If any amount shall be paid to the U.S.
Borrower in violation of the immediately preceding sentence at any time prior to
the latest of the payment in full in cash of all of the Guaranteed Obligations
and all of the other amounts payable under this Guaranty, such amount shall be
received and held in trust for the benefit of the Administrative Agent and the
other Lender Parties, shall be segregated from the other property and funds of
the U.S. Borrower and shall be delivered forthwith to the Administrative Agent
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and the other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any of the
Guaranteed Obligations or any of the other amounts payable under this Guaranty
thereafter arising. If (i) the U.S. Borrower shall pay to the Administrative
Agent all or any part of the Guaranteed Obligations and (ii) all of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty
shall have been paid in full in cash, the Administrative Agent and the other
Lender Parties will, at the U.S. Borrower's request and expense, execute and
deliver to the U.S. Borrower appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer of subrogation to
the U.S. Borrower of an interest in the Guaranteed Obligations resulting from
the payment made by the U.S. Borrower under this Guaranty.
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SECTION 6.05. CONTINUING GUARANTY; ASSIGNMENTS. This Guaranty is a
continuing guarantee and shall (a) remain in full force and effect until the
payment in full in cash of all of the Guaranteed Obligations and all of the
other amounts payable under this Guaranty, (b) be binding upon the U.S. Borrower
and its successors and assigns and (c) inure to the benefit of, and be
enforceable by, the Administrative Agent and the other Lender Parties and their
respective successors, transferees and assigns. Without limiting the generality
of clause (c) of the immediately preceding sentence, any of the Lender Parties
may assign or otherwise transfer all or any portion of its rights and
obligations under this Agreement (including, without limitation, all or any
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
under this Article VI or otherwise, in each case as provided in Section 9.07.
ARTICLE VII.
EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) either Borrower shall (i) fail to pay any principal of any
Advance owing by it when the same shall become due and payable or (ii)
fail to pay any interest on any Advance owing by it, or any fees payable
pursuant to Section 2.08, or any other amounts owing by it under any Loan
Document, in each case within five days after the due date thereof; or
(b) any representation or warranty made by any Loan Party in any
Loan Document or any certificate delivered or required to be delivered
pursuant thereto shall prove to have been untrue in any material respect
on the date as of which made or deemed made; or
(c) either Borrower shall default in the due performance or
observance by it of any term, covenant or agreement required to be
performed or observed by it contained in Section 5.01(j), 5.02, 5.03(a) or
5.04; or
(d) any Loan Party shall default in the due performance or
observance by it of any other term, covenant or agreement contained in any
Loan Document on its part to be performed or observed if such failure
shall remain unremedied for 30 days after written notice thereof shall
have been given to the U.S. Borrower by the Administrative Agent or any
Lender Party; or
(e) any Loan Party or any of its Subsidiaries 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 amount of at least
$20,000,000 (or its equivalent in another currency) either individually or
in the aggregate (but excluding Debt outstanding hereunder) of such Loan
Party or such Subsidiary (as the case may be), 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 period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt 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 or otherwise to cause, or to permit the holder thereof to
cause, such Debt to mature; or any such Debt shall be declared to be due
and payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or
91
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made other than in
connection with a sale of assets permitted by Section 5.02(d), in each
case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries 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 60 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 of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) one or more judgments or decrees shall be entered against either
Borrower or any of the Restricted Subsidiaries involving a liability of
$20,000,000 or more in the aggregate for all such judgments and decrees
for the Borrowers and their Restricted Subsidiaries (to the extent not
paid or fully covered by insurance provided by a carrier not disputing
coverage) and any such judgments or decrees shall not have been satisfied,
vacated, discharged or stayed or bonded pending appeal within 60 days from
the entry thereof; or
(h) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01, 3.04 or 5.01(k) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it, or
any such Loan Party shall so state in writing; or
(i) any Collateral Document after delivery thereof pursuant to
Section 3.01, 3.04, 3.05 or 5.01(k) shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected first
priority lien on and security interest in the Collateral purported to be
covered thereby; or
(j) any Change of Control shall occur; or
(k) (i) Any Plan shall fail to satisfy the minimum funding standard
required for any plan year or part thereof or a waiver of such standard or
extension of any amortization period is sought or granted under Section
412 of the Internal Revenue Code; any Plan is or shall have been
terminated or is the subject of termination proceedings under ERISA
(including the giving of written notice thereof); an event shall have
occurred or a condition shall exist in either case entitling the PBGC to
terminate any Plan or to appoint a trustee to administer any Plan
(including the giving of written notice thereof); any Plan shall have an
accumulated funding deficiency (whether or not waived); or any Loan Party
or any ERISA Affiliate has incurred or is likely to incur a liability to
or on account of a Plan under Section 409, 502(i), 502(1), 515, 4062,
4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the
Internal Revenue Code (including the giving of written notice thereof);
and (ii) there could result from any event or events set forth in clause
(i) of this Section 7.01(k) the imposition of a lien, the granting of a
security interest, or a liability, or the reasonable likelihood of
incurring a lien, security interest or liability; and (iii) such lien,
security interest or liability will or would be reasonably likely to
result in a liability of any Loan Party or any ERISA Affiliate of
$20,000,000 or more;
92
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Majority Lenders, by notice to
the Appropriate Borrower, declare the obligation of each Appropriate
Lender to make Advances (other than Letter of Credit Advances by the
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and
Swing Line Advances by a Revolving Credit Lender pursuant to Section
2.02(b)) and of the Issuing Bank to issue Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Majority Lenders, (A) by
notice to the Appropriate Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the other
Loan Documents to be forthwith due and payable, whereupon the Notes, 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 each Borrower and (B) by
notice to each party required under the terms of any agreement in support
of which a Standby Letter of Credit is issued, request that all
Obligations under such agreement be declared to be due and payable;
PROVIDED, HOWEVER, that in the event of an actual or deemed entry of an
order for relief with respect to any Loan Party or any of its Restricted
Subsidiaries under the Federal Bankruptcy Code, (x) the obligation of each
Lender to make Advances (other than Letter of Credit Advances by the
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and
Swing Line Advances by a Revolving Credit Lender pursuant to Section
2.02(b)) and of the Issuing Bank to issue Letters of Credit shall
automatically be terminated and (y) the Notes, 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 each Borrower.
ARTICLE VIII.
THE ADMINISTRATIVE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable), the Issuing Bank
(if applicable) and a potential Hedge Bank) hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to the Administrative Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lender Parties and all
holders of Notes; PROVIDED, HOWEVER, that the Administrative Agent shall not be
required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender Party prompt notice of each
notice given to it by either Borrower pursuant to the terms of this Agreement.
SECTION 8.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or
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representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Loan Document on the part of any Loan
Party or to inspect the property (including the books and records) of any Loan
Party; (e) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 8.03. CITICORP AND AFFILIATES. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Citicorp shall
have the same rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though it were not the Administrative Agent;
and the term "Lender Party" or "Lender Parties" shall, unless otherwise
expressly indicated, include Citicorp in its individual capacity. Citicorp and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person who may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Citicorp were not the Administrative Agent and without any
duty to account therefor to the Lender Parties.
SECTION 8.04. LENDER PARTY CREDIT DECISION. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender Party also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. INDEMNIFICATION. (a) Each Lender Party severally
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrowers) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative Agent
under the Loan Documents; PROVIDED, HOWEVER, that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender Party agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the Borrowers under Section 9.04, to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrowers. For purposes of this Section 8.05(a), the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (ii) their
respective Pro Rata Shares of the aggregate Available LC Amount of all Letters
of Credit outstanding at such time, (iii) the aggregate unused portions of their
respective Term A Commitments, Term B Commitments and Term C Commitments at such
time and (iv) their respective Unused Revolving Credit Commitments at such time;
PROVIDED that the aggregate principal amount of Swing Line Advances owing to the
Swing Line Bank and
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of Letter of Credit Advances owing to the Issuing Bank shall be considered to be
owed to the Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments. In the event that any Defaulted Advance shall be
owing by any Defaulting Lender at any time, such Lender Party's Commitment with
respect to the Facility under which such Defaulted Advance was required to have
been made shall be considered to be unused for purposes of this Section 8.05(a)
to the extent of the amount of such Defaulted Advance. The failure of any Lender
Party to reimburse the Administrative Agent promptly upon demand for its ratable
share of any amount required to be paid by the Lender Party to the
Administrative Agent as provided herein shall not relieve any other Lender Party
of its obligation hereunder to reimburse the Administrative Agent for its
ratable share of such amount, but no Lender Party shall be responsible for the
failure of any other Lender Party to reimburse the Administrative Agent for such
other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05(a) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
(b) Each Revolving Credit Lender severally agrees to indemnify the
Issuing Bank (to the extent not promptly reimbursed by the Borrowers) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by the Issuing Bank under the Loan Documents; PROVIDED,
HOWEVER, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each such
Lender Party agrees to reimburse the Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrowers under Section
9.04, to the extent that the Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrowers. For purposes of this Section 8.05(b), the
Lender Parties' respective ratable shares of any amount shall be determined, at
any time, according to the sum of (i) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties,
(ii) their respective Pro Rata Shares of the aggregate Available LC Amount of
all Letters of Credit outstanding at such time, (iii) the aggregate unused
portions of their respective Term A Commitments, Term B Commitments and Term C
Commitments at such time PLUS (iv) their respective Unused Revolving Credit
Commitments at such time; PROVIDED that the aggregate principal amount of Swing
Line Advances owing to the Swing Line Bank and of Letter of Credit Advances
owing to the Issuing Bank shall be considered to be owed to the Revolving Credit
Lenders ratably in accordance with their respective Revolving Credit
Commitments. In the event that any Defaulted Advance shall be owing by any
Defaulting Lender at any time, such Lender Party's Commitment with respect to
the Facility under which such Defaulted Advance was required to have been made
shall be considered to be unused for purposes of this Section 8.05(b) to the
extent of the amount of such Defaulted Advance. The failure of any Lender Party
to reimburse the Issuing Bank promptly upon demand for its ratable share of any
amount required to be paid by the Lender Parties to the Issuing Bank as provided
herein shall not relieve any other Lender Party of its obligation hereunder to
reimburse the Issuing Bank for its ratable share of such amount, but no Lender
Party shall be responsible for the failure of any other Lender Party to
reimburse the Issuing Bank for such other Lender Party's ratable share of such
amount. Without prejudice to the survival of any other agreement of any Lender
Party hereunder, the agreement and obligations of each Lender Party contained in
this Section 8.05(b) shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under the other Loan Documents.
SECTION 8.06. SUCCESSOR ADMINISTRATIVE AGENTS. The Administrative
Agent may resign as to any or all of the Facilities at any time by giving
written notice thereof to the Lender Parties
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and the Borrowers and may be removed as to all of the Facilities at any time
with or without cause by the Majority Lenders. Upon any such resignation or
removal, the Majority Lenders shall, with the consent of the U.S. Borrower (such
consent not to be unreasonably withheld or delayed) have the right to appoint a
successor Administrative Agent as to such of the Facilities as to which the
Administrative Agent has resigned or been removed. If no successor
Administrative Agent shall have been so appointed by the Majority Lenders and
consented to by the U.S. Borrower, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lender
Parties and with the consent of the U.S. Borrower (such consent not to be
unreasonably withheld or delayed) appoint a successor Administrative Agent,
which shall be a commercial bank organized under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent as to all of the Facilities and
upon the execution and filing or recording of such financing statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Majority Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to less than all of the Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Majority Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent as to such Facilities, other than with respect to
funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrowers in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent as to all of the Facilities, the provisions of this Article
VIII shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent as to any Facilities under this
Agreement.
SECTION 8.07. ARRANGER, SYNDICATION AGENT AND DOCUMENTATION AGENT.
The Arranger (both as defined herein and as defined in the Original Credit
Agreement), the Syndication Agent and the Documentation Agent shall have no
duties or obligations under this Agreement or the other Loan Documents in their
respective capacities as such Arranger, Syndication Agent and Documentation
Agent.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by either Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other
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than any Lender that is, at such time, a Defaulting Lender), do any of
the following at any time: (i) waive any of the conditions specified in Section
3.01, 3.04 or 3.05 or, in the case of the Initial Extension of Credit or the
Term C Borrowing, Section 3.02, (ii) change the number of Lenders or the
percentage of (x) the Commitments, (y) the aggregate unpaid principal amount of
the Advances or (z) the aggregate Available LC Amount of outstanding Letters of
Credit that, in each case, shall be required for the Lenders or any of them to
take any action hereunder, (iii) release all or substantially all of the
Collateral in any transaction or series of related transactions, (iv) amend this
Section 9.01, (v) release the U.S. Borrower from its guaranty obligations or
reduce or limit the obligations of the U.S. Borrower under Section 6.01 of the
Guaranty or (vi) otherwise limit either Borrower's liability with respect to the
Obligations owing to the Administrative Agent and the Lender Parties under any
of the Loan Documents, (b) no amendment, waiver or consent shall, unless in
writing and signed by the Majority Lenders and each Appropriate Lender if
affected by such amendment, waiver or consent, (i) increase the Commitments of
such Lender or subject such Lender to any additional obligations, (ii) reduce
the principal of, or interest (other than a waiver of increased interest
following Default pursuant to Section 2.07(b)) on, the Notes held by such Lender
or any fees or other amounts payable hereunder to such Lender or (iii) postpone
any date fixed for any payment of interest on the Notes held by such Lender or
any fees or other amounts payable hereunder to such Lender or the final maturity
date of any Facility and (c) no amendment, waiver or consent shall, unless in
writing and signed by the Majority Lenders (all of which shall be Appropriate
Lenders), waive, reduce, postpone or change the order of application of, or
right to decline to receive, any repayment or prepayment of principal required
to be paid pursuant Sections 2.04 or 2.06; PROVIDED, HOWEVER, that no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Bank or
the Issuing Bank, as the case may be, in addition to the Lenders required above
to take such action, affect the rights or obligations of the Swing Line Bank or
of the Issuing Bank, as the case may be, under this Agreement; and PROVIDED
FURTHER that no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent under this
Agreement.
SECTION 9.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the U.S. Borrower, to its address at ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Office of General Counsel, with a copy to KKR at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇▇▇▇▇; if to
the Canadian Borrower, addressed to it c/o the U.S. Borrower at the U.S.
Borrower's address; if to any Initial Lender or the Initial Issuing Bank, to its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender Party, to its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; and if to
the Administrative Agent, to its address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇; or, as to either Borrower or the
Administrative Agent, to such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
U.S. Borrower and the Administrative Agent pursuant to this Section 9.02. All
such notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Sections 2.02, 2.03, 2.05, 2.06(a) and (c) and 2.09(a) and with
respect to selected Interest Periods in respect of Eurodollar Rate Advances
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note
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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 9.04. COSTS, EXPENSES. (a) Each Borrower agrees to pay on
demand (i) all costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of the Loan Documents (including, without limitation, (A) all due 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
Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the
Administrative Agent and the Lender Parties in connection with the enforcement
of the Loan Documents, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent and each Lender Party with respect
thereto).
(b) Each Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their Affiliates and their
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) (i) the
Facilities, any real property owned by, leased by or leased to any Loan Party,
the actual or proposed use of the proceeds of the Advances or the Letters of
Credit, the Loan Documents or any of the transactions contemplated thereby,
including, without limitation, any acquisition or proposed acquisition
(including, without limitation, the Acquisition, the AKW Acquisition and any of
the other transactions contemplated hereby) by the Investor Group or any of
their Subsidiaries or Affiliates of all or any portion of the stock or
substantially all the assets of such Borrower or any of its Subsidiaries or (ii)
the actual or alleged presence of Hazardous Materials on any property of any
Loan Party or any of its Subsidiaries or any Environmental Action relating in
any way to any Loan Party or any of its Subsidiaries, except to the extent, in
each case, 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 9.04(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 hereby are consummated.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by either Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(c),
acceleration of the maturity of the Notes pursuant to Section 7.01 or for any
other reason, such Borrower shall, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment, including, without limitation, any loss (including
loss of anticipated profits),
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cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender Party to fund or maintain such
Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers contained in Sections 2.10 and 2.12 and this
Section 9.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. RIGHT OF SET-OFF. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 7.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 7.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of either Borrower against any and
all of the Obligations of such Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify such Borrower after any such set-off and
application; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
SECTION 9.06. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by each Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Initial
Lender and the Initial Issuing Bank that such Initial Lender and the Initial
Issuing Bank has executed it and thereafter shall be binding upon and inure to
the benefit of each Borrower, the Administrative Agent and each Lender Party and
their respective successors and assigns, except that neither Borrower shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 9.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may,
with the consent of the Administrative Agent, and, so long as no Event of
Default has occurred and is continuing, with the consent of the Appropriate
Borrower (in each case, such consent not to be unreasonably withheld), assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); PROVIDED, HOWEVER, that no consent by either Borrower or the
Administrative Agent shall be required for an assignment to any Person who is an
Affiliate of such Lender, and PROVIDED FURTHER that (i) each such assignment
shall be of a uniform, and not a varying, percentage of all rights and
obligations under and in respect of one or more Facilities, (ii) except in the
case of an assignment to a Person that, immediately prior to such assignment,
was a Lender or an assignment of all of a Lender's rights and obligations under
this Agreement or all of a Lender's rights and obligations with respect to its
Term B Commitment, the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $5,000,000
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(or integral multiples of $1,000,000 in excess thereof), (iii) each such
assignment shall be to an Eligible Assignee, and (vi) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note or Notes subject to such assignment and, other than in the case of
an assignment to an Affiliate of such Lender, a processing and recordation fee
of $3,000; PROVIDED, HOWEVER, that the foregoing processing and recordation fee
for any assignment made pursuant to this Section 9.07 on or prior to March 31,
1998 which is, in the opinion of the Administrative Agent, associated with the
original syndication of the Facilities, will be waived.
(b) Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as
the case may be, hereunder and (y) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of either Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrowers, shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent and the Lender Parties shall treat each
Person whose name is recorded in the
100
Register as a Lender Party hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers or any Lender Party
at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Appropriate Borrower. In the case of any assignment by a Lender, within five
Business Days after its receipt of such notice, the Appropriate Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note or Notes a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it under a Facility
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder under such Facility, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or A-4 hereto,
as the case may be.
(f) The Issuing Bank may, with the consent of the Administrative
Agent, and, so long as no Event of Default shall have occurred and be
continuing, with the consent of the U.S. Borrower (such consent not to be
unreasonably withheld), assign to an Eligible Assignee all of its rights and
obligations under the undrawn portion of its Letter of Credit Commitment at any
time; PROVIDED, HOWEVER, that (i) each such assignment shall be to an Eligible
Assignee and (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with a processing and recordation fee of
$3,000.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); PROVIDED, HOWEVER, that (i) such Lender
Party's rights and obligations under this Agreement (including, without
limitation, its Commitments) shall remain unchanged, (ii) such Lender Party
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative
Agent and the other Lender Parties shall continue to deal solely and directly
with such Lender Party in connection with such Lender Party's rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest (other than increased interest
following Default pursuant to Section 2.07(b)) on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any Termination Date, or date fixed for payment of
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release the U.S. Borrower
from its Obligations under Article VI hereof, or all or substantially all of the
Collateral, and (vi) neither Borrower shall be subject to any increased
liability to any Lender Party pursuant to this Agreement by virtue of such
participation.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Lender
Party by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any
such disclosure, the assignee
101
or participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such Lender
Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES.
The U.S. Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.10 or 2.12, (b) is
affected in the manner described in Section 2.10(c) and as a result thereof any
of the actions described in such Section is required to be taken or (c) becomes
a Defaulting Lender, with a replacement bank or other financial institution,
PROVIDED that (i) such replacement does not conflict with any Requirement of
Law, (ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) the Appropriate Borrower shall repay (or the
replacement bank or institution shall purchase, at par) all Loans and other
amounts (other than any disputed amounts), pursuant to Section 2.10, 2.11 or
2.12, as the case may be) owing to such replaced Lender prior to the date of
replacement, (iv) the replacement bank or institution, if not already a Lender,
and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (v) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
9.07 (provided that such Borrower shall be obligated to pay the registration and
processing fee referred to therein) and (vi) any such replacement shall not be
deemed to be a waiver of any rights that either Borrower, the Administrative
Agent or any other Lender Party shall have against the replaced Lender.
SECTION 9.09. 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. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.10. NO LIABILITY OF THE ISSUING BANK. The U.S. Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, EXCEPT that the
U.S. Borrower shall have a claim against the Issuing Bank, and the Issuing Bank
shall be liable to the U.S. Borrower, to the extent of any direct, but not
consequential, damages suffered by the U.S. Borrower that the U.S. Borrower
proves were caused by (i) the Issuing Bank's willful misconduct or gross
negligence in determining whether documents presented under any Letter of Credit
comply with the terms of the Letter of Credit or (ii) the Issuing Bank's willful
failure to make lawful payment under a Letter of Credit after the presentation
to it of a draft and certificates strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in limitation of the
foregoing, the Issuing Bank may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
102
SECTION 9.11. CONFIDENTIALITY. The Administrative Agent and each
Lender shall hold all non-public information furnished by or on behalf of either
Borrower in connection with such Lender's evaluation of whether to become a
Lender hereunder or obtained by such Lender or the Administrative Agent pursuant
to the requirements of this Agreement ("CONFIDENTIAL INFORMATION"), in
accordance with its customary procedure for handling confidential information of
this nature and (in the case of a Lender that is a bank) in accordance with safe
and sound banking practices. Neither the Administrative Agent nor any Lender
Party shall disclose any Confidential Information to any Person without the
consent of the Borrowers, other than (a) to the Administrative Agent's or such
Lender Party's Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating such Lender Party or the
Administrative Agent.
SECTION 9.12. RELEASE OF COLLATERAL. (a) Upon the sale, lease,
transfer or other disposition of any item of Collateral of any Loan Party
(including, without limitation, as a result of the sale, in accordance with the
terms of the Loan Documents, of the Loan Party that owns such Collateral) in
accordance with the terms of the Loan Documents, the Administrative Agent will,
at the U.S. Borrower's expense, execute and deliver to such Loan Party such
documents as such Loan Party may reasonably request to evidence the release of
such item of Collateral from the assignment and security interest granted under
the Collateral Documents in accordance with the terms of the Loan Documents.
(b) Upon the sale, lease, transfer or other disposition of all of
the capital stock of any Loan Party that is Subsidiary Guarantor in accordance
with the terms of the Loan Documents, the Administrative Agent will, at the U.S.
Borrower's expense, execute and deliver to such Loan Party such documents as
such Loan Party may reasonably request to evidence its release as a Subsidiary
Guarantor from its Obligations under the Subsidiary Guaranty in accordance with
the terms of the Loan Documents.
SECTION 9.13. JURISDICTION, ETC. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive 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 Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, 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 extent permitted by law, in such federal court. Each Borrower
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Borrower at its address specified in Section 9.02 and agrees that nothing herein
shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to ▇▇▇ in any other jurisdiction. 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. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(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 Loan 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.
103
SECTION 9.14. JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
any of the other Loan Documents in U.S. dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase U.S. dollars with
such other currency at Citibank on the Business Day preceding that on which
final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from
it to any Lender Party or the Administrative Agent hereunder or under any of the
other Loan Documents held by such Lender Party shall, notwithstanding any
judgment in a currency other than U.S. dollars, be discharged only to the extent
that on the Business Day of receipt by such Lender Party or the Administrative
Agent (as the case may be) of any sum adjudged to be so due in such other
currency such Lender Party or the Administrative Agent (as the case may be) may
in accordance with normal banking procedures purchase U.S. dollars with such
other currency; if the U.S. dollars so purchased are less than the sum
originally due by such Borrower to such Lender Party or the Administrative Agent
(as the case may be) in U.S. dollars, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender Party
or the Administrative Agent (as the case may be) against such loss, and if the
U.S. dollars so purchased exceed the sum originally due by such Borrower to any
Lender Party or the Administrative Agent (as the case may be) in U.S. dollars,
such Lender Party or the Administrative Agent (as the case may be) agrees to
remit to such Borrower such excess.
SECTION 9.15. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Each
Borrower hereby confirms and agrees that each of the Term A Notes, the Term B
Notes, Term C Notes and the Revolving Credit Notes, to the extent each is
outstanding as of the date hereof, is, and shall continue to be, in full force
and effect and is hereby ratified and confirmed in all respects, except that,
upon the effectiveness of this Agreement and on and after the date hereof, each
reference in such Notes to the "Credit Agreement", "thereunder", "thereof",
"therein" or words of like import referring to the Original Credit Agreement
shall mean and be a reference to this Agreement.
SECTION 9. 16. GOVERNING LAW. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York, United States.
SECTION 9.17. WAIVER OF JURY TRIAL. Each of the Borrowers, the
Administrative Agent and the Lender Parties 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 any of the Loan
Documents, the Advances or the actions of the Administrative Agent or any Lender
Party in the negotiation, administration, performance or enforcement thereof.
104
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.
ACCURIDE CORPORATION
By
---------------------------------
Name:
Title:
ACCURIDE CANADA INC.
By
---------------------------------
Name:
Title:
105
INITIAL LENDERS
[ ]
-------------------------
By
---------------------------------
Name:
Title:
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Apex I (IDM) CDO I, Ltd. $4,850.0 First Union Institutional Debt First Union Institutional Debt
Mgmt - Tower 49 - Mgmt - Tower 49 -
12 East 49th St., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.,
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇ 44th ▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
ARES III CLO Ltd. $2,000.0 1999 Avenue of the Stars, 1999 Avenue of the Stars,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
ARE IV CLO Ltd. $6,625.0 1999 Avenue of the Stars, 1999 Avenue of the Stars,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
ARES Leveraged $2,404.7 $1,750.0 ▇▇▇▇ ▇▇▇▇▇▇ of the Stars, 1999 Avenue of the Stars,
Investment Fund LP ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
ARES Leveraged $2,404.7 $1,750.0 ▇▇▇▇ ▇▇▇▇▇▇ of the Stars, 1999 Avenue of the Stars,
Investment Fund II LP ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Bank Leumi USA $3,571.4 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ Sadan Attn: ▇▇▇▇ Sadan
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Bank of Nova Scotia $8,541.5 $8,142.9 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇ Attn: J. ▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Bank One N.A. $3,693.6 One First National Plaza, One First National Plaza,
Suite 0634 Suite 0634
Chicago, IL 60603 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇ Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Bankers Trust $4,714.3 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, 300 S. Grand Avenue,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
The Bank of New York $8,000.0 ▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
CIGNA CDO 2000-1, Ltd $2,404.7 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
CIGNA Collateralized $2,404.7 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ 280 ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇
▇▇▇▇▇▇▇▇ 1999-1 CDO ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
61494 Ltd. Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
City National Bank $3,571.4 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 400 North Roxbury Drive
3rd Floor 3rd Floor
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Comerica Bank $3,693.6 $5,142.9 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ stergiatis Attn: ▇▇▇▇▇▇ stergiatis
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Cypress Tree Investment $5,838.7 $1,117.7 ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, 8 North Market Boulevard,
Partners I Ltd. ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Cypress Tree Investment $3,419.3 $588.8 ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, 8 North Market Boulevard,
Partners II Ltd. ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
▇▇▇▇▇▇▇ & Co. $819.5 $1,148.0 ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Oxford Strategic Income $970.0 ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Senior Debt Portfolio $17,854.3 $5,577.5 ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇ 255 State St., 8th Floor
(Formally ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Prime Fund, Inc.) Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
▇▇▇▇▇ ▇▇▇▇▇ Senior $1,940.0 ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
Income Trust ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
▇▇▇▇▇ ▇▇▇▇▇ CDO II Ltd. $1,846.8 ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Fidelity Advisors $4,617.0 ▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ 1 Federal St., 20th Floor
Variable Insurance ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Products Fund Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
First Dominion Funding I $4,850.0 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ Floor 14th Floor
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Firstrust Savings Bank $7,142.9 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Fleet Bank, N.A. $5,142.9 ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mithie Tharson/▇▇▇▇ Attn: Mithie Tharson/▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇/22 Tel: (▇▇▇) ▇▇▇-▇▇▇▇/22
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Fuji Bank Limited $8,714.3 2 World Trade Center, 2 World Trade Center,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇ Attn:▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇/22 Tel: (▇▇▇) ▇▇▇-▇▇▇▇/22
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
▇▇▇▇▇▇▇, Sachs & Co. $3,028.5 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Credit Partners ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Harch CLO I, Ltd. $12,376.6 $4,850.0 ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
▇▇▇▇▇▇ Guaranty Trust $1,936.2 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇. ▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
KZH Cypress Tree I LLC $3,942.5 $4,071.4 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., 100 North ▇▇▇▇▇▇▇▇▇ Blvd.,
(American Express) ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
KZH Waterside LLC $14,550.0 ▇▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ 140 E. 45th St., 11th Floor
(General RE) ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
NatWest Bank PLC $3,857.1 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Pacifica Partners I, $3,924.5 $2,425.0 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 150 South Rodeo Drive
L.P.(Imperial) ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇/37 Tel: (▇▇▇) ▇▇▇-▇▇▇▇/37
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Royal Bank of Canada $8,541.5 $5,285.7 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Toronto, Ontario
Attn:▇▇▇▇▇ ▇▇▇ Attn:▇▇▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Great Point CLO 1999-1 $4,850.0 Two Copley, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ltd ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
▇▇▇▇▇ Point CBO II $1,000.0 Two Copley, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇-▇- Ltd. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Sankatay High Yield $2,000.0 Two Copley, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Asset Partners, L.P. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Sankatay High Yield $4,500.0 Two Copley, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Partners II, L.P. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
SAAR Holdings CDO, $2,425.0 ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇ Attn: ▇▇▇▇▇▇ ▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Perseus CDO I, Limited $4,850.0 ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇ Attn: ▇▇▇▇▇▇ ▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Southern Pacific Thrift $6,428.6 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Sumitomo Bank Limited $3,693.6 $5,142.9 Ernst & Young Tower, Ernst & Young Tower,
Suite 1400 Suite 1400
▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
KZH Soleil LLC $9,234.1 ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ 1 Sun America Center, 34th Fl
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
KZH Soleil 2 LLC $7,275.0 ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ 1 Sun America Center, 34th Fl
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
AIG Global Investment $400.0 $900.0 ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ 1 Sun America Center, 34th Fl
Corp. ▇▇▇-▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Galaxy CLO 1999-1, Ltd. $1,885.2 $2,762.5 ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ 1 Sun America Center, 34th Fl
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Sun Life Insurance $3,075.1 $2,683.0 ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
Company of America ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Transamerica Corp $4,850.0 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇
(▇▇▇▇▇) ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Firstar Corporation $5,000.0 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Name of Initial Lender Term A Term B Term C Revolving Base Rate Eurodollar Lending
Party Commitment Commitment Commitment Commitment Lending Offices Office
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
▇▇▇▇▇ Fargo Bank $3,693.6 $7,857.1 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., 555 ▇▇▇▇▇▇▇▇▇▇ St.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Citibank Canada $10,619.2 $7,142.9 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Toronto, Canada
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
Citibank - Secondary $2,308.5 $1,071.4 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ New York, NY
Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------ ---------- ---------- ----------- ----------- ------------------------------ ------------------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE II
SCHEDULE II
SUBSIDIARY GUARANTORS
- Accuride Texas, Inc.
- Accuride Ventures, Inc.
- Accuride ▇▇▇▇▇▇▇▇▇ Limited Liability Company
- Accuride Columbia General Partership
- Accuride Kentucky Holding Company
- Accuride Henderson Facilities Management Corporation
- Accuride Tennessee Holding Company
- Accuride Columbia Facilities Management Corporation
- AKW General Partner Limited Liability Company
- AKW Limited Partnership
- Accuride Cuyahoga Falls, Inc.
SCHEDULE III
HEDGE AGREEMENTS
FOREIGN EXCHANGE CONTRACTS
--------------------------
USD CAD Contract
Maturity Trade Date Sold/(Bought) Bought/(Sold) Rate
-------- ---------- ------------- ------------- -----
7/9/01 6/19/01 (651,636) (1,000,000) 0.652
7/9/01 4/13/00 5,502,063 8,000,000 0.688
7/9/01 3/22/01 (1,590,634) (2,500,000) 0.636
7/23/01 4/13/00 5,505,850 8,000,000 0.688
7/23/01 12/14/00 (3,310,491) (5,000,000) 0.662
8/7/01 4/17/00 5,479,827 8,000,000 0.685
8/7/01 3/22/01 (1,717,994) (2,700,000) 0.636
8/20/01 4/17/00 5,479,827 8,000,000 0.685
8/20/01 12/14/00 (3,314,990) (5,000,000) 0.663
9/4/01 5/9/00 6,099,627 9,000,000 0.678
9/4/01 12/19/00 (3,293,808) (5,000,000) 0.659
9/17/01 5/9/00 6,097,974 9,000,000 0.678
9/17/01 3/22/01 (3,500,064) (5,500,000) 0.636
10/9/01 5/9/00 6,096,735 9,000,000 0.677
10/9/01 3/22/01 (3,500,286) (5,500,000) 0.636
10/22/01 5/10/00 4,065,068 6,000,000 0.678
10/22/01 5/17/00 2,032,107 3,000,000 0.677
10/22/01 3/22/01 (2,545,825) (4,000,000) 0.636
11/5/01 5/18/00 6,100,868 9,000,000 0.678
11/5/01 3/22/01 (827,446) (1,300,000) 0.636
12/5/01 2/1/01 4,026,846 6,000,000 0.671
1/4/02 3/9/01 647,626 1,000,000 0.648
1/4/02 3/22/01 2,865,694 4,500,000 0.637
1/15/02 3/22/01 2,037,049 3,200,000 0.637
2/5/02 3/22/01 1,719,690 2,700,000 0.637
2/5/02 3/22/01 1,974,522 3,100,000 0.637
2/19/02 3/22/01 1,146,059 1,800,000 0.637
3/5/02 3/22/01 1,592,610 2,500,000 0.637
3/5/02 3/22/01 1,720,074 2,700,000 0.637
3/19/02 3/22/01 2,037,697 3,200,000 0.637
4/2/02 3/22/01 3,504,747 5,500,000 0.637
4/16/02 3/22/01 1,592,255 2,500,000 0.637
5/7/02 3/22/01 3,505,194 5,500,000 0.637
5/21/02 3/22/01 1,784,008 2,800,000 0.637
6/4/02 3/22/01 2,550,045 4,000,000 0.638
6/4/02 3/22/01 828,976 1,300,000 0.638
6/18/02 3/22/01 1,656,895 2,600,000 0.637
7/2/02 3/22/01 2,551,997 4,000,000 0.638
7/16/02 3/22/01 2,871,546 4,500,000 0.638
8/6/02 3/22/01 2,552,974 4,000,000 0.638
8/20/02 3/22/01 2,744,798 4,300,000 0.638
9/4/02 3/22/01 2,551,020 4,000,000 0.638
9/17/02 3/22/01 2,232,356 3,500,000 0.638
10/8/02 3/22/01 2,550,370 4,000,000 0.638
10/22/02 3/22/01 2,869,715 4,500,000 0.638
11/5/02 3/22/01 2,554,278 4,000,000 0.639
11/19/02 3/22/01 2,362,858 3,700,000 0.639
12/3/02 3/22/01 2,554,686 4,000,000 0.639
12/17/02 3/22/01 1,979,945 3,100,000 0.639
----------------------------------
93,773,307 142,000,000
Schedule III
(continued)
Hedge Agreements
ALUMINUM COMMODITY PRICE SWAP CONTRACTS
---------------------------------------
Expiration/ Date Contracted
Settlement Contract Rate
Month Purchased Pounds Per Pound
----- --------- ------ ---------
Jun-01 1/10/00 1,929,043 $0.742
Jul-01 1/27/00 1,929,043 $0.743
Jul-01 5/9/00 1,102,310 $0.680
Jul-01 6/29/01 (771,617) $0.655
Aug-01 1/27/00 1,929,043 $0.741
Aug-01 7/12/01 (661,386) $0.660
Sep-01 1/27/00 1,929,043 $0.738
Sep-01 7/12/01 (661,386) $0.660
Oct-01 2/4/00 1,929,043 $0.731
Oct-01 6/2/00 1,102,310 $0.680
Oct-01 7/12/01 (1,708,581) $0.660
Nov-01 2/4/00 992,079 $0.729
Nov-01 2/4/00 936,964 $0.724
Nov-01 7/12/01 (661,386) $0.660
Dec-01 2/4/00 1,929,043 $0.722
Dec-01 7/12/01 (661,386) $0.660
Jan-02 6/29/01 385,809 $0.678
Feb-02 6/29/01 385,809 $0.680
Mar-02 7/12/01 165,347 $0.681
Apr-02 7/12/01 165,347 $0.681
May-02 7/12/01 165,347 $0.681
Jun-02 7/12/01 165,347 $0.681
Jul-02 7/12/01 165,347 $0.681
Aug-02 7/12/01 165,347 $0.681
Sep-02 7/12/01 165,347 $0.681
Oct-02 7/12/01 165,347 $0.681
Nov-02 7/12/01 165,347 $0.681
Dec-02 7/12/01 165,347 $0.681
-----------
11,353,793
INTEREST RATE SWAP
CONTRACT
Effective Effective
Date Date Date Notional Fixed
From To Executed Amount Rate
---- -- -------- ------ ----
7/23/01 7/23/03 3/21/01 100,000,000 4.777%
SCHEDULE 3.01(d)
ORIGINAL CREDIT AGREEMENT SURVIVING DEBT
(SEE EXISTING SCHEDULE FROM PRIOR AMENDMENT)
SCHEDULE 3.01(l)
RESTRUCTURING MEMORANDUM
(SEE EXISTING SCHEDULE FROM PRIOR AMENDMENT)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(a)
SCHEDULE 4.01(a)
INVESTOR GROUP
Number of shares of common stock authorized 45,000
Number of shares issued and outstanding 24,808
Ownership of outstanding shares:
Hubcap Acquisition LLC 21,600
RSTW Partners III, L.P. 2,400
Management 808
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(b)
SCHEDULE 4.01(b)
SUBSIDIARIES
ACCURIDE CANADA, INC.
Jurisdiction of Incorporation: Ontario, Canada
Number of Shares Authorized: Common shares in unlimited number
Number of Shares Outstanding: 100
Ownership: 100% by the U.S. Borrower
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE TEXAS, INC.
Jurisdiction of Incorporation: Delaware
Number of Shares Authorized: 1,000 common
Number of Shares Outstanding: 1,000
Ownership: 100% by the U.S. Borrower
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE VENTURES, INC.
Jurisdiction of Incorporation: Delaware
Number of Shares Authorized: 1,000 common
Number of Shares Outstanding: 100
Ownership: 100% by the U.S. Borrower
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE DE MEXICO, S.A. DE C.V.
Jurisdiction of Incorporation: Mexico
Number of Shares Outstanding: 196,366 shares of fixed capital stock;
107,343,192 shares of variable capital stock
Ownership: - U.S. Borrower: 196,365 shares of fixed capital stock,
78,307,511 shares of variable capital stock,
- Canadian Borrower: 0 shares of fixed capital stock,
29,035,681 shares of variable capital stock
- Servicios AiSa, ▇.▇.▇▇ C.V.: 1 share of fixed capital
stock
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
SERVICIOS AISA
Jurisdiction of Incorporation: Mexico
Number of Shares Outstanding: 50,000 shares of fixed capital stock
0 shares of variable capital stock
Ownership: 49,999 shares of fixed capital stock owned by Accuride de
Mexico and 1 share of fixed
capital stock by the U.S. Borrower
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
RIMS Y ▇▇▇▇▇▇, ▇.▇. DE C.V.
Jurisdiction of Incorporation: Mexico
Number of Shares Outstanding: 100 shares of fixed capital stock
0 shares of variable capital stock
Ownership: Accuride de Mexico-99 shares of fixed capital stock
Servicios AiSa-1 share of fixed capital stock
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE ▇▇▇▇▇▇▇▇▇ LIMITED LIABILITY COMPANY
Jurisdiction of Incorporation: Delaware
Ownership: 99% membership interest held by Accuride ▇▇▇▇▇▇▇▇▇
Facilities Management Corporation, as senior member; 1%
membership interest held by Accuride Ventures, Inc.
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE COLUMBIA GENERAL PARTERSHIP
Jurisdiction of Incorporation: Delaware
Ownership: 99% interest held by Accuride Columbia Facilities Management
Corporation; 1% partner
interest held by Accuride
Ventures, Inc.
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE KENTUCKY HOLDING COMPANY
Jurisdiction of Incorporation: Delaware
Number of Shares Authorized: 1,000 common
Number of Shares Outstanding: 1,000
Ownership: 100% by the U.S. Borrower
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE ▇▇▇▇▇▇▇▇▇ FACILITIES MANAGEMENT CORPORATION
Jurisdiction of Incorporation: Delaware
Number of Shares Authorized: 1,000 common
Number of Shares Outstanding: 1,000
Ownership: 100% by Accuride Kentucky Holding Company
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE TENNESSEE HOLDING COMPANY
Jurisdiction of Incorporation: Delaware
Number of Shares Authorized: 1,000 common
Number of Shares Outstanding: 1,000
Ownership: 100% by the U.S. Borrower
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE COLUMBIA FACILITIES MANAGEMENT CORPORATION
Jurisdiction of Incorporation: Delaware
Number of Shares Authorized: 1,000 common
Number of Shares Outstanding: 1,000
Ownership: 100% by Accuride Tennessee Holding Company
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
AKW GENERAL PARTNER LIMITED LIABILITY COMPANY
Jurisdiction of Incorporation: Delaware
Ownership: 50% by Accuride Corporation
50% by Accuride Ventures, Inc.
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
AKW LIMITED PARTNERSHIP
Jurisdiction of Incorporation: Delaware
Ownership: 49% limited partnership interest held by Accuride
Corporation; 49% limited
partnership interest held
by Accuride Ventures, Inc.;
2% general partnership
interest held by AKW
General Partner L.L.C.
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
ACCURIDE CUYAHOGA FALLS, INC.
Jurisdiction of Incorporation: Delaware
Number of Shares Authorized: 1,000 common
Number of Shares Outstanding: 1,000 common
Ownership: 100% by the U.S. Borrower
Outstanding Options, Warrants, Rights None
of Conversion or Purchase:
SCHEDULE 4.01(d)
GOVERNMENT AND THIRD PARTY APPROVALS
(SEE EXISTING SCHEDULE FROM PRIOR AMENDMENT)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(I)
SCHEDULE 4.01(l)
ENVIRONMENTAL MATTERS
None
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(p)
SCHEDULE 4.01(p)
EXISTING DEBT
(As of June 30, 2001)
- $373,650,000 Amended and Restated Credit Agreement dated as of April 16,
1999 among
Accuride Corporation and Accuride Canada Inc., as borrowers,
certain Lender Parties party thereto, Citicorp USA, Inc., as Administrative
Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as Arranger, Bankers Trust Company, as
Syndication Agent, and ▇▇▇▇▇ Fargo Bank N.A. as Documentation Agent for
said Lender. As of the date hereof, the following is outstanding:
- $55,404,444.44, Term A Facility
- $69,255,555.56, Term B Facility
- $97,000,000.00, Term C Facility
- $540,000.00 Letter of Credit obligation supporting Worker's
Compensation liability
- Amounts outstanding under the Revolver Facility ($52,500,000 as of
6/30/01).
- Maturity Date and Amortization as set forth in the Second
Amended and Restated Credit Agreement.
- $189,900,000, 9.25% Senior Subordinated Notes due February 1, 2008.
- $140,000 utility Surety Bond regarding the Columbia, Tennessee, facility.
- $1,289,100 debt from Hedge Agreements. See schedule III.
- $2,800,000 representing an
Accuride Corporation guarantee of the AOT, Inc.
Credit Facility with Royal Bank of Canada, (the "Bank"). The guarantee is
made to The Goodyear Tire & Rubber Company ("Goodyear"), the Company's
joint venture partner in AOT, Inc. Goodyear has directly guaranteed the
Credit Facility with the Bank and the Company has agreed separately with
Goodyear to be responsible for 50% of such guarantee. The Credit Facility
is in the total amount of $7,000,000, of which $5,600,000 is currently
outstanding.
-
Accuride Corporation guarantee of $32,500,000 Credit Agreement dated as
of July 9, 1998, as amended, ($25,000,000 Term Commitment and $7,500,000
Working Capital Commitment) between Accuride de Mexico, S.A. de C.V. as
Borrower, and Citibank Mexico, S.A., Grupo Financiero Citibank as Lender.
As of the date hereof, $15,625,000, of the Term Commitment is outstanding.
- Maturity Date: March 25, 2003.
- Amortization: $3,125,000 on the 25th of each March, June, September and
December commencing June 25, 2001 through the Maturity Date.
- $25,000,000 Industrial Revenue Bond dated November 16, 1999 by and between
(a) The Industrial Development Board of Maury County, Tennessee as Issuer,
(b) Accuride Kentucky Holding Company (and its assigns) as Purchaser and
(c) Accuride Corporation, Accuride Columbia General Partnership and
Accuride ▇▇▇▇▇▇▇▇▇ Limited Liability Company (and their assigns) as Users.
As of the date hereof, $19,642,857 is outstanding. See attached
Sub-Schedule A for amortization and maturity date information.
SUB-SCHEDULE A
Accuride Corporation Tennessee IRB
Interest & Principal Payment Schedule
Principal: $25,000,000.00
Fixed Interest Rate: 9.25%
Frequency: Quarterly
Closing Date: 11/16/99
BEGINNING PRINCIPAL INTEREST TOTAL ENDING
DATE PRINCIPAL PAYMENT PAYMENT PAYMENT PRINCIPAL
---- --------- -------- ---------
2/1/00 $25,000,000.00 $892,857.14 $480,191.26 $1,373,048.40 $24,107,142.86
5/1/00 $24,107,142.86 $892,857.14 $548,338.70 $1,441,195.84 $23,214,285.72
8/1/00 $23,214,285.72 $892,857.14 $539,763.86 $1,432,621.00 $22,321,428.58
11/1/00 $22,321,428.58 $892,857.14 $519,003.71 $1,411,860.85 $21,428,571.44
2/1/01 $21,428,571.44 $892,857.14 $499,608.61 $1,392,465.75 $20,535,714.30
5/1/01 $20,535,714.30 $892,857.14 $463,178.82 $1,356,035.96 $19,642,857.16
8/1/01 $19,642,857.16 $892,857.14 $457,974.56 $1,350,831.70 $18,750,000.02
11/1/01 $18,750,000.02 $892,857.14 $437,157.53 $1,330,014.67 $17,857,142.88
2/1/02 $17,857,142.88 $892,857.14 $416,340.51 $1,309,197.65 $16,964,285.74
5/1/02 $16,964,285.74 $892,857.14 $382,625.98 $1,275,483.12 $16,071,428.60
8/1/02 $16,071,428.60 $892,857.14 $374,706.46 $1,267,563.60 $15,178,571.46
11/1/02 $15,178,571.46 $892,857.14 $353,889.43 $1,246,746.57 $14,285,714.32
2/1/03 $14,285,714.32 $892,857.14 $333,072.41 $1,225,929.55 $13,392,857.18
5/1/03 $13,392,857.18 $892,857.14 $302,073.14 $1,194,930.28 $12,500,000.04
8/1/03 $12,500,000.04 $892,857.14 $291,438.36 $1,184,295.50 $11,607,142.90
11/1/03 $11,607,142.90 $892,857.14 $270,621.33 $1,163,478.47 $10,714,285.76
2/1/04 $10,714,285.76 $892,857.14 $249,121.78 $1,141,978.92 $9,821,428.62
5/1/04 $9,821,428.62 $892,857.14 $223,397.25 $1,116,254.39 $8,928,571.48
8/1/04 $8,928,57.48 $892,857.14 $207,601.48 $1,100,458.62 $8,035,714.34
11/1/04 $8,035,714.34 $892,857.14 $186,841.34 $1,079,698.48 $7,142,857.20
2/1/05 $7,142,857.20 $892,857.14 $166,536.20 $1,059,393.34 $6,250,000.06
5/1/05 $6,250,000.06 $892,857.14 $140,967.47 $1,033,824.61 $5,357,142.92
8/1/05 $5,357,142.92 $892,857.14 $124,902.15 $1,017,759.29 $4,464,285.78
11/1/05 $4,464,285.78 $892,857.14 $104,085.13 $996,942.27 $3,571,428.64
2/1/06 $3,571,428.64 $892,857.14 $83,268.10 $976,125.24 $2,678,571.50
5/1/06 $2,678,571.50 $892,857.14 $60,414.63 $953,271.77 $1,785,714.36
8/1/06 $1,785,714.36 $892,857.14 $41,634.05 $934,491.19 $892,857.22
11/1/06 $892,857.22 $892,857.22 $20,817.03 $913,674.25 --
----------- ---------- -----------
Total: $25,000,000.00 $8,279,571.28 $33,279,571.28
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(q)
SCHEDULE 4.01(q)
OWNED REAL PROPERTY
1. Henderson Facility
Facility owned by: Accuride ▇▇▇▇▇▇▇▇▇ Limited Liability Company
Location: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇
County)
2. London Facility
Facility owned by: Accuride Canada, Inc.
Location: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(r)
SCHEDULE 4.01(r)
LEASED REAL PROPERTY
1. Erie Facility
Facility leased by: AKW, L.P.
Landlord: ▇▇▇▇▇▇ Aluminum and Chemical Corp
Location: ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇,
▇▇ ▇▇▇▇▇ (Erie County)
Annual Rental Cost: $1.00 per year base rent
Expiration Date: April 30, 2007 (initial term)
2. Columbia Facility
Facility leased collectively by: Accuride Corporation, Accuride Columbia
General Partnership, and Accuride
▇▇▇▇▇▇▇▇▇ Limited Liability Company
Landlord: Maury County, Tennessee (as Issuer of IRB)
Location: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇ (Maury County)
Annual Rental Cost: Varies with Bond amortization
- $5,429,348.00 in 2001
Expiration Date: November 1, 2006
3. Cuyahoga Falls Facility
Facility leased by: AKW, L.P.
Landlord: The ▇▇▇▇ Company
Location: ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ (Summit County)
Annual Rental Cost: $386,934.60 (for July 1, 2001 through
June 30, 2002)
Expiration Date: June 30, 2003
4. ▇▇▇▇▇▇ Warehouse
Facility leased by: Accuride Corporation
Landlord: ▇▇▇▇▇▇ Land & Co.
Location: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
(▇▇▇▇▇ County)
Annual Rental Cost: $274,588.65 (2001)
Expiration Date: October 18, 2009
Schedule 4.01(r)
Page Two
5. Northville Sales Office
Facility leased by: Accuride Corporation
Landlord: Northwood Corporate Park, L.P.
Location: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ (▇▇▇▇▇ County)
Annual Rental Cost: $74,760.00
Expiration Date: November 30, 2002
6. Corporate Headquarters
Facility leased by: Accuride Corporation
Landlord: ▇▇▇▇▇▇▇▇, L.L.C.
Location: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ (Vanderburgh County)
Annual Rental Cost: $450,499.20
Expiration Date: October 31, 2009
7. Alabama Sales Office
Facility leased by: Accuride Corporation
Landlord: Dauphin 65 Partners, Inc.
Location: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇,
Room 10, Mobile, AL
Annual Rental Cost: $6,900.00
Expiration Date: June 30, 2003
8. Ft. ▇▇▇▇▇ Sales Office
Facility leased by: Accuride Corporation
Landlord: Professional Park West Properties
Location: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇
Annual Rental Cost: $4,200.00
Expiration Date: December 31, 2001
9. Vancouver Sales Office
Facility leased by: Accuride Corporation
Landlord: Park Plaza, Inc.
Location: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇ ▇▇▇▇ Plaza Drive, Suite 274,
Vancouver, Washington
Annual Rental Cost: $9,000.00
Expiration Date: January 31, 2002
Schedule 4.01(r)
Page Three
10. Pennsylvania Sales Office
Facility leased by: Accuride Corporation
Landlord: ▇▇▇▇▇ ▇▇▇▇▇▇
Location: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇,
▇▇▇▇▇▇▇▇▇, ▇▇
Annual Rental Cost: $2,700.00 per year
Expiration Date: August 31, 2002
INTERCOMPANY LEASES
1. Henderson, Kentucky Facility and Site Lease
Facility leased by: Accuride Corporation
Landlord: Accuride ▇▇▇▇▇▇▇▇▇ Limited Liability Company
Location: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
Annual Rental Cost: $1,691,865.00 per year
Expiration Date: January 16, 2008
2. Columbia, Tennessee Facility Lease
Facility leased by: Accuride Corporation
Landlord: Accuride Columbia General Partnership
Location: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
Annual Rental Cost: $436,612.00 per year
Expiration Date: January 16, 2008
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(s)
SCHEDULE 4.01(s)
LEASES TO OTHERS
1. Intercompany leases - see Schedule 4.01(r)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(t)
SECTION 4.01(t)
INTELLECTUAL PROPERTY
PART A - UNITED STATES & CANADA
APPL.OR
TRADEMARK COUNTRY STATUS ▇▇▇.▇▇.
--------- ------- ------ -------
Accu-Forge US Reg. 981871
Accu-Lite US Reg. 818587
Accu-Ride US Reg. 698057
Accu-Ride US Reg. 912540
Aluminator US Reg. 2417777
Commander US Reg. 702487
Duplex US Reg. 759558
Octo Nest US Reg. 1199529
Radial Commander US Reg. 988254
Wheel-Guard US Reg. 1300461
Accu-Lite Canada Reg. 163800
Accu-Ride Canada Reg. 163813
Commander Canada Reg. 164489
APPL.OR
PATENTS/APPLICATIONS COUNTRY STATUS ▇▇▇.▇▇. DATE
------- ------ -------- -----
Full-Faced Steel Vehicle Wheel and Method of US Patented 6,193,321 Feb. 27, 2001
Manufacture
Full-Faced Steel Vehicle Wheel and Method of Canada Pending PCT PCT/US99/
Manufacture Appl. 26522
Method of Manufacturing a Full-Faced Steel US Patented 6,073,347 June 13, 2000
Vehicle Wheel
Apparatus for Centering a Wheel on a Hub US Patented 5,692,811 Dec. 2, 1997
Apparatus for Centering a Wheel on a Hub Canada Patented 2,114,261 Dec. 22, 1998
Wheel Balance Weight US Patented 5,228,754 July 20, 1993
Vehicle Wheel US Patented 5,772,228 June 30, 1998
Method of Making a Vehicle Wheel US Patented 6,029,351 Feb. 29, 2000
Vehicle Wheel Canada Pending Appl. 2248548
Wheel Hand Hole Design US Pending Appl. 29/064,259
Wheel Hand Hole Design Canada Patented 74021 Mar. 17, 1994
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(t)
SECTION 4.01(t)
INTELLECTUAL PROPERTY
PART B - INTERNATIONAL
APPL.OR
TRADEMARK COUNTRY STATUS ▇▇▇.▇▇.
--------- ------- ------ --------
Accuride Mexico Reg. 509785
Accuride de Mexico Mexico Reg. 571607
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇
Commander Mexico Reg. 573916
Commander Mexico Reg. 572265
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Reg. 572264
Innovacion en ▇▇▇▇▇▇ Mexico Reg. 19403
Accuride Benelux Reg. 596348
Accu-Ride Benelux Reg. 69432
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Reg. 1564529
ESW Japan Reg. 2575302
Accuride Argentina Reg. 1661676
Accuride Australia Reg. A533675
Accuride ▇▇▇▇▇▇▇ ▇▇▇▇.▇▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Reg. 583715
Accuride China Reg. 1108097
Accuride Colombia Reg. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Reg. ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Reg. 96/639717
Accuride Germany Reg. 39635876
Accuride Italy Reg. MI96C007568
Accuride Peru Reg. 87691
Accuride Saudi Reg. 7/418
Arabia
Accuride South Reg. 95/13996
Africa
Accuride South Reg. 221081
Korea
Accuride Sweden Reg. 232614
Accuride Thailand Appl.Pend. 429135
Accuride Turkey Reg. 171965
Accuride Uruguay Reg. 289514
APPL.OR
TRADEMARK COUNTRY STATUS ▇▇▇.▇▇.
--------- ------- ------ --------
Accuride Venezuela Reg. 2910-96
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 4.01(t)
SECTION 4.01(t)
INTELLECTUAL PROPERTY
PART B - INTERNATIONAL
APPL.OR
PATENT/APPLICATIONS COUNTRY STATUS ▇▇▇.▇▇. DATE
------------------- ------- ------ ------- -----
Full-faced Steel Vehicle Europe Pending PCT PCT/US99/26522
Wheel and Method of Mexico Appl.
Manufacture
Apparatus for Centering a Mexico Patented 189,091 June 11, 1998
Wheel on a Hub
Vehicle Wheel Mexico Pending Appl. 987315
Vehicle Wheel Japan Pending Appl. 501907/98
Vehicle Wheel European Patent Pending Appl. 97931561.1
Office (UK,
Germany, Italy,
France, Sweden)
Vehicle Wheel Brazil Pending Appl. 9709665-2
Wheel Hand Hole Design Mexico Patented 5961 Apr. 26, 1993
Note: All Patents and Trademarks are owned by Accuride Corporation
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 5.01(n)
SCHEDULE 5.01(n)
PROPERTIES
Henderson Facility
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
London Facility
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Columbia Facility*
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
AKW Facility*
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
Cuyahoga Falls Facility*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇*
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
* Leased facilities
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 5.02(a)
SCHEDULE 5.02(a)
EXISTING LIENS
1. Various UCC financing statements naming Citicorp USA, Inc. as secured
party.
2. UCC financing statements naming ACCURIDE CORPORATION as debtor, as
follows:
(a) UCC-1 filed with the Tennessee Secretary of State, file number
982-069597, filed 8/4/98, naming AEL Leasing Go., Inc., dba American
Equipment Leasing, as secured party.
(b) UCC-1 filed with the Tennessee Secretary of State, file number
992-008983, filed 2/17/99, naming Black Equipment Co., Inc. as secured
party, assigned to Associates Commercial Corporation.
(c) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0136602, filed 7/5/94, naming El Camino Resources, Ltd. as secured party.
(d) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0154137, filed 7/12/96, naming Black Equipment Co, Inc. as secured party.
(e) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0162886, filed 7/11/97, naming Black Equipment Co, Inc. as secured party.
(f) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0180860, filed 8/3/99, naming Black Equipment Co, Inc. as secured party.
(g) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0188406, filed 8/7/00, naming Black Equipment Co, Inc. as secured party.
(h) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0194236, filed 05/03/01, naming Black Equipment Co, Inc. as secured party.
(i) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0164932, filed 10 Equipment Co., Inc. as secured party, assigned to
Associates Commercial Corporation. /01/97, naming Deere Credit, Inc. as
secured party.
(j) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0166236, filed 12/01/97, naming AT&T Credit Corporation as secured party.
(k) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0172730, filed 09/03/98, naming Black Equipment Co., Inc. as secured
party, assigned to Associates Commercial Corporation.
(l) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0172731, filed 09/03/98, naming Black
(m) UCC-1 filed with ▇▇▇▇▇▇▇▇▇ County, Kentucky, file number
0177674, filed 04/26/99, naming Black Equipment Co., Inc., as secured
party, assigned to Associates Commercial Corporation.
3. UCC financing statement naming AKW LP as debtor, as follows:
a) UCC-1 filed with the Erie Prothonotary, file number 21460-97,
filed 8/15/97, naming Business Credit Leasing as secured party.
(b) UCC-1 filed with the Erie Prothonotary, file number 21904-97,
filed 10/10/97, naming Data General Corporation as secured party, assigned
to Banc One Leasing Corporation.
(c) UCC-1 filed with the Erie Prothonotary, file number 22190-97,
filed 11/17/97, naming Hyster Credit Company as secured party.
(d) UCC-1 filed with the Erie Prothonotary, file number 21608-98,
filed 8/13/98, naming Hyster Credit Company as secured party.
(e) UCC-1 filed with the Erie Prothonotary, file number 22383-98,
filed 12/28/98, naming Data General Corporation as secured party.
(f) UCC-1 filed with the Erie Prothonotary, file number 21298-98,
filed 7/1/98, naming Manifest Group as secured party.
(g) UCC-1 filed with the Pennsylvania Secretary of the Commonwealth,
file number 27010189, filed 8/15/97, naming Business Credit Leasing as
secured party.
(h) UCC-1 filed with the Pennsylvania Secretary of the Commonwealth,
file number 28071706, filed 10/7/97, naming Data General Corporation as
secured party, assigned to Banc One Leasing Corporation.
(i) UCC-1 filed with the Pennsylvania Secretary of the Commonwealth,
file number 28161112, filed 10/29/97, naming Hyster Credit Corporation as
secured party.
(j) UCC-1 filed with the Pennsylvania Secretary of the Commonwealth,
file number 28161113, filed 10/29/97, naming Hyster Credit Corporation as
secured party.
(k) UCC-1 filed with the Pennsylvania Secretary of the Commonwealth,
file number 28211105, filed 11/12/97, naming Green Tree Vendor Services
Group as secured party.
(l) UCC-1 filed with the Pennsylvania Secretary of the Commonwealth,
file number 29070637, filed 6/22/98, naming The Manifest Group as secured
party.
(m) UCC-1 filed with the Pennsylvania Secretary of the Commonwealth,
file number 29281608, filed 8/17/98, naming ▇▇▇▇▇▇ Material Handling, Inc.
as secured party, assigned to Hyster Credit Corporation.
(n) UCC-1 filed with the Pennsylvania Secretary of the Commonwealth,
file number 29740256 filed 12/28/98, naming Data General Corporation as
secured party, assigned to De ▇▇▇▇ ▇▇▇▇▇▇ Financial Services, Inc.
(o) UCC-1 filed with the Ohio Secretary of State, file number
APO110215 filed 12/29/98, naming Data General Corporation as secured
party, assigned to De ▇▇▇▇ ▇▇▇▇▇▇ Financial Services, Inc.
(p) UCC-1 filed with the Ohio Secretary of State, file number
▇▇▇▇▇▇▇▇▇ filed 2/22/99, naming Hawkstone Associates, Inc. as secured
party.
(q) UCC-1 filed with the Summit County Recorder, Ohio, file number
21026265 filed 12/29/98, Data General Corporation as secured party,
assigned to De ▇▇▇▇ ▇▇▇▇▇▇ Financial Services, Inc.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 5.02(3)
SCHEDULE 5.02(e)
EXISTING INVESTMENTS
(SEE EXISTING SCHEDULE FROM PRIOR AMENDMENT)
EXHIBIT K
TO THE CREDIT AGREEMENT
FORM OF MORTGAGE
MORTGAGE, [LEASEHOLD MORTGAGE], OPEN-END MORTGAGE,
[OPEN-END LEASEHOLD MORTGAGE], ADVANCE MONEY MORTGAGE,
[ADVANCE MONEY LEASEHOLD MORTGAGE], CREDIT LINE MORTGAGE,
[LEASEHOLD CREDIT LINE MORTGAGE], ASSIGNMENT,
ASSIGNMENT OF RENTS, FIXTURE FILING AND FINANCING STATEMENT
DATED _______________ ,2001
-------------------------
MORTGAGOR
TO
______________________., AS ADMINISTRATIVE AGENT FOR THE LENDERS
LISTED ON EXHIBIT C HERETO AND AS PROVIDED HEREIN,
MORTGAGEE
TABLE OF CONTENTS
PAGE
ARTICLE I
Certain Definitions
SECTION 1.01. Certain Definitions.............................................4
ARTICLE II
Obligations Secured
SECTION 2.01. Obligations Secured.............................................1
SECTION 2.02. [Fraudulent Conveyance..........................................1
ARTICLE III
Representations, Warranties and Covenants of Mortgagor
SECTION 3.01. Payment of Secured Obligations..................................1
SECTION 3.02. Legal Status, Authority and Other Matters.......................1
SECTION 3.03. Warranty of Title...............................................1
SECTION 3.04. Operation and Maintenance.......................................2
SECTION 3.05. Insurance.......................................................3
SECTION 3.06. Liens and Liabilities...........................................4
SECTION 3.07. Taxes and Other Charges.........................................4
SECTION 3.08. Damage and Destruction..........................................4
SECTION 3.09. Condemnation....................................................6
SECTION 3.10. Covenants Concerning the Leases.................................7
SECTION 3.11. Contest.........................................................8
SECTION 3.12. Notice Limiting Amount..........................................9
SECTION 3.13. Compliance with Environmental Laws..............................9
SECTION 3.14. Permits.........................................................9
SECTION 3.15. Compliance With Applicable Laws.................................9
SECTION 3.16. Further Assurances..............................................9
SECTION 3.17. Subordinate Leases.............................................10
ARTICLE IV
Additional Advances; Expenses; Indemnity
SECTION 4.01. Additional Advances and Disbursements..........................12
SECTION 4.02. Other Expenses.................................................12
SECTION 4.03. Interest After Default.........................................12
SECTION 4.04. Indemnity......................................................12
ARTICLE V
Sale or Transfer of the Premises
SECTION 5.01. Continuous Ownership...........................................13
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default..............................................13
SECTION 6.02. Remedies.......................................................13
SECTION 6.03. Rights Pertaining to Sales.....................................15
SECTION 6.04. Expenses.......................................................17
SECTION 6.05. Application of Proceeds........................................17
SECTION 6.06. Additional Provisions as to Remedies...........................18
SECTION 6.07. Waiver of Rights and Defenses..................................18
ARTICLE VII
Release of Lien
SECTION 7.01. Release of Lien................................................20
ARTICLE VIII
Additional Provisions
SECTION 8.01. Provisions as to Payments, Advances............................20
SECTION 8.02. Separability...................................................20
SECTION 8.03. Notices........................................................20
SECTION 8.04.................................................................21
SECTION 8.05. Continuation of Lease..........................................21
SECTION 8.06. Applicable Law.................................................21
SECTION 8.07. Sole Discretion of Mortgagee..................................21
SECTION 8.08. Provisions as to Covenants and Agreements......................21
SECTION 8.09. Matters to be in Writing.......................................21
SECTION 8.10. Submission to Jurisdiction.....................................22
SECTION 8.11. Construction of Provisions.....................................22
SECTION 8.12. Successors and Assigns.........................................23
SECTION 8.13. Counterparts...................................................23
SECTION 8.14. Agency.........................................................23
SECTION 8.15. The Security Agreement and other Loan Documents................23
SECTION 8.16. No Merger......................................................23
SECTION 8.17. WAIVER OF JURY TRIAL...........................................23
SECTION 8.18. WAIVER OF MORTGAGOR'S RIGHTS...................................24
SECTION 8.19. Cross-Collateralization........................................24
ARTICLE IX
Fixture Filing
SECTION 9.01. Fixture Filing.................................................25
Exhibit A-1 Description of Land
[Exhibit A-2 Description of Leased Land]
Exhibit B Permitted Encumbrances
Exhibit C List of Lenders as of the Date of this Mortgage
THIS MORTGAGE, [LEASEHOLD MORTGAGE], OPEN-END MORTGAGE, [OPEN-END
LEASEHOLD MORTGAGE], ADVANCE MONEY MORTGAGE, [ADVANCE MONEY LEASEHOLD MORTGAGE],
CREDIT LINE MORTGAGE, [LEASEHOLD CREDIT LINE MORTGAGE], ASSIGNMENT, ASSIGNMENT
OF RENTS SECURITY AGREEMENT FIXTURE FILING AND FINANCING STATEMENT (as the same
may from time to time be extended, spread, split, consolidated, modified,
restated and renewed, this "MORTGAGE") made as of ________________, 2001
by___________________having its principal office at
___________________________________________ ("MORTGAGOR"), to____________,
_____________________, as Administrative Agent as defined in the Credit
Agreement (in such capacity together with its successors in such capacity as
appointed in accordance with the Credit Agreement (as hereinafter defined),
("ADMINISTRATIVE AGENT") for the Lenders (as hereinafter defined) ("MORTGAGEE").
W I T N E S S E T H:
-------------------
WHEREAS, [Mortgagor] [Accuride Corporation, a Delaware corporation
(the "U.S. BORROWER")] and Accuride Canada Inc., a corporation organized and
existing under the law of the Province of Ontario (the "CANADIAN BORROWER", and
together with the U.S. Borrower, the "BORROWERS") have entered into that certain
Second Amended and Restated Credit Agreement (said second amended and restated
credit agreement, as it may be amended, modified or supplemented from time to
time, being the "CREDIT AGREEMENT"), dated as of July 27 , 2001, with the
lenders listed on Exhibit C attached hereto and made a part hereof (said lenders
and any lenders that may hereafter become parties to the Credit Agreement, being
collectively the "LENDERS" and individually a "LENDER") and Administrative
Agent; and
WHEREAS, pursuant to the Credit Agreement and subject to the terms
and conditions therein set forth, the Lenders have agreed to make Advances and
to issue certain Letters of Credit (as each such term is defined in the Credit
Agreement) from time to time from the date hereof until ____________200_, in the
aggregate amount not to exceed at any time_______________, excluding advances
made to protect the lien of this Mortgage; and
WHEREAS, to evidence and secure such indebtedness, the Loan Parties
have executed and delivered certain of the Loan Documents (as defined in the
Credit Agreement); and
[WHEREAS, Mortgagor is a Subsidiary of the U.S. Borrower and a
Guarantor of the Borrowers' obligations under the Credit Agreement pursuant to
that certain Subsidiary Guaranty Agreement, dated as of __________, 2001, by
Mortgagor and certain other parties (as amended, restated or otherwise modified
from time to time (the "SUBSIDIARY GUARANTY")]; and
WHEREAS, it has been agreed that as a condition subsequent to the
making of the Advances and issuing certain Letters of Credit (as each such term
is defined in the Credit Agreement), Mortgagor will further secure such
indebtedness by the execution and delivery of this Mortgage; and
WHEREAS, it has been agreed that the payment and performance of the
Secured Obligations (as hereinafter defined) shall be secured by a mortgage,
[leasehold mortgage], open-end mortgage, [open-end leasehold mortgage], advance
money mortgage, [advance money leasehold mortgage], credit line mortgage,
[leasehold credit line mortgage], assignment, assignment of rents and financing
statement, as applicable, of certain property as hereinafter identified.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, to secure the punctual payment by the Loan Parties when due,
whether at stated maturity, by acceleration or otherwise, of the Secured
Obligations (as defined below) and the performance and observance of all other
covenants,
obligations and liabilities of Mortgagor under this Mortgage, as the same may be
extended, modified or renewed or repledged, Mortgagor does hereby grant,
bargain, sell, mortgage, warrant, convey, alien, remise, release, assign,
transfer, set over, deliver, confirm and convey unto Mortgagee, upon the terms
and conditions of this Mortgage, with power of sale and right of entry as
provided hereinbelow, each and all of the real properties described in the
Granting Clauses herein (which, together with all other property located therein
or described in the Granting Clauses herein, is hereinafter collectively called
the "MORTGAGED PROPERTY").
GRANTING CLAUSES
All the estate, right, title and interest of Mortgagor in, to and
under, or derived from, the plots, pieces and parcels of land more particularly
described in Exhibit A-1 hereto (the "LAND");
[TOGETHER with all those certain leases and the leasehold estates
created thereby more particularly described in Exhibit A-2 hereto, as the same
may be amended, renewed, modified, supplemented or extended from time to time
(collectively referred to as the "LEASES") of and in those certain plots, pieces
and parcels of land more particularly described in the aforesaid Exhibit A-2
(the "LEASED LAND"), and any and all reversions or remainders in and to
Mortgagor's interest in the Leased Land, all modifications, extensions,
replacements and renewals of the Leases and all credits, deposits, options
(including any options to purchase or renew set forth in the Leases), privileges
and rights of Mortgagor under the Leases and all guarantees of the Leases (all
of the foregoing hereinafter collectively referred to as the "LEASEHOLD
ESTATE")];
TOGETHER with the tenements, hereditaments, appurtenances and all
the estates and rights of Mortgagor in and to the Land [and the Leased Land];
TOGETHER with all buildings and improvements now or hereafter
located on the Land [and the Leased Land] (hereinafter collectively referred to
as the "IMPROVEMENTS") and all right, title and interest, if any, of Mortgagor
in and to the streets, roads, sidewalks and alleys abutting the Land [and the
Leased Land], and strips and gores within or adjoining the Land [and the Leased
Land], the air space and right to use said air space above the Land [and the
Leased Land] and any transferable development or similar rights appurtenant
thereto, all rights of ingress and egress by motor vehicles to parking
facilities on or within the Land [and the Leased Land], all easements now or
hereafter affecting the Land [and the Leased Land], royalties and all rights
appertaining to the use and enjoyment of the Land [and the Leased Land],
including alley, drainage, mineral, water, oil and gas rights;
TOGETHER with all fixtures and all appurtenances and additions
thereto and substitutions or replacements thereof owned by Mortgagor and now or
hereafter attached to the Premises (as hereinafter defined);
TOGETHER with all property, tangible and intangible, and all
additions thereto and substitutions or replacements thereof owned by Mortgagor
and now or hereinafter contained in, or used in connection with the Premises or
placed on any part thereof though not attached thereto, to the extent the same
constitutes real property in the state in which the Mortgaged Property is
located (all of the foregoing, including the items hereinafter enumerated,
collectively referred to as the "EQUIPMENT"), including all removable window and
floor coverings, furniture and furnishings, heating, lighting, plumbing,
ventilating, air conditioning, refrigerating, incinerating and elevator plants,
cooking facilities, vacuum cleaning systems, call systems, sprinkler systems and
other fire prevention and extinguishing apparatus and materials, motors,
machinery, pipes, appliances, equipment, fittings and fixtures (the Land and the
Leasehold Estate, together with the Improvements and the Equipment, are
hereinafter collectively referred to as the "PREMISES");
TOGETHER with all leases, subleases, lettings and licenses (except
Leases) of, and all other contracts, bonds and agreements affecting the Premises
or any part thereof now or hereafter entered into, and all amendments,
modifications, supplements, additions, extensions and renewals thereof (all of
the foregoing hereinafter collectively referred to as the "SUBORDINATE LEASES"),
and all right, title and interest of Mortgagor thereunder, including cash and
securities deposited thereunder (as down payments, security deposits or
otherwise), the right to receive and collect the rents, security deposits,
income, proceeds, earnings, royalties, revenues, issues and profits payable
thereunder and the rights to enforce, whether at law or in equity or by any
other means, all provisions and options thereof or thereunder (all of the
foregoing hereinafter collectively referred to as the "RENTS") and the right to
apply the same to the payment and performance of the Secured Obligations;
TOGETHER with all rights, dividends and/or claims of any kind
whatsoever relating to the Premises (including damage, secured, unsecured, lien,
priority and administration claims); together with the right to take any action
or file any papers or process in any court of competent jurisdiction, which may
in the opinion of Mortgagee be necessary to preserve, protect, or enforce such
rights or claims, including the filing of any proof of claim in any insolvency
proceeding under any state, Federal or other laws and any rights, claims or
awards accruing to or to be paid to Mortgagor in its capacity as landlord under
any Subordinate Lease;
TOGETHER with all other agreements, rights, written materials and
intangible personal property (whether now or in the future existing) arising in
connection with, derived from or otherwise relating to the Mortgaged Property or
any portion thereof or the ownership, development, construction, use, operation,
occupancy, lease, sale or financing of the Mortgaged Property or any portion
thereof, including: (i) permits, approvals, consents and other authorizations;
(ii) improvement plans and specifications and architectural drawings; (iii)
agreements with contractors, subcontractors and suppliers; (iv) warranties and
guaranties and (v) escrow proceeds, reserves, deposits, bonds, deferred
payments, refunds, rebates, discounts, cost savings and leases;
TOGETHER with all unearned premiums, accrued, accruing or to accrue
under insurance policies now or hereafter obtained by Mortgagor and relating to
the Premises and all proceeds of the conversion, voluntary or involuntary, of
the Premises into cash or liquidated claims, including proceeds of hazard and
title insurance and all awards and compensation heretofore and hereafter made to
the present and all subsequent owners of the Premises by any governmental or
other lawful authorities for the taking by eminent domain, condemnation or
otherwise, of all or any part of the Premises or any easement therein, including
awards for any change of grade of streets (collectively, "AWARDS");
TOGETHER with all right, title and interest of Mortgagor in and to
all extensions, improvements, betterments, renewals, substitutes and
replacements of, and all additions and appurtenances to, any of the foregoing
hereafter acquired by, or released to, Mortgagor or constructed, assembled or
placed by Mortgagor on the Premises and all conversions of the security
constituted thereby, immediately upon such acquisition, release, construction,
assemblage, placement or conversion, as the case may be, and in each such case,
without any further mortgage, conveyance, assignment or other act by Mortgagor,
shall become subject to the lien of this Mortgage as fully and completely, and
with the same effect, as though now owned by Mortgagor and specifically
described herein.
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee and its
successors and assigns, forever.
ARTICLE 1.
CERTAIN DEFINITIONS
SECTION 1.01. Certain Definitions. Capitalized terms used herein and
not defined herein shall have the meanings given them in the Credit Agreement.
As used herein, the following terms shall have the meanings set forth opposite
them below:
"ACTION" has the meaning set forth in Section 8.11.
"ADMINISTRATIVE AGENT" has the meaning set forth in the Recitals.
"AWARDS" has the meaning set forth in the Granting Clauses.
"BANKRUPTCY LAW" means any bankruptcy, insolvency, reorganization,
moratorium or similar law.
"BORROWER" has the meaning set forth in the Recitals.
"CONTEST" has the meaning set forth in Section 3.10.
"CREDIT AGREEMENT" has the meaning set forth in the Recitals.
"EQUIPMENT" has the meaning set forth in the Granting Clauses.
"IMPOSITIONS" means all taxes, assessments, vault, water and sewer rents,
rates, charges and assessments, levies, permits, inspection and license
fees and other governmental and quasi-governmental charges and any
penalties or interest for non-payment thereof, heretofore or hereafter
imposed which may become a lien upon the Mortgaged Property.
"IMPROVEMENTS" has the meaning set forth in the Granting Clauses.
"LAND" has the meaning set forth in the Granting Clauses.
"LENDER" has the meaning set forth in the Recitals.
["LEASED LAND" has the meaning set forth in the Granting Clauses.]
"LEASEHOLD ESTATE" has the meaning set forth in the Granting Clauses.
"LEASES" has the meaning set forth in the Granting Clauses.
"MATERIAL SUBORDINATE LEASE" has the meaning set forth in Section
3.17(c).
["MAXIMUM AMOUNT" has the meaning set forth in Section 2.01.]
"MORTGAGE" has the meaning set forth in the Recitals.
"MORTGAGED PROPERTY" has the meaning set forth in the Recitals.
"MORTGAGEE" has the meaning set forth in the Recitals.
"MORTGAGOR" has the meaning set forth in the Recitals.
"NOTICE" has the meaning set forth in Section 8.03
"PERMITTED ENCUMBRANCES" has the meaning set forth in Section 3.03.
"PREMISES" has the meaning set forth in the Granting Clauses.
"RENTS" has the meaning set forth in the Granting Clauses.
"SECURED OBLIGATIONS" has the meaning set forth in Section 2.01.
"SUBORDINATE LEASES" has the meaning set forth in the Granting Clauses.
ARTICLE II.
OBLIGATIONS SECURED
SECTION 2.01. Obligations Secured. This Mortgage is given for the
purpose of securing the payment of all obligations (of every kind and character
now or hereafter existing, whether matured or unmatured, contingent or
liquidated) of the Loan Parties: (i) under the Credit Agreement, (ii) the
Subsidiary Guaranty, and (iii) this Mortgage and (iv) the other Loan Documents;
[PROVIDED, HOWEVER, that the aggregate amount of the above obligations the
payment of which is secured by this Mortgage shall not exceed [____________]
("MAXIMUM AMOUNT")]. All of the obligations described in this Section are
referred to as the "SECURED OBLIGATIONS", and shall become due and payable no
later than ____________ , 20__.
SECTION 2.02. [Fraudulent Conveyance. Mortgagor hereby confirms its
intention that this Mortgage not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, Federal or state law,
regulation or decision of any court, to the extent applicable to this Mortgage.
To effectuate the foregoing intention, and notwithstanding anything contained in
this Mortgage to the contrary, Mortgagee and Mortgagor hereby irrevocably agree
that the Secured Obligations shall be limited to the Maximum Amount as will
result in the Secured Obligations of Mortgagor under this Mortgage not
constituting a fraudulent transfer or conveyance.]
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF MORTGAGOR
SECTION 3.01. Payment of Secured Obligations. Mortgagor shall
punctually pay when due, and timely perform, the Secured Obligations, and will
perform and observe all of its obligations under the Loan Documents.
SECTION 3.02. Legal Status, Authority and Other Matters. (b) LEGAL
STATUS. Mortgagor represents and warrants that it is duly organized and existing
in good standing under the laws of its jurisdiction of organization and has the
full power and authority to own the Mortgaged Property and carry out its
business in the state in which the Mortgaged Property is located.
(c) NO ACTIONS PENDING. There is no action, suit or proceeding,
judicial, administrative or otherwise, pending or, to the best of Mortgagor's
knowledge, threatened or contemplated against or affecting Mortgagor or the
Mortgaged Property that (i) could reasonably be expected to have a Material
Adverse Affect or (ii) purports to affect Mortgagor's ownership interest in or
to the Mortgaged Property.
SECTION 3.03. Warranty of Title. Mortgagor warrants that it has good
and marketable title to the Mortgaged Property in each case free and clear of
all liens, charges and encumbrances of every kind and character, subject only to
the encumbrances set forth on Exhibit B hereto ("PERMITTED ENCUMBRANCES") and
Permitted Liens; has and will continue to have full power and lawful authority
to encumber and convey the Mortgaged Property as provided herein; this Mortgage
is and will continue to remain a valid and enforceable first mortgage lien on
and security interest in the Mortgaged Property, subject only to Permitted
Encumbrances and Permitted Liens. Mortgagor further covenants that it will
preserve such title and will forever warrant and defend the title to the
Mortgaged Property unto Mortgagee against all lawful claims whatsoever and will
forever warrant and defend the validity, enforceability and priority of the lien
of this Mortgage against the claims of all persons and parties whomsoever.
SECTION 3.04. Operation and Maintenance. (a) REPAIR AND MAINTENANCE.
Mortgagor will maintain and preserve the Premises in good order, repair and
operating condition, consistent with past practices, and will promptly make all
appropriate repairs, restorations, renewals, replacements, additions and
improvements thereto, interior and exterior, structural and nonstructural,
foreseen and unforeseen, except where the failure to do so would not reasonably
be likely to have a Material Adverse Effect.
(b) STATUS OF THE PREMISES. The Premises is not located in an area
identified by the Secretary of Housing and Urban Development or a successor
thereto as an area having special flood hazards pursuant to the terms of the
National Flood Insurance Act of 1968, or the Flood Disaster Protection Act of
1973, as amended, or any successor law; or if the Premises is located in such an
area, Mortgagor will obtain and maintain insurance against damage or loss by
flood on such basis and in such amounts as shall be required by Mortgagee; (ii)
the Premises is served by all utilities required for the current use thereof;
(iii) all streets necessary to serve the Land, and the Improvements for the
current use thereof have been completed and are serviceable and have been
dedicated or accepted by the appropriate governmental entities and Mortgagor has
access from public roads to the Land, and the Improvements; and (iv) there is no
condemnation or similar proceeding pending or threatened affecting any part of
the Premises that might materially adversely affect the Premises.
(c) USE. Mortgagor will use the Premises for substantially the same
business as in effect as of the date hereof and for no other use unless
consented to in writing by Mortgagee. Mortgagor will not do or suffer to be done
anything which would or which could increase the risk of fire or other hazard to
the Premises or any other part thereof or which would or could result in
cancellation of any insurance policy carried with respect to the Premises.
(d) REMOVAL OF IMPROVEMENTS. Mortgagor will not remove any
Improvements except in the ordinary course of business from the Premises or
remove, demolish or alter, other than an alteration of an immaterial nature, the
structural character of any Improvements without the written consent of
Mortgagee, nor use or permit use of the Premises for any purpose other than that
for which the same are now used.
(e) DAMAGE. If the Premises or any part thereof are damaged by fire
or any other cause to the extent that it affects the normal continuing
operations of the Premises as such operations existed immediately prior to such
damage or otherwise materially affects the value of the Premises, Mortgagor will
give immediate written notice thereof to Mortgagee.
(f) ENTRANCE ONTO THE PREMISES. Mortgagee or its representative is
hereby authorized to enter upon and inspect the Premises in accordance to the
provisions set forth in Section 5.01(f) of the Credit Agreement.
(g) ZONING; TITLE MATTERS. Mortgagor will not, without the prior
written notice to Mortgagee, (i) initiate or support any zoning reclassification
of the Premises, seek any variance under existing zoning ordinances applicable
to the Premises or use or permit the use of the Premises in a manner which would
result in such use becoming a non-conforming use under the applicable zoning
ordinances, (ii) modify or amend any of the Permitted Encumbrances except to the
extent permitted pursuant to the Credit Agreement, (iii) impose any restrictive
covenants or encumbrances upon the Premises, execute or file any subdivision
plat affecting the Premises or consent to the annexation of the Premises to any
municipality or (iv) permit or suffer the Premises to be used by the public or
any person in such manner as might make possible a claim of adverse usage or
possession or of any implied dedication or easement.
SECTION 3.05. Insurance. (a) COVERAGE. Mortgagor shall maintain (i)
casualty insurance insuring the Improvements now or hereafter constituting a
part of the Mortgaged Property against damage by fire and the other hazards
covered by a standard all-risk, extended coverage insurance policy for the full
insurable value thereof (which, unless Mortgagee shall otherwise agree in
writing, shall mean the full repair and replacement value thereof without
reduction for depreciation or co-insurance), and (ii) Commercial General
Liability Insurance in respect of the operation of the Mortgaged Property as
required by the Loan Documents. In addition, Mortgagee may require Mortgagor to
carry such other insurance on the Mortgaged Property in such amounts as may from
time to time reasonably be generally required by institutional lenders.
(b) POLICY REQUIREMENTS. All liability insurance policies required
pursuant to Section 3.05(a) shall name Mortgagee as an additional insured
thereunder, and all other insurance policies required pursuant to Section
3.05(a), to the extent reasonably possible, or otherwise maintained by Mortgagor
shall name Mortgagee as the mortgagee under New York long form non-contributory
endorsements. All such insurance policies and endorsements shall be fully paid
or paid pursuant to an installment program offered to Mortgagor by the insurer
or its broker/agent, provided that the installments are paid on or before the
due date thereof so that all required insurance coverage is maintained without
interruption. All insurance policies required to be maintained by Mortgagor
shall contain such provisions and expiration dates, and be in such form and
issued by such insurance companies qualified and licensed to do business in the
jurisdiction in which the Mortgaged Property is located, as may be reasonably
acceptable to Mortgagee. All insurance companies issuing insurance for the
Mortgaged Property on behalf of the Mortgagor shall have a Best Insurance Guide
Rating of A/XI or better. Any coverage required to be maintained pursuant to
this Section may be maintained under a blanket insurance policy provided such
policy otherwise satisfies the requirements of this Section. Each policy
required to be maintained by Mortgagor shall provide that such policy may not be
cancelled or materially changed except upon not less than thirty (30) days'
prior written notice to Mortgagee of the intention of non-renewal, cancellation
or material change and that no act or thing done by Mortgagor shall invalidate
the policy as against Mortgagee. In the event Mortgagor fails to maintain
insurance in compliance with Section 3.05(a) or, in the event that a notice of
non-renewal, cancellation or material change is given to Mortgagee, as
aforesaid, and within ten (10) days after the delivery of such notice Mortgagor
shall fail to deliver to Mortgagee evidence of the purchase of a substitute
policy of insurance or a renewal of the existing policy of insurance, Mortgagee
may, after ten (10) days' notice to Mortgagor (or, if the policy in question
shall sooner expire or be terminated, on or after the day before the date of
such expiration or termination) but shall not be obligated to, obtain such
insurance and pay the premium therefor and Mortgagor shall, on demand, reimburse
Mortgagee for all sums, advances and reasonable expenses incurred in connection
therewith, together with interest thereon at the rate of interest applicable
under the Credit Agreement upon the occurrence of a Default (the "DEFAULT RATE")
from the date such amounts are advanced until the same are paid to Mortgagee.
(c) NO SEPARATE INSURANCE. Mortgagor shall not carry separate or
additional insurance concurrent in form or contributing, in the event of loss,
with that required hereunder unless endorsed in favor of Mortgagee as loss payee
or additional insured, as applicable, and otherwise acceptable to Mortgagee in
all respects.
(d) TRANSFER OF TITLE. In the event of foreclosure of this Mortgage
or other transfer of title or assignment of the Premises in extinguishment, in
whole or in part, of the Secured Obligations, all right, title and interest of
Mortgagor in and to all policies of insurance required under this Section or
otherwise then in force with respect to the Premises and all proceeds payable
thereunder and unearned premiums thereon shall immediately vest in the purchaser
or other transferee of the Premises.
(e) DELIVERY OF POLICIES. Mortgagor covenants that it has delivered
to Mortgagee, and shall, from time to time as may be requested by Mortgagee,
deliver to Mortgagee policies of insurance, or certificates thereof, that may be
reasonably requested by Mortgagee to confirm that the insurance required under
the terms of the Loan Documents is in place and in full force and effect.
SECTION 3.06. Liens and Liabilities. (a) DISCHARGE OF LIENS.
Mortgagor will pay, bond or otherwise discharge, from time to time when the same
shall become due, all claims and demands of mechanics, materialmen, laborers and
others which, if unpaid, might result in, or permit the creation of, a lien on
the Premises.
(b) CREATION OF LIENS. Mortgagor will not, without Mortgagee's
consent, create, place or permit to be created or placed or allow to remain, and
shall discharge and release within 10 days of the placing thereof, any deed of
trust, mortgage, trust deed, voluntary or involuntary lien, security interest or
other encumbrance against or covering the Premises, other than (i) Permitted
Encumbrances, (ii) Permitted Liens, (iii) and such deed of trusts, mortgages,
trust deeds, voluntary or involuntary liens, security interests or other
encumbrances against the Premises being contested in accordance with the
provisions of Section 3.06(a), whether or not subordinate hereto.
(c) NO CONSENT. Nothing in this Mortgage shall be deemed or
construed in any way as constituting the consent or request by Mortgagee,
express or implied, to any contractor, subcontractor, laborer, mechanic or
materialman for the performance of any labor or the furnishing of any material
for any improvement, construction, alteration or repair of the Premises.
Mortgagor further agrees that Mortgagee does not stand in any fiduciary
relationship to Mortgagor.
SECTION 3.07. Taxes and Other Charges. (a) TAXES ON THE PREMISES.
Mortgagor will promptly pay when due and before any penalty or interest may be
added thereto, all Impositions, as provided in Section 5.01(b) of the Credit
Agreement. Mortgagor will also pay any penalty, interest or cost for non-payment
of Impositions which may become due and payable.
(b) INCREASED COSTS. In the event of the enactment after the date
hereof of any law in the state in which the Mortgaged Property is located or any
other governmental entity deducting from the value of the Mortgaged Property for
the purpose of taxation any lien or security interest thereon, or changing in
any way the laws for the taxation of mortgages, deeds of trust or other liens or
debts secured thereby, or the manner of collection of such taxes, so as to
affect this Mortgage, the Secured Obligations, Mortgagee or the holders of the
Secured Obligations, then, and in such event, Mortgagor shall, on demand, pay to
Mortgagee or such holder, or reimburse Mortgagee or such holder for payment of,
all taxes, assessments, charges or liens for which Mortgagee or such holder is
or may be liable as a result thereof, provided that if any such payment or
reimbursement shall be unlawful or would constitute usury or render the Secured
Obligations wholly or partially usurious under applicable law, then Mortgagee
may, at its option, declare the Secured Obligations immediately due and payable
or require Mortgagor to pay or reimburse Mortgagee for payment of the lawful and
non-usurious portion thereof. Anything in this Mortgage to the contrary
notwithstanding, to the extent any demand under this Section 3.07(b) is given by
the Mortgagee or other holder more than 180 days after such Mortgagee or other
holder of the Secured Obligations has knowledge (or should have had knowledge)
of the occurrence of the event giving rise to the tax or other additional
amounts described in this Section 3.07(b), such Mortgagee or other holder of the
Secured Obligations shall not be entitled to compensation under this Section for
any such amounts incurred or accruing prior to the giving of such notice to the
Mortgagor.
SECTION 3.08. Damage and Destruction. (a) MORTGAGOR'S OBLIGATIONS.
In the event of any damage to or loss or destruction of the Premises, Mortgagor
shall (i) promptly notify Mortgagee of such event, if such event would give rise
to a claim under the insurance policies required to be maintained
by Mortgagor pursuant to Section 3.05 and (ii) take such steps as shall be
necessary to preserve any undamaged portion of the Premises.
(b) MORTGAGEE'S RIGHTS; APPLICATION OF PROCEEDS. In the event that
any portion of the Premises is so damaged, destroyed or lost, and such damage,
destruction or loss is covered, in whole or in part, by insurance required by
Section 3.05, then (i) Mortgagee may, but shall not be obligated to, make proof
of loss if not made promptly by Mortgagor and, if no no Event of Default has
occurred and is continuing, is hereby authorized and empowered by Mortgagor to
settle, adjust or compromise any claims for damage, destruction or loss
thereunder, (ii) except as provided in Section 3.08(a), each insurance company
concerned is hereby authorized and directed to make payment therefor directly to
Mortgagee, and (iii) at anytime after the occurrence and during the continuance
of an Event of Default, Mortgagee shall have the right to apply the insurance
proceeds (or Borrower shall repay an amount equal to any such proceeds not so
reinvested), FIRST, to reimburse Mortgagee and the holders of the Secured
Obligations for all reasonable costs and expenses, including reasonable
adjustors' and attorneys' fees and disbursements, incurred in connection with
the collection of such proceeds, and, SECOND, the remainder of such proceeds
shall be applied, at Mortgagee's option, in payment (without premium or penalty)
of all or any part of the Secured Obligations, in the order and manner
determined by Mortgagee (provided that to the extent that any portion of the
Secured Obligations shall remain outstanding after such application, such unpaid
portion of the Secured Obligations shall continue in full force and effect and
Mortgagor shall not be excused from the payment thereof), or to the cure of any
then current default hereunder, or to the restoration, replacement or
rebuilding, in whole or in part, of the portion of the Premises so damaged,
destroyed or lost, provided that any insurance proceeds held by Mortgagee to be
applied to the restoration, replacement or rebuilding of the Premises shall be
so held without payment or allowance of interest thereon and shall be paid out
from time to time upon compliance by Mortgagor with such provisions and
requirements as may reasonably be imposed by Mortgagee. In the event that
Mortgagor shall have received or possess all or any portion of the insurance
proceeds, Mortgagor, upon demand from Mortgagee, shall pay to Mortgagee an
amount equal to the amount so received by Mortgagor, to be applied as Mortgagee
shall have the right pursuant to this subsection. Notwithstanding anything
herein or at law or in equity to the contrary, no insurance proceeds or payments
in lieu thereof paid to Mortgagee shall be deemed trust funds, and Mortgagee
shall be entitled to dispose of such proceeds as provided in this Section.
(c) MORTGAGOR'S RIGHTS IF NO EVENT OF DEFAULT; APPLICATION OF
PROCEEDS. So long as no Event of Default shall have occurred and be continuing,
all insurance payments received by the Mortgagee in connection with any loss,
damage or destruction of any portion of the Premises will be released by the
Mortgagee to the Mortgagor, and such payments may be invested by the Mortgagor
in the business or used to prepay or retire Debt as permitted under the Credit
Agreement within one year following such release; PROVIDED, HOWEVER, that any
portion of such payments that has not been invested in the business or used to
prepay or retire Debt as permitted under the Credit Agreement within such
one-year period shall (i) be deemed to be Net Cash Proceeds occurring on the
last day of such one-year period and (ii) be applied to the prepayment of
Advances in accordance with Section 2.06(b)(ii) of the Credit Agreement;
PROVIDED FURTHER that, for purposes of the preceding PROVISO, such one-year
period shall be extended by up to six months from the last day of such one-year
period so long as (A) such payments are to be invested in the business or used
to prepay or retire Debt as permitted under the Credit Agreement within such
additional six-month period under the U.S. Borrower's or any of its Restricted
Subsidiaries' business plan as most recently adopted in good faith by its board
of directors and (B) such Person believes in good faith that such proceeds will
be so reinvested within such additional six-month period. Upon the occurrence
and during the continuance of any Event of Default, all insurance payments in
respect of the Premises shall be paid to the Mortgagee and shall, in the
Mortgagee's sole discretion, (i) be released to the Mortgagor to be applied as
set forth in the first sentence of this subsection (a) or (ii) be held as
additional collateral hereunder or applied as specified in the Credit Agreement.
(d) REPAIR UNECONOMIC [OR NOT PERMITTED UNDER LEASE]. (i)
Notwithstanding anything to the contrary in this Section 3.08, where such
damage, destruction, or loss is substantial and Mortgagor determines, consistent
with a good faith business judgment, that (A) the Premises so damaged, destroyed
or lost is no longer desirable for the operation of Mortgagor's business or (B)
it would be uneconomic for Mortgagor to restore, replace or rebuild the
Premises, then Mortgagor shall not be required to restore, replace or rebuild
the Premises, and Mortgagee shall be entitled to apply all Awards relating
thereto in accordance with subsection (b) of this Section.
(ii) Notwithstanding anything to the contrary in this Section 3.08,
if Mortgagor, as a tenant under a Lease, does not have the right to
perform any restoration, replacement or rebuilding contemplated by this
Section 3.08, then Mortgagor shall not be obligated to perform such
restoration, replacement or rebuilding and shall use all reasonable
efforts to enforce Mortgagor's rights, if any, under such Lease to cause
landlord thereunder to perform such restoration, replacement or
rebuilding, but if such landlord fails or refuses to do so, Mortgagor
shall not be in Default hereunder.]
(e) EFFECT ON THE SECURED OBLIGATIONS. Notwithstanding any loss,
damage or destruction referred to in this Section, Mortgagor shall continue to
pay and perform the Secured Obligations as provided herein. Any reduction in the
Secured Obligations resulting from such application shall be deemed to take
effect only on the date of receipt by Mortgagee of such insurance proceeds and
application against the Secured Obligations, provided that if prior to the
receipt by Mortgagee of such insurance proceeds the Mortgaged Property shall
have been sold on foreclosure of this Mortgage, or shall have been transferred
by deed in lieu of foreclosure of this Mortgage, Mortgagee shall have the right
to receive the same to the extent of any deficiency found to be due upon such
sale, with legal interest thereon together with reasonable attorneys' fees and
disbursements incurred by Mortgagee in connection with the collection thereof.
SECTION 3.09. Condemnation. (a) MORTGAGOR'S OBLIGATIONS;
PROCEEDINGS. Mortgagor, promptly upon obtaining knowledge of any pending or
threatened institution of any proceedings for the condemnation of the Premises,
or of any right of eminent domain which would materially adversely affect the
use and operation of the Premises as required hereunder, will notify Mortgagee
of the threat or pendency thereof. If an Event of Default shall have occurred
and be continuing, Mortgagee may participate in any such proceedings, and
Mortgagor from time to time will execute and deliver to Mortgagee all
instruments requested by Mortgagee or as may be required to permit such
participation. Mortgagor shall, at its expense, diligently prosecute any such
proceedings, and, if an Event of Default shall have occurred and be continuing,
(i) shall deliver to Mortgagee copies of all papers served in connection
therewith and shall consult and cooperate with Mortgagee, its attorneys and
agents, in the carrying on and defense of any such proceedings and (ii) shall
not settle any such proceeding without Mortgagee's consent.
(b) MORTGAGEE'S RIGHTS; APPLICATION OF AWARDS. If an Event of
Default has occurred and is continuing, Mortgagee shall have the right to apply
any Awards FIRST, to reimburse Mortgagee and the holders of the Secured
Obligations for all reasonable costs and expenses, including reasonable
appraiser and attorneys' fees and disbursements, incurred in connection with the
collection of such proceeds, and, SECOND, the remainder of such Awards shall be
applied, at Mortgagee's option, in payment (without premium or penalty) of all
or any part of the Secured Obligations, in the order and manner determined by
Mortgagee (provided that to the extent that any portion of the Secured
Obligations shall remain outstanding after such application, such unpaid portion
of the Secured Obligations shall continue in full force and effect and Mortgagor
shall not be excused from the payment thereof), or to the cure of any then
current default hereunder, or to the restoration, replacement or rebuilding, in
whole or in part, of the portion of the Premises so taken or condemned provided
that any Awards held by Mortgagee to be
applied to the restoration, replacement or rebuilding of the Premises shall be
so held without payment or allowance of interest thereon and shall be paid out
from time to time upon compliance by Mortgagor with such provisions and
requirements as may reasonably be imposed by Mortgagee. In the event that
Mortgagor shall have received all or any portion of such Awards, Mortgagor, upon
demand from Mortgagee, shall pay to Mortgagee an amount equal to the amount so
received by Mortgagor, to be applied as Mortgagee shall have the right pursuant
to this subsection. Notwithstanding anything herein or at law or in equity to
the contrary, none of the Awards paid to Mortgagee under this Section shall be
deemed trust funds and Mortgagee shall be entitled to dispose of the same as
provided in this Section.
(c) MORTGAGOR'S RIGHTS IF NO EVENT OF DEFAULT; APPLICATION OF
PROCEEDS. Notwithstanding the foregoing, so long as no Event of Default has
occurred and is continuing, in the event of a condemnation of all or any portion
of the Premises in connection with which Awards shall have been paid, then
Mortgagor shall be entitled to collect an amount not to exceed Five Hundred
Thousand Dollars ($500,000.00), in each calendar year, from the applicable
governmental or other lawful authorities directly (or from Mortgagee if such
proceeds shall have been paid to Mortgagee by such governmental or other lawful
authorities). Any Award collected by Mortgagor pursuant to this subsection (c),
shall be treated for all purposes as Net Cash Proceeds under the Credit
Agreement.
(d) REPAIR UNECONOMIC [OR NOT PERMITTED UNDER LEASE]. (i)
Notwithstanding anything to the contrary in this Section 3.09, where a
substantial portion of the Premises is condemned or taken and Mortgagor
determines, consistent with a good faith business judgment, that (A) the portion
of the Premises subject to such condemnation or taking is no longer desirable
for the operation of Mortgagor's business or (B) it would be uneconomic for
Mortgagor to replace or, if applicable, restore or repair such portion of the
Premises, then Mortgagor shall not be required to replace, restore or repair
such Property , and Mortgagee shall be entitled to apply all Awards relating
thereto in accordance with subsection (b) of this Section.
(ii) [Notwithstanding anything to the contrary in this Section
3.09, if Mortgagor, as a tenant under a Lease, does not have the right or
obligation to replace, restore or repair the Premises as contemplated by
this Section 3.09, then Mortgagor shall not be obligated to replace,
restore or repair the Premises and shall use all reasonable efforts to
enforce Mortgagor's rights, if any, under such Lease to cause landlord to
restore, replace or repair the Premises, but if such landlord fails or
refuses to do so, Mortgagor shall not be in Default hereunder.]
(e) EFFECT ON THE SECURED OBLIGATIONS. Notwithstanding any
condemnation, taking or other proceeding referred to in this Section, Mortgagor
shall continue to pay and perform the Secured Obligations as provided herein.
Any reduction in the Secured Obligations resulting from such application shall
be deemed to take effect only on the date of receipt by Mortgagee of such Awards
and application against the Secured Obligations, provided that if prior to the
receipt by Mortgagee of such Awards the Mortgaged Property shall have been sold
on foreclosure of this Mortgage, or shall have been transferred by deed in lieu
of foreclosure of this Mortgage, Mortgagee shall have the right to receive the
same to the extent of any deficiency found to be due upon such sale, with legal
interest thereon together with reasonable attorneys' fees and disbursements
incurred by Mortgagee in connection with the collection thereof.
SECTION 3.10. Covenants Concerning the Leases. Mortgagor hereby
represents, warrants, covenants and agrees that:
(a) If any of the Leases is rejected or disaffirmed by the lessor
thereunder (or by any receiver, trustee, custodian or other party who succeeds
to the rights of such lessor) pursuant to any bankruptcy, insolvency,
reorganization, moratorium or similar law (any such law hereinafter collectively
referred to as a "BANKRUPTCY LAW"), Mortgagor covenants that, except as
otherwise permitted pursuant to Section 5.01(h) of the Credit Agreement, it will
not elect to treat such Lease as terminated under 11 U.S.C. / / 365(h) or any
similar or successor law or right. If an Event of Default has occurred and is
continuing, Mortgagee shall have the sole and exclusive right to make or refrain
from making any such election, and Mortgagor agrees that any such election, if
made by Mortgagor other than in accordance with this subsection, shall be void
and of no force or effect.
(b) If the lessor under any Lease (or any receiver, trustee,
custodian or other party who succeeds to the rights of such lessor) rejects or
disaffirms such Lease pursuant to any Bankruptcy Law and an Event of Default has
occurred and is continuing, Mortgagee may elect to have Mortgagor remain in
possession under any legal right Mortgagor may have to occupy the premises
leased pursuant to such Lease, and upon such election (A) Mortgagor shall remain
in such possession and shall perform all acts necessary for Mortgagor to retain
its right to remain in such possession for the unexpired term of such Lease
(including all renewals thereof), whether such acts are required under the then
existing terms and provisions of such Lease or otherwise, and (B) all of the
terms and provisions of this Mortgage and the lien created hereby shall remain
in full force and effect and shall be extended automatically to such possession,
occupancy and interest of Mortgagor.
(c) Mortgagor shall use commercially reasonable efforts to cause the
lessor under each of the Leases to agree in writing that in the event of (A) the
rejection or disaffirmance by Mortgagor (or by any receiver, trustee, custodian
or other party who succeeds to the rights of Mortgagor) of such Lease pursuant
to any Bankruptcy Law or (B) Mortgagor's inability to satisfy all conditions
necessary to permit Mortgagor (or such receiver, trustee, custodian or other
party) to assume and preserve the Lease pursuant to any Bankruptcy Law, such
lessor will, at Mortgagee's request and option, (i) allow Mortgagee or its
designee to cure any monetary defaults of Mortgagor and to become the lessee
under such Lease and agree that Mortgagee or its designee shall have no
responsibility for, and such lease will not be terminated by virtue of, any past
non-monetary default of Mortgagor or enter into a new lease of the Leased Land
with Mortgagee or a designee of Mortgagee for the remainder of the term
(including renewals thereof) of such Lease (a "NEW LEASE"), effective as of the
date of such rejection or disaffirmance, at the rent and upon all the terms and
provisions of such Lease, provided that any improvements to and any property on
or related to the Leased Land shall immediately, upon execution and delivery to
Mortgagee or its designee, vest in Mortgagee or such designee, as the case may
be (subject to the reversionary interest of the lessor therein upon the
expiration or termination of the New Lease). Mortgagor agrees to execute such
other instruments as Mortgagee may reasonably request to confirm Mortgagee's or
such designee's right, title and interest in and to the New Lease and any
improvements and/or property appurtenant thereto.
(d) If an event described in Section 7.01(f) of the Credit Agreement
shall occur, Mortgagor covenants that (A) it shall not reject or disaffirm any
of the Leases without the prior consent of Mortgagee, and (B) at the direction
of Mortgagee it shall, in a timely fashion, (I) take all actions (including
curing all existing defaults and providing assurance of future performance) as
may be required to permit Mortgagor to assume any such Lease and (II) assume
such Lease.]
SECTION 3.11. Contest. Notwithstanding anything to the contrary
contained herein, Mortgagor shall have the right to contest in good faith and at
its own expense the validity or applicability of any duty or obligation
described in Section 3.03, the validity of any lien, encumbrance, charge or
security referred to in Section 3.06 and any Imposition imposed upon the
Premises (a "CONTEST") by an appropriate legal proceeding which proceeding must
operate to prevent the collection of such Impositions or other realization
thereon and the sale or forfeiture of the Mortgaged Property or any part thereof
to satisfy the same; provided, however, that if at any time payment of any
Imposition which is the subject of such a Contest shall become necessary to
prevent (i) the delivery of a tax deed conveying the Mortgaged
Property because of non-payment or (ii) the imposition of any civil or criminal
penalty or liability on Mortgagee or the holders of the Secured Obligations,
Mortgagor shall pay the same in sufficient time to avoid the delivery of such
tax deed or the imposition of any such penalty or liability.
SECTION 3.12. Notice Limiting Amount. Mortgagor covenants that it
will not, without the prior written consent of Mortgagee, file of record any
notice limiting the maximum principal amount secured by this Mortgage.
SECTION 3.13. Compliance with Environmental Laws. Mortgagor agrees
to comply with Sections 5.01(o) and 5.01(p) of the Credit Agreement. In the
event that Mortgagor does not expeditiously proceed with any compliance required
under any Environmental Law as provided in the Credit Agreement, Mortgagee,
immediately after notice to Mortgagor, may elect to undertake such compliance.
Any monies expended by Mortgagee in efforts to comply with any Environmental Law
(including the costs of hiring consultants, undertaking sampling and testing,
performing any cleanup necessary or useful in the compliance process and
attorney's fees and disbursements) will be reimbursed by Mortgagor to Mortgagee
on demand, will bear interest until paid in full at the default rate as provided
in the Credit Agreement and will be secured by this Mortgage.
SECTION 3.14. Permits. Mortgagor has and will maintain all necessary
certificates, licenses, authorizations, registrations, permits and/or approvals
necessary for the operation, use and occupancy of the Premises and the conduct
of Mortgagor's business at the Premises and, promptly upon reasonable request by
Mortgagee, Mortgagor shall deliver to Mortgagee copies of all of the same.
SECTION 3.15. Compliance With Applicable Laws. The Premises and the
operation, use and occupancy thereof do not and will not violate in any material
respect any present or future federal, state, municipal or local laws,
ordinances, rules, regulations, requirements, judgments, decrees,
determinations, awards or court orders, including all environmental laws and
zoning ordinances (collectively, "APPLICABLE LAWS"), and Mortgagor shall cause
the Premises and the operation, use and occupancy thereof to continue to be in
substantial compliance with all Applicable Laws except such as may be contested
in good faith or as to which a bona fide dispute may exist.
SECTION 3.16. Further Assurances. Mortgagor shall:
(i) at Mortgagor's sole cost and expense and at the reasonable
request of Mortgagee, (A) promptly correct any defect or error which may
be discovered in the contents of this Mortgage or in its execution,
acknowledgment or recordation and (B) promptly do, execute, acknowledge
and deliver any and all such further acts, deeds, conveyances, mortgages,
deeds of trust, trust deeds, assignments, estoppel certificates,
financing statements and continuations thereof, notices of assignment,
transfers, certificates, assurances and other instruments that may be
necessary or desirable or that Mortgagee may reasonably request from time
to time in order to carry out more effectively the purposes of this
Mortgage, to subject to the lien and security interest hereby created on
any of Mortgagor's properties, rights or interests covered or now or
hereafter intended to be covered hereby, to perfect and maintain said
lien and security interest, and to better assure, convey, grant, assign,
transfer and confirm unto Mortgagee the rights granted or now or
hereafter intended to be granted to Mortgagee hereunder or under any
other instrument executed in connection with this Mortgage or which
Mortgagor may be or become bound to convey, mortgage or assign to
Mortgagee in order to carry out the intention or facilitate the
performance of the provisions of this Mortgage; and
(ii) at the reasonable request of Mortgagee, promptly record
and re-record, file and refile and register and re-register this
Mortgage, any financing or continuation statements and
every other instrument in addition or supplemental to any thereof that
shall be required by any present or future law in order to perfect and
maintain the validity, effectiveness and priority of this Mortgage and
the lien and security interest intended to be created hereby, or to
subject after-acquired property of Mortgagor to such lien and security
interest, in such manner and places and within such times as may be
necessary to accomplish such purposes and to preserve and protect the
rights and remedies of Mortgagee. Upon any failure by Mortgagor to do so
after request by Mortgagee, Mortgagee may make, execute, record, file,
re-record or refile any and all such mortgages, instruments, certificates
and documents for and in the name of Mortgagor, and Mortgagor hereby
irrevocably appoints Mortgagee the agent and attorney-in-fact of
Mortgagor to do so, which appointment will terminate upon the
satisfaction of record of this Mortgage. Mortgagor will furnish to
Mortgagee evidence reasonably satisfactory to Mortgagee of every such
recording, filing or registration. Mortgagee may, at Mortgagor's sole
expense, file copies or reproductions of this instrument as financing
statements at any time and from time to time at Mortgagee's option
without further authorization from Mortgagor.
SECTION 3.17. Subordinate Leases (a) ASSIGNMENT. Mortgagor hereby
absolutely and presently bargains, sells, transfers, assigns and sets over to
Mortgagee, as further security for the payment of the Secured Obligations, all
of its right, title and interest in and to the Subordinate Leases and the Rents
payable thereunder and all rights of Mortgagor thereunder and any and all
deposits held as security under the Subordinate Leases, whether before or after
foreclosure or during the full period of redemption, if any, and shall, upon
demand, deliver to Mortgagee an executed counterpart of each Subordinate Lease.
The assignment of the Subordinate Leases and Rents, and of the aforesaid rights
with respect thereto, is intended to be and is an absolute present assignment
from Mortgagor to Mortgagee and not merely the passing of a security interest.
Such assignment and grant shall continue in effect until the Secured Obligations
are paid, the execution of this Mortgage constituting and evidencing the
irrevocable consent of Mortgagor to the entry upon and taking possession of the
Premises by Mortgagee pursuant to such grant, whether foreclosure has been
instituted or not and without applying for a receiver. Unless a Default under
Section 7.01(a) or 7.01(f) of the Credit Agreement has occurred and is
continuing or an Event of Default has occurred, Mortgagor shall be entitled to
collect and receive the Rents and agrees to hold the same in trust. Such right
of Mortgagor to collect and receive said Rents shall be automatically revoked if
a Default under Section 7.01(a) or 7.01(f) of the Credit Agreement has occurred
and is continuing or an Event of Default has occurred and thereafter Mortgagee
shall have the right and authority to exercise any of the rights or remedies
referred to or set forth in Article VI. In addition, if a Default under Section
7.01(a) or 7.01(f) of the Credit Agreement has occurred and is continuing or an
Event of Default has occurred, Mortgagor shall promptly pay to Mortgagee (i) all
rent prepayments and security or other deposits paid to Mortgagor pursuant to
any lease assigned hereunder and (ii) all charges for services or facilities or
for escalation which were paid pursuant to any such lease to the extent
allocable to any period from and after the occurrence and continuance of a
Default under Section 7.01(a) or 7.01(f) of the Credit Agreement or after the
occurrence of an Event of Default. Nothing contained in this Section 3.15 (a)
shall be construed to bind Mortgagee to the performance of any of the covenants,
conditions or provisions contained in any Subordinate Lease or otherwise to
impose any obligation on Mortgagee (including any liability under the covenant
of quiet enjoyment contained in any Subordinate Lease or under any applicable
law in the event that any tenant shall have been joined as a party defendant in
any action to foreclose this Mortgage and shall have been barred and foreclosed
thereby of all right, title and interest and equity of redemption in the
Premises), except that Mortgagee shall be accountable for any money actually
received pursuant to such assignment. Mortgagor hereby further grants to
Mortgagee the right to notify the tenant under any Subordinate Lease of the
assignment thereof and, if a Default under Section 7.01(a) or 7.01(f) of the
Credit Agreement has occurred and is continuing or an Event of Default has
occurred (i) to demand that the tenant under any Subordinate Lease pay all
amounts due thereunder directly to Mortgagee, (ii) to enter upon and take
possession of the Premises for the purpose of collecting the Rents, (iii) to
dispossess by the usual summary proceedings any tenant
defaulting in the payment thereof, (iv) to let the Premises, or any part
thereof, and (v) to apply the Rents, after payment of all necessary charges and
expenses, on account of the Secured Obligations.
(b) Mortgagor's Obligation to Pay Rent. If Mortgagor is not required
to surrender possession of the Premises hereunder in the event of any Event of
Default has occurred and is continuing, Mortgagor will pay monthly in advance to
Mortgagee, on its entry into possession pursuant to Article VI, or to any
receiver appointed to collect said Rents, the fair and reasonable rental value
for the use and occupation of the Premises or such part thereof as may be in the
possession of Mortgagor. Upon a default in any such payment, Mortgagor will
vacate and surrender such possession to Mortgagee or such receiver, and, in
default thereof, may be evicted by summary or any other available proceedings or
actions.
(c) Mortgagor will (i) perform or cause to be performed all the
lessor's obligations under any Subordinate Lease that is material to Mortgagor
(a "MATERIAL SUBORDINATE LEASE"), (ii) enforce (including the termination and
cancellation of any Material Subordinate Lease, so long as the same is a bona
fide enforcement of Mortgagor's right as lessor under any such Material
Subordinate Lease and such termination or cancellation, either by itself or in
the aggregate with other terminations and cancellations, will not diminish or
impair the security of this Mortgage) the performance by the lessee under its
respective Subordinate Lease of all of said lessee's obligations thereunder and
(iii) give Mortgagee prompt notice and a copy of any notice of default, event of
default, termination or cancellation sent or received by Mortgagor with respect
to any Material Subordinate Lease;
(d) (i) Except as provided in subsection (c), Mortgagor will not,
without Mortgagee's consent, (1) assign, mortgage, pledge or otherwise transfer,
dispose of or encumber, whether by operation of law or otherwise, any Material
Subordinate Lease or any of the Rents, (2) accept or permit the acceptance of a
prepayment of any amounts payable under such Material Subordinate Lease for more
than one month in advance of the due date therefor, (3) enter into, amend,
modify, cancel, terminate or accept a surrender of any Material Subordinate
Lease or (4) enter into any Material Subordinate Lease after the date hereof.
(ii) Supplementing the provisions of paragraph (i) of this
subsection (d), if the lessee under any Material Subordinate Lease (or
any receiver, trustee, custodian or other party who succeeds to the
rights of any lessee) rejects or disaffirms such Material Subordinate
Lease pursuant to any Bankruptcy Law, Mortgagor hereby assigns to
Mortgagee the proceeds of any claims (including the right to retain or
apply any security deposits) that Mortgagor may have against the lessee
(or receiver, trustee, custodian or other party who succeeds to the
rights of any lessee) and any guarantor of any of the Material
Subordinate Leases, under any one or more of the Material Subordinate
Leases or any guaranty thereof based upon (1) any breach by such lessee
of the terms and provisions of the applicable Lease (including any claim
that Mortgagor may have by reason of a termination, rejection or
disaffirmance of such Subordinate Lease pursuant to any Bankruptcy Law),
and (2) the use and occupancy of the premises demised thereby, whether or
not pursuant to the applicable Subordinate Lease (including any claim for
use and occupancy arising under any Bankruptcy Law). Mortgagor,
immediately upon obtaining knowledge of any such breach or use by any
such lessee, will notify Mortgagee of any such breach or use. Mortgagee
shall have the sole right to elect, either:
(a) to proceed against such lessee or guarantor as if it were
the named lessor thereunder, in Mortgagor's name or in Mortgagee's name
as agent for Mortgagor and Mortgagor agrees to cooperate with Mortgagee
in such action and shall execute any and all documents required in
furtherance of such action; or
(b) to have Mortgagor proceed in Mortgagor's and Mortgagee's
behalf in which event Mortgagee may participate in any such proceedings,
and Mortgagor from time to time will deliver to Mortgagee all instruments
requested by Mortgagee or as may be required to permit such
participation. Mortgagor shall, at its expense, diligently prosecute any
such proceedings, shall deliver to Mortgagee copies of all papers served
in connection therewith and shall consult and cooperate with Mortgagee,
its attorneys and agents, in the carrying on and defense of any such
proceedings; provided that no settlement of any such proceeding shall be
made by Mortgagor without Mortgagee's consent.
ARTICLE IV.
ADDITIONAL ADVANCES; EXPENSES; INDEMNITY
SECTION 4.01. Additional Advances and Disbursements. (a) Mortgagor
agrees that, if Mortgagor shall default in any of its obligations hereunder,
then Mortgagee shall have the right without notice to Mortgagor to advance all
or any part of amounts owing or to perform any or all required actions. No such
advance or performance shall be deemed to have cured such default by Mortgagor
or any Event of Default with respect thereto. All sums advanced and all expenses
incurred by Mortgagee in connection with such advances or actions, and all other
sums advanced or expenses incurred by Mortgagee hereunder or under applicable
law (whether required or optional and whether indemnified hereunder or not)
shall be part of the Secured Obligations, shall bear interest at the Default
Rate and as provided in the Credit Agreement and shall be secured by this
Mortgage. Mortgagor hereby appoints Mortgagee its true and lawful
attorney-in-fact to make the payments and effect the performance contemplated by
the aforesaid provisions in the name and on behalf of Mortgagor. This
appointment, being coupled with an interest, shall be irrevocable until all of
the Secured Obligations shall be fully satisfied, paid and performed and
Mortgagee shall have no further Secured Obligations.
(b) This Mortgage secures all Secured Obligations of Mortgagor and
the other Loan Parties Borrowers, a portion of which will be constituted by
revolving credit indebtedness pursuant to which Mortgagor and/or the other Loan
Parties may borrow, repay and reborrow. This Mortgage secures not only initial
advances of such revolving credit indebtedness, but also all future advances of
the revolving credit indebtedness and all additional indebtedness, whether
direct, indirect, future, contingent or otherwise, connected with or arising out
of the Credit Agreement, as the same may hereafter by amended, to the extent of
not more than the Maximum Amount.
SECTION 4.02. Other Expenses. Mortgagor will pay or, on demand,
reimburse Mortgagee or any holder of the Secured Obligations for the payment of
any and all reasonable costs or expenses (including reasonable attorneys' fees
and disbursements) incurred in connection with (i) any default or Event of
Default by Mortgagor hereunder, (ii) the exercise or enforcement by or on behalf
of Mortgagee or any holder of the Secured Obligations of any of its rights or of
Mortgagor's obligations under the Loan Documents or (iii) the granting,
administration, enforcement and closing of the transactions contemplated
hereunder.
SECTION 4.03. Interest After Default. If any payment due hereunder
or under the other Loan Documents is not paid in full when due, whether by
acceleration or otherwise, then the same shall bear interest hereunder at the
Default Rate, and such interest shall be added to and become a part of the
Secured Obligations and shall be secured hereby.
SECTION 4.04. Indemnity. Mortgagor agrees to indemnify and hold
harmless the Administrative Agent, each Lender Party and each of their
Affiliates and their 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 which may be imposed on,
incurred by or asserted against any of the Indemnified Parties in connection
with any transaction in any way connected with the Mortgaged Property or the
Loan Documents, except to the extent any such loss, damage, claim, cost or
expense is the result of the willful misconduct or gross negligence of the
indemnified party. Any amount payable under this Section shall be deemed a
demand obligation, shall be added to and become a part of the Secured
Obligations, shall bear interest at the default rate as provided in the Credit
Agreement, and shall be secured by this Mortgage.
ARTICLE V.
SALE OR TRANSFER OF THE PREMISES
SECTION 5.01. Continuous Ownership. Mortgagor acknowledges that the
continuous ownership of the Mortgaged Property by Mortgagor, except as otherwise
expressly permitted in Section 5.02(d) of the Credit Agreement, is of a material
nature to the transaction hereinabove described and Mortgagee's agreement to
create the Secured Obligations. Without Mortgagee's prior written consent,
Mortgagor will not, whether voluntarily or involuntarily (other than as result
of transfer described in Section 3.09 herein), (a) sell, grant, convey, assign
or otherwise transfer, by operation of law or otherwise, (b) permit to be the
subject of any transaction described in clause (a) above, (c) enter into an
agreement for any transaction described in clause (a) above, or (d) grant an
option which or take any action which pursuant to the terms of any agreement to
which Mortgagor is a party may result in any transaction described in clause (a)
above of, the Mortgaged Property, or any legal, beneficial or equitable interest
therein (the foregoing, collectively or severally, "TRANSFER"), other than any
specific Transfers expressly permitted by Section 5.02(d) of the Credit
Agreement. The provisions of this Section shall apply to each and every such
Transfer of all or any portion of the Mortgaged Property or any legal or
equitable interest therein, regardless whether or not Mortgagee has consented
to, or waived by its action or inaction is rights hereunder with respect to any
previous Transfer of all or any portion of the Mortgaged Property or any legal
or equitable interest therein.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. The occurrence of an "Event of
Default" under the Credit Agreement shall be an Event of Default hereunder and
upon acceleration of the indebtedness evidenced by the Credit Agreement, all
Secured Obligations shall immediately become due and payable without further
notice to Mortgagor .
SECTION 6.02. Remedies. Upon the occurrence and continuance of any
Event of Default, Mortgagee may, in addition to any rights or remedies available
to it hereunder or under the other Loan Documents and to the extent permitted by
applicable law, take such action personally or by its agents or attorneys, with
or without entry, and without notice, demand, presentment or protest (each and
all of which are hereby waived), as it deems necessary or advisable to protect
and enforce its rights and remedies against Mortgagor and in and to the
Mortgaged Property, including the following actions, each
of which may be pursued concurrently or otherwise, at such time and in such
order as Mortgagee may determine, in its sole discretion, without impairing or
otherwise affecting its other rights or remedies:
(i) institute a proceeding or proceedings, judicial or
otherwise, for the complete or partial foreclosure of this Mortgage
under any applicable provision of law; or
(ii) sell the Mortgaged Property, and all estate, right,
title, interest, claim and demand of Mortgagor therein, and all
rights of redemption thereof, at one or more sales, as an entirety
or in parcels, with such elements of real and/or personal property,
and at such time and place and upon such terms as it may deem
expedient, or as may be required by applicable law, and in the event
of a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, this Mortgage shall continue as a lien and
security interest on the remaining portion of the Mortgaged
Property; or
(iii) institute an action, suit or proceeding in equity for
the specific performance of any of the provisions contained in the
Loan Documents; or
(iv) apply for the appointment of a receiver, custodian,
trustee, liquidator or conservator of the Mortgaged Property, to be
vested with the fullest powers permitted under applicable law, as a
matter of right and without regard to, or the necessity to disprove,
the adequacy of the security for the Secured Obligations or the
solvency of Mortgagor or any other person liable for the payment of
the Secured Obligations, and Mortgagor and each other person so
liable waives or shall be deemed to have waived such necessity and
consents or shall be deemed to have consented to such appointment;
or
(v) enter upon the Premises, and exclude Mortgagor and its
agents and servants wholly therefrom, without liability for
trespass, damages or otherwise, and take possession of all books,
records and accounts relating thereto and all other Mortgaged
Property, and Mortgagor agrees to surrender possession of the
Mortgaged Property and of such books, records and accounts to
Mortgagee on demand after the happening and during the continuance
of an Event of Default; and having and holding the same may use,
operate, manage, preserve, control and otherwise deal therewith and
conduct the business thereof, either personally or by its
superintendents, managers, agents, servants, attorneys or receivers,
without interference from Mortgagor ( including, without limitation,
(i) entering into such contracts and taking such other action as
Mortgagee deems appropriate to complete any construction on the
Land, and in connection with any such action Mortgagee may modify
plans and specifications as Mortgagee deems appropriate; (ii)
making, canceling, enforcing or modifying leases; (iii) obtaining
and evicting tenants; (iv) fixing or modifying rents; (v) conducting
the business of Mortgagor in its own name or in the name of
Mortgagor; (vi) using any and all of Mortgagor's properties and
facilities relating to the Premises; (vii) dealing with Mortgagor's
creditors, debtors, tenants, lessees, agents, employees and other
Persons (as defined in the Credit Agreement) having any relationship
whatsoever with Mortgagor, and (viii) altering or amending any
contracts between them, in any manner Mortgagee may determine); and
upon each such entry and from time to time thereafter may, at the
expense of Mortgagor and the Mortgaged Property, without
interference by Mortgagor and as Mortgagee may deem advisable, (i)
insure or reinsure the Premises, (ii) make all necessary or proper
repairs, renewals, replacements, alterations, additions, betterments
and improvements thereto and thereon and (iii) in every such case in
connection with the foregoing have the
right to exercise all rights and powers of Mortgagor with respect to
the Mortgaged Property, either in Mortgagor's name or otherwise; or
(vi) with or without the entrance upon the Premises, collect,
receive, ▇▇▇ for and recover in its own name all Rents and cash
collateral derived from the Mortgaged Property, and after deducting
therefrom all reasonable costs, expenses and liabilities of every
character incurred by Mortgagee in collecting the same and in using,
operating, managing, preserving and controlling the Mortgaged
Property, and otherwise in exercising Mortgagee's rights under
subsection (e) of this Section, including all amounts necessary to
pay Impositions, insurance premiums and other charges in connection
with the Premises, as well as compensation for the services of
Mortgagee and their respective attorneys, agents and employees, to
apply the remainder as provided in Section 6.05; or
(vii) release any portion of the Mortgaged Property for such
consideration as Mortgagee may require without, as to the remainder
of the Mortgaged Property, in any way impairing or affecting the
lien or priority of this Mortgage, or improving the position of any
subordinate lienholder with respect thereto, except to the extent
that the Secured Obligations shall have been reduced by the actual
monetary consideration, if any, received by Mortgagee for such
release and applied to the Secured Obligations, and may accept by
assignment, pledge or otherwise any other property in place thereof
as Mortgagee may require without being accountable for so doing to
any other lienholder; or
(viii)take all actions permitted under the Uniform Commercial
Code in effect in the jurisdiction in which the Mortgaged Property
is located; or
(ix) take any other action, or pursue any other right or
remedy, as Mortgagee may have under applicable law, and Mortgagor
does hereby grant the same to Mortgagee.
In the event that Mortgagee shall exercise any of the rights or
remedies set forth in subsections (e) and (f) of this Section, Mortgagee shall
not be deemed to have entered upon or taken possession of the Mortgaged Property
except upon the exercise of its option to do so, evidenced by its demand and
overt act for such purpose, nor shall it be deemed a beneficiary or mortgagee in
possession by reason of such entry or taking possession. Mortgagee shall not be
liable to account for any action taken pursuant to any such exercise other than
for Rents actually received by Mortgagee, nor liable for any loss sustained by
Mortgagor resulting from any failure to let the Premises, or from any other act
or omission of Mortgagee except to the extent such loss is caused by the willful
misconduct or bad faith of Mortgagee.
SECTION 6.03. Rights Pertaining to Sales. Subject to the provisions
or other requirements of law and except as otherwise provided herein, the
following provisions shall apply to any sale or sales of all or any portion of
the Mortgaged Property under or by virtue of this Article VI, whether made under
the power of sale herein granted or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale:
(i) Mortgagee may conduct any number of sales from time to
time. The power of sale set forth in Section 6.02(c) hereof shall
not be exhausted by any one or more such sales as to any part of the
Mortgaged Property which shall not have been sold, nor by any sale
which is not completed or is defective in Mortgagee's opinion, until
the Secured Obligations shall have been paid in full.
(ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for
such postponed or adjourned sale without further notice. Without
limiting the foregoing, in case Mortgagee shall have proceeded to
enforce any right or remedy under this Mortgage by receiver, entry
or otherwise, and such proceedings have been discontinued or
abandoned for any such reason or shall have been determined
adversely to Mortgagee, then in every such case Mortgagor and
Mortgagee shall be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Mortgagee shall
continue as if no such proceeding had been taken.
(iii) After each sale, Mortgagee or an officer of any court
empowered to do so shall execute and deliver to the purchaser or
purchasers at such sale a good and sufficient instrument or
instruments granting, conveying, assigning and transferring all
right, title and interest of Mortgagor in and to the property and
rights sold and shall receive the proceeds of said sale or sales and
apply the same as herein provided. Mortgagee is hereby appointed the
true and lawful attorney-in-fact of Mortgagor, which appointment is
irrevocable and shall be deemed to be coupled with an interest, in
Mortgagor's name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the property and rights so
sold, and for that purpose Mortgagee may execute all necessary
instruments of conveyance, assignment, transfer and delivery, and
may substitute one or more persons with like power, Mortgagor hereby
ratifying and confirming all that said attorney or such substitute
or substitutes shall lawfully do by virtue thereof. Nevertheless,
Mortgagor, if requested by Mortgagee, shall ratify and confirm any
such sale or sales by executing and delivering to Mortgagee or such
purchaser or purchasers all such instruments as may be advisable, in
Mortgagee's judgment, for the purposes as may be designated in such
request.
(iv) Any and all statements of fact or other recitals made in
any of the instruments referred to in subsection (c) of this Section
given by Mortgagee as to nonpayment of the Secured Obligations, or
as to the occurrence of any default or Event of Default, or as to
Mortgagee having declared all or any of the Secured Obligations to
be due and payable, or as to the request to sell, or as to notice of
time, place and terms of sale and of the property or rights to be
sold having been duly given, or as to any other act or thing having
been duly done by Mortgagor or Mortgagee shall be taken as
conclusive and binding against all persons as to evidence of the
truth of the facts so stated and recited. Mortgagee may appoint or
delegate any one or more persons as agent to perform any act or acts
necessary or incident to any sale so held, including the posting of
notices and the conduct of sale.
(v) The receipt of Mortgagee for the purchase money paid at
any such sale, or the receipt of any other person authorized to
receive the same, shall be sufficient discharge therefor to any
purchaser of any property or rights sold as aforesaid, and no such
purchaser, or its representatives, grantees or assigns, after paying
such purchase price and receiving such receipt, shall be bound to
see to the application of such purchase price or any part thereof
upon or for any trust or purpose of this Mortgage or, in any manner
whatsoever, be answerable for any loss, misapplication or
nonapplication of any such purchase money, or part thereof, or be
bound to inquire as to the authorization, necessity, expediency or
regularity of any such sale.
(vi) Any such sale or sales shall operate to divest all of
the estate, right, title, interest, claim and demand whatsoever,
whether at law or in equity, of Mortgagor in and
to the properties and rights so sold, and shall be a perpetual bar
both at law and in equity against Mortgagor and any and all persons
claiming or who may claim the same, or any part thereof or any
interest therein, by, through or under Mortgagor to the fullest
extent permitted by applicable law.
(vii) Upon any such sale or sales, Mortgagee may bid for and
acquire the Mortgaged Property and, in lieu of paying cash therefor,
may make settlement for the purchase price by crediting against the
Secured Obligations the amount of the bid made therefor, after
deducting therefrom the expenses of the sale, the cost of any
enforcement proceeding hereunder, and any other sums which Mortgagee
is authorized to deduct under the terms hereof, to the extent
necessary to satisfy such bid.
(viii)In the event that Mortgagor, or any person claiming by,
through or under Mortgagor, shall transfer or refuse or fail to
surrender possession of the Mortgaged Property after any sale
thereof, then Mortgagor, or such person, shall be deemed a tenant at
sufferance of the purchaser at such sale, subject to eviction by
means of forcible entry and unlawful detainer proceedings, or
subject to any other right or remedy available hereunder or under
applicable law.
(ix) Upon any such sale, it shall not be necessary for
Mortgagee or any public officer acting under execution or order of
court to have present or constructively in its possession any of the
Mortgaged Property.
(x) In the event a foreclosure hereunder shall be commenced by
Mortgagee, Mortgagee may at any time before the sale of the
Mortgaged Property abandon the sale, and may institute suit for the
collection of the Secured Obligations and for the foreclosure of
this Mortgage, or in the event that Mortgagee should institute a
suit for collection of the Secured Obligations, and for the
foreclosure of this Mortgage, Mortgagee may at any time before the
entry of final judgment in said suit dismiss the same and require
Mortgagee to sell the Mortgaged Property in accordance with the
provisions of this Mortgage.
SECTION 6.04. Expenses. In any proceeding, judicial or otherwise, to
foreclose this Mortgage or enforce any other remedy of Mortgagee under the Loan
Documents, there shall be allowed and included as an addition to and a part of
the Secured Obligations in the decree for sale or other judgment or decree all
expenditures and expenses which may be paid or incurred in connection with the
exercise by Mortgagee of any of its rights and remedies provided or referred to
in Section 6.02, or any comparable provision of any other Loan Document,
together with interest thereon at the rate and as provided in the Credit
Agreement, and the same shall be part of the Secured Obligations and shall be
secured by this Mortgage.
SECTION 6.05. Application of Proceeds. The purchase money, proceeds
or avails of any sale referred to in Section 6.02, together with any other sums
which may be held by Mortgagee hereunder, whether under the provisions of this
Article VI or otherwise, shall, except as herein expressly provided to the
contrary, be applied as follows:
FIRST: To the payment of the costs and expenses of any such sale,
including compensation to Mortgagee, their agents and counsel, and of any
judicial proceeding wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Mortgagee hereunder, together
with interest thereon as provided herein, and all Impositions and other
charges, except any Impositions or other charges subject to which the
Mortgaged Property shall have been sold.
SECOND: To the payment in full of the monetary Secured Obligations
(including principal, interest, premium and fees) in such order as
Mortgagee may elect.
THIRD: To the payment of any other sums secured hereunder or required to
be paid by Mortgagor pursuant to any provision of the Loan Documents.
FOURTH: To the extent permitted by applicable law, to be set aside by
Mortgagee as adequate security in its judgment for the payment of sums
which would have been paid by application under clauses FIRST through THIRD
above to Mortgagee, arising out of an obligation or liability with respect
to which Mortgagor has agreed to indemnify Mortgagee, but which sums are
not yet due and payable or liquidated.
FIFTH: To the payment of any withholding tax requirements of the Foreign
Investment in Real Property Tax Act of 1980, as amended.
SIXTH: To the payment of the surplus, if any, to whomsoever may be
lawfully entitled to receive the same.
SECTION 6.06. Additional Provisions as to Remedies. (a) No delay or
omission by Mortgagee to exercise any right or remedy hereunder upon any default
or Event of Default shall impair such exercise, or be construed to be a waiver
of any such default or Event of Default.
(b) The failure, refusal or waiver (by consent, waiver or otherwise)
of Mortgagee to assert any right or remedy hereunder upon any default or Event
of Default or other occurrence shall not be construed as waiving such right or
remedy upon any other or subsequent default or Event of Default or other
occurrence.
(c) Mortgagee shall have no obligation to pursue any rights or
remedies it may have under any other agreement prior to pursuing its rights or
remedies hereunder or under the other Loan Documents.
(d) Acceptance of any payment after the occurrence of any default or
Event of Default shall not be deemed a waiver or a cure of such default or Event
of Default, and acceptance of any payment less than any amount then due shall be
deemed an acceptance on account only.
(e) In the event that Mortgagee shall have proceeded to enforce any
right or remedy hereunder by foreclosure, sale, entry or otherwise, and such
proceeding shall be discontinued, abandoned or determined adversely for any
reason, then Mortgagor and Mortgagee shall be restored to their former positions
and rights hereunder with respect to the Mortgaged Property, subject to the lien
hereof.
(f) Each right of Mortgagee provided for in this Mortgage shall be
cumulative and shall be in addition to every other right provided for in this
Mortgage or now or hereafter existing at law or in equity, by statute or
otherwise, and the exercise by Mortgagee of any one or more of such rights shall
not preclude the simultaneous or later exercise by Mortgagee of any other such
right.
SECTION 6.07. Waiver of Rights and Defenses. To the full extent
Mortgagor may lawfully do so, Mortgagor agrees with Mortgagee as follows:
(i) Mortgagor will not, at any time, insist on, plead, claim or
take the benefit or advantage of any statute or rule of law now or hereafter in
force providing for any appraisement, valuation, stay, extension, moratorium,
redemption or reinstatement, or of any statute of limitations, and Mortgagor,
for itself and its heirs, devisees, representatives, successors and assigns, and
for any and all Persons ever claiming an interest in the Mortgaged Property
(other than Mortgagee), hereby, to the extent permitted by applicable law,
waives and releases all rights of redemption, reinstatement, valuation,
appraisement, and notice of intention to mature or declare due the whole of the
Secured Obligations and all rights to a marshaling of the assets of Mortgagor,
including the Mortgaged Property, or to a sale in inverse order of alienation,
in the event of foreclosure of the liens and security interests created
hereunder.
(ii) Mortgagor shall not have or assert any right under any
statute or rule of law pertaining to any of the matters set forth in subsection
(a) of this Section, to the administration of estates of decedents or to any
other matters whatsoever to defeat, reduce or affect any of the rights or
remedies of Mortgagee hereunder, including the rights of Mortgagee hereunder to
a sale of the Mortgaged Property for the collection of the Secured Obligations
without any prior or different resort for collection, or to the payment of the
Secured Obligations out of the proceeds of sale of the Mortgaged Property in
preference to any other Person.
(iii) If any statute or rule of law referred to in this
Section 6.07 and now in force, of which Mortgagor or any of its representatives,
successors or assigns and such other Persons claiming any interest in the
Property might take advantage despite this Section 6.07, shall hereafter be
repealed or cease to be in force, such statute or rule of law shall not
thereafter be deemed to preclude the application of this Section 6.07.
(iv) Mortgagor shall not be relieved of its obligation to pay
the Secured Obligations at the time and in the manner provided in the Loan
Documents, nor shall the lien or priority of this Mortgage or any other Loan
Document be impaired by any of the following actions, non-actions or indulgences
by Mortgagee, each of which actions, non-actions or indulgences Mortgagee may,
in its discretion, take or refrain from taking:
(i) any failure or refusal by Mortgagee to comply with any
request by Mortgagor (A) to consent to any action by Mortgagor or (B) to
take any action to foreclose this Mortgage or otherwise enforce any of
the provisions of the Loan Documents;
(ii) any release, regardless of consideration,of the whole or
any part of the Property or any other security for the Secured
Obligations, or any Person liable for payment of the Secured Obligations;
(iii) any waiver by Mortgagee of compliance by Mortgagor with
any provision of the Loan Documents, or consent by Mortgagee to the
performance by Mortgagor of any action which would otherwise be
prohibited thereunder, or to the failure by Mortgagor to take any action
which would otherwise be required thereunder; and
(iv) any agreement or stipulation between Mortgagee and
Mortgagor, or, with or without Mortgagor's consent, between Mortgagee and
any subsequent owner or owners of the Mortgaged Property or any other
security for the Secured Obligations, renewing, extending or modifying
the time of payment or the terms of the Loan Documents (including a
modification of any interest rate), and in any such event Mortgagor shall
continue to be obligated to pay the Secured Obligations at the time and
in the manner provided in the Loan Documents, as so renewed, extended or
modified, unless expressly released and discharged by Mortgagee.
(v) Regardless of consideration, and without the necessity for
any notice to or consent by the holder of any subordinate lien, encumbrance,
right, title or interest in or to the Property, Mortgagee may release any Person
at any time liable for the payment of the Secured Obligations or any portion
thereof or any part of the security held for the Secured Obligations and may
extend the time of payment or otherwise modify the terms of the Loan Documents,
including a modification of the interest rates payable on the principal balance
of the Notes without in any manner impairing or affecting this
Mortgage or the lien thereof or the priority of this Mortgage, as so extended
and modified, as security for the Secured Obligations over any such subordinate
lien, encumbrance, right, title or interest. Mortgagee may resort for the
payment of the Secured Obligations to any other security held by Mortgagee in
such order and manner as Mortgagee, in its discretion, may elect. Mortgagee may
take or cause to be taken action to recover the Secured Obligations, or any
portion thereof, or to enforce any provision of the Loan Documents without
prejudice to the right of Mortgagee thereafter to foreclose or cause to be
foreclosed this Mortgage. Mortgagee shall not be limited exclusively to the
rights and remedies herein stated but shall be entitled to every additional
right and remedy now or hereafter afforded by law or equity. The rights of
Mortgagee under this Mortgage shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Mortgagee
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision.
(vi) Mortgagor hereby waives any defense to the recovery by
Mortgagee hereunder against Mortgagor or the Mortgaged Property of any
deficiency after a nonjudicial sale. Without limiting the foregoing, Mortgagor
waives any defense arising out of any such nonjudicial sale even though such
sale operates to impair or extinguish any right of reimbursement or subrogation
or any other right or remedy of Mortgagor against Borrower or any subsidiary of
Borrower or against any collateral security.
ARTICLE VII.
RELEASE OF LIEN
SECTION 7.01. Release of Lien. If all of the Secured Obligations
shall be fully satisfied, paid and performed, then and in that event only all
rights and obligations hereunder shall terminate. In such event Mortgagee shall,
at the request of Mortgagor, deliver to Mortgagor, in recordable form, all such
documents as shall be necessary to release the Mortgaged Property from the
liens, security interests, conveyances and assignments created or evidenced
hereby.
ARTICLE VIII.
ADDITIONAL PROVISIONS
SECTION 8.01. Provisions as to Payments, Advances. (a) To the extent
that any part of the Secured Obligations is used to pay indebtedness secured by
any Permitted Encumbrance or other outstanding lien, security interest, charge
or prior encumbrance against the Mortgaged Property or to pay in whole or in
part the purchase price therefor, Mortgagee shall be subrogated to any and all
rights, security interests and liens held by any owner or holder of the same,
whether or not the same are released. Mortgagor agrees that, in consideration of
such payment by Mortgagee, effective upon such payment Mortgagor shall and
hereby does waive and release all demands, defenses and causes of action for
offsets and payments with respect to the same.
SECTION 8.02. Separability. If all or any portion of any provision
of this Mortgage or any other Loan Documents shall be held to be invalid,
illegal or unenforceable in any respect or in any jurisdiction, then such
invalidity, illegality or unenforceability shall not affect any other provision
hereof or thereof, and such provision shall be limited and construed in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
thereof were not contained herein or therein.
SECTION 8.03. Notices. (a) Any notice, demand, consent, approval,
direction, agreement or other communication (any "NOTICE") required or permitted
hereunder shall be in writing and
shall be validly given if delivered in accordance with Section 9.02 of the
Credit Agreement to the parties hereto at the addresses set forth above.
SECTION 8.04. In the event that ownership of the Mortgaged Property
becomes vested in a person other than Mortgagor, Mortgagee may, without notice
to Mortgagor, deal with such successor or successors in interest with reference
to this Mortgage or the Secured Obligations in the same manner as with
Mortgagor, without in any way vitiating or discharging Mortgagor's liability
hereunder or for the payment of the Secured Obligations or being deemed a
consent to such vesting.
SECTION 8.05. Continuation of Lease. (a) Upon the foreclosure of the
lien created hereby on the Mortgaged Property, as herein provided, any leases
then existing shall not be destroyed or terminated as a result of such
foreclosure unless Mortgagee or any purchaser at a foreclosure sale shall so
elect by notice to the lessee in question.
(b) If both the lessor's and the lessee's interest under any lease
which constitutes a part of the Premises shall at any time become vested in any
one person, this Mortgage and the lien and security interest created hereby
shall not be destroyed or terminated by the application of the doctrine of
merger and, in such event, Mortgagee shall continue to have and enjoy all of the
rights and privileges of Mortgagee hereunder as to each separate estate.
(c) [In the event that Mortgagor acquires the fee or any other
interest in the Leased Land, such interest shall, immediately upon such
acquisition, become subject to the lien of this Mortgage as fully and
completely, and with the same effect, as though now owned by Mortgagor and
specifically described herein, without need for the delivery and/or recording of
a supplement to this Mortgage or any other instrument.]
SECTION 8.06. Applicable Law. This Mortgage shall be governed by,
and construed in accordance with, the internal law of the State in which the
Mortgaged Property is located without regard to principles of conflicts of laws,
except that the internal laws of the State of New York (without regard to
principles of conflicts of laws) shall govern (i) those terms and conditions
contained in the Credit Agreement which are incorporated by reference herein and
(ii) the resolution of issues arising under the Credit Agreement to the extent
that such resolution is necessary to the interpretation of this Mortgage.
SECTION 8.07. Sole Discretion of Mortgagee. (a) Whenever Mortgagee's
judgment, consent or approval is required hereunder for any matter, or either
shall have an option or election hereunder, such judgment, the decision whether
or not to consent to or approve the same or the exercise of such option or
election shall be in the sole discretion of Mortgagee.
(b) Notwithstanding anything contained herein to the contrary, in
the event that Mortgagee fails or refuses to grant consent or approval when
required hereunder for any matter, the parties agree that the remedy of specific
performance shall be the sole remedy of Mortgagor with respect to such actions
and Mortgagor hereby waives all claims for damages with respect thereto.
SECTION 8.08. Provisions as to Covenants and Agreements. All of
Mortgagor's covenants and agreements hereunder shall run with the land and time
is of the essence with respect thereto.
SECTION 8.09. Matters to be in Writing. This Mortgage cannot be
altered, amended, modified, terminated, waived, released or discharged except in
a writing signed by the party against whom enforcement is sought.
SECTION 8.10. Submission to Jurisdiction. Without limiting the right
of Mortgagee to bring any action or proceeding against the undersigned or its
property arising out of or relating to the Secured Obligations (an "ACTION") in
the courts of other jurisdictions, Mortgagor hereby irrevocably submits to the
jurisdiction of the state court or Federal court in each jurisdiction in which
the Mortgaged Property is located, and Mortgagor hereby irrevocably agrees that
any Action may be heard and determined in such state or federal court. Mortgagor
hereby irrevocably waives, to the fullest extent that it may effectively do so,
the defense of an inconvenient forum to the maintenance of any Action in the
jurisdiction. Mortgagor hereby irrevocably agrees that the summons and complaint
or any other process in any Action in any jurisdiction may be served by mailing
to any of the addresses set forth herein or by hand delivery to a person of
suitable age and discretion at any such address. Such service will be complete
on the date such process is so mailed or delivered.
SECTION 8.11. Construction of Provisions. The following rules of
construction shall be applicable for all purposes of this Mortgage and all
documents or instruments supplemental hereto, unless the context otherwise
requires:
(i) All references herein to numbered Articles or Sections
or to lettered Exhibits are references to the Articles and Sections
hereof and the Exhibits annexed to this Mortgage, unless expressly
otherwise designated in context. All Article, Section and Exhibit
captions herein are used for reference only and in no way limit or
describe the scope or intent of, or in any way affect, this
Mortgage.
(ii) The terms "include", "including" and similar terms shall
be construed as if followed by the phrase "without being limited
to".
(iii) The terms "Land", ["Leased Land"], "Leasehold Estate",
"Improvements", "Equipment", "Mortgaged Property" and "Premises"
shall be construed as if followed by the phrase "or any part
thereof".
(iv) The term "Secured Obligations" shall be construed as if
followed by the phrase "or any other sums secured hereby, or any
part thereof".
(v) Words of masculine, feminine or neuter gender shall mean
and include the correlative words of the other genders, and words
importing the singular number shall mean and include the plural
number, and VICE VERSA.
(vi) The term "person" shall include natural persons, firms,
partnerships, corporations and any other public and private legal
entities.
(vii) The term "provisions", when used with respect hereto or
to any other document or instrument, shall be construed as if
preceded by the phrase "terms, covenants, agreements, requirements,
conditions and/or".
(viii)The cover page of and all recitals set forth in, and
all Exhibits to, this Mortgage are hereby incorporated in this
Mortgage.
(ix) All obligations of Mortgagor hereunder shall be performed
and satisfied by or on behalf of Mortgagor at Mortgagor's sole cost
and expense.
(x) The term "lease" shall mean "tenancy, subtenancy, lease or
sublease", the term "lessor" shall mean "landlord, sublandlord,
lessor and sublessor" and the term "lessee" shall mean "tenant,
subtenant, lessee and sublessee".
(xi) No inference in favor of or against any party shall be
drawn from the fact that such party has drafted any portion hereof.
SECTION 8.12. Successors and Assigns. The provisions hereof shall be
binding upon Mortgagor and the heirs, devisees, representatives, successors and
permitted assigns of Mortgagor, including successors in interest of Mortgagor in
and to all or any part of the Mortgaged Property, and shall inure to the benefit
of Mortgagee, the holders of the Secured Obligations and their respective heirs,
successors, legal representatives, substitutes and assigns. Where two or more
persons have executed this Mortgage, the obligations of such persons shall be
joint and several.
SECTION 8.13. Counterparts. This Mortgage may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 8.14. Agency. Mortgagee may deal with the Mortgaged Property
and may issue any release to be given hereunder pursuant to Section 9.12 of the
Credit Agreement or grant any consent or approval or take any other action
required or permitted hereunder, without reference to or the approval of the
holders of the Secured Obligations and any third party (including any title
insurance company issuing a title insurance policy, or a commitment to issue a
title insurance policy, in connection with the Mortgaged Property) may
conclusively rely on the due authority of Mortgagee to do any or all of the
foregoing.
SECTION 8.15. The Security Agreement and other Loan Documents. In
the event that a valid and enforceable security interest has been created in any
of the Mortgaged Property under the terms of the Security Agreement (as defined
in the Credit Agreement) and the terms of the Security Agreement are
inconsistent with the terms of this Mortgage, then with respect to such
Mortgaged Property, the terms of the Security Agreement shall be controlling in
the case of Equipment and proceeds of insurance policies and the terms of this
Mortgage shall be controlling in all other cases. With respect to any other Loan
Document, in the event of a conflict between the provisions hereof and the
provisions of such other Loan Document as they relate to the Mortgaged Property,
the provisions of this Mortgage shall control.
SECTION 8.16. No Merger. The assignments by Mortgagor in favor of
Mortgagee herein contained and the obligations of Mortgagor hereunder to (i)
maintain the insurance required to be maintained by Mortgagor hereunder and to
pay all premiums in respect thereof, (ii) to pay all Impositions, (iii)
reimburse Mortgagee for all sums expended by Mortgagee pursuant to this Mortgage
to protect the lien of this Mortgage and to prevent waste to the Mortgaged
Property and (iv) to pay interest at the Default Rate on the aforementioned sums
from the date due until paid in full shall not be merged into any judgment of
foreclosure and shall survive any such judgment.
SECTION 8.17. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE DO EACH
HEREBY KNOWINGLY, VOLUNTARILY, UNCONDITIONALLY, IRREVOCABLY AND INTENTIONALLY
FOREVER WAIVE THE RIGHT TO A TRIAL BY JURY IN EVERY JURISDICTION IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY MORTGAGOR OR MORTGAGEE AGAINST THE OTHER
OR THEIR RESPECTIVE SUCCESSOR OR ASSIGNS IN RESPECT OF ANY MATTER ARISING OUT
OF, UNDER OR CONNECTED WITH (INCLUDING, WITHOUT LIMITATION, ANY ACTION TO
RESCIND OR CANCEL THIS MORTGAGE OR THE OBLIGATIONS SECURED HEREBY, AND ANY
CLAIMS ASSERTING THAT THE LOAN DOCUMENTS OR THE LOAN SECURED HEREBY WAS
FRAUDULENTLY
INDUCED OR OTHERWISE VOID OR VOIDABLE) IN ANY MANNER WHATSOEVER THIS MORTGAGE,
THE MORTGAGED PROPERTY, OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PERSON OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THE
LOAN DOCUMENTS. THIS WAIVER OF THE RIGHT TO A JURY TRIAL IS A MATERIAL
INDUCEMENT FOR THE MORTGAGEE TO ADVANCE THE SUMS AND TO MAKE THE LOAN SECURED
HEREBY.
SECTION 8.18. WAIVER OF MORTGAGOR'S RIGHTS. BY EXECUTION OF THIS
MORTGAGE, MORTGAGOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF MORTGAGEE TO
ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE LOAN DOCUMENTS AND ANY OTHER
INDEBTEDNESS AND THE POWER OF ATTORNEY GIVEN HEREIN TO MORTGAGEE TO SELL THE
PREMISES BY NONJUDICIAL FORECLOSURE UPON DEFAULT BY MORTGAGOR WITHOUT ANY
JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS IS
SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS MORTGAGE; (B)
WAIVES ANY AND ALL RIGHTS WHICH MORTGAGOR MAY HAVE UNDER THE CONSTITUTION OF THE
UNITED STATES (INCLUDING, WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH
AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE CONSTITUTIONS OF THE SEVERAL
STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, (1) TO NOTICE AND TO JUDICIAL
HEARING PRIOR TO THE EXERCISE BY MORTGAGEE OF ANY RIGHT OR REMEDY HEREIN
PROVIDED TO MORTGAGEE, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED
TO BE GIVEN UNDER THE PROVISIONS OF THIS MORTGAGE AND (2) CONCERNING THE
APPLICATION, RIGHTS OR BENEFITS OF ANY STATUTE OF LIMITATION OR ANY MORATORIUM,
REINSTATEMENT, MARSHALING, FORBEARANCE, APPRAISEMENT, VALUATION, STAY,
EXTENSION, HOMESTEAD, EXEMPTION OR REDEMPTION LAWS; AND (C) ACKNOWLEDGES THAT
ALL WAIVERS OF THE AFORESAID RIGHTS OF MORTGAGOR HAVE BEEN MADE KNOWINGLY,
INTENTIONALLY AND WILLINGLY BY MORTGAGOR AS PART OF A BARGAINED FOR LOAN
TRANSACTION AND THAT THIS MORTGAGE IS VALID AND ENFORCEABLE BY MORTGAGEE AGAINST
MORTGAGOR IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.
SECTION 8.19. Cross-Collateralization. Mortgagor acknowledges that
the Secured Obligations (in whole or in part) are secured by, among other
things, this Mortgage together with additional mortgages, deeds of trust or
similar security instruments (together with their respective documents securing
or evidencing the Secured Obligations, the "ADDITIONAL MORTGAGES") and
encumbering the additional properties (the "ADDITIONAL PROPERTIES"). Upon the
occurrence and continuance of an Event of Default, or as otherwise provided in
the Loan Documents, Mortgagee shall have the right to institute a proceeding or
proceedings for the total or partial foreclosure of this Mortgage and any or all
of the Additional Mortgages whether by court action, power of sale or otherwise,
under any applicable provision of law, for all of the Secured Obligations or the
portion of the Secured Obligations subject to the respective Additional
Mortgages, as the case may be, and the lien and the security interest created by
the Additional Mortgages shall continue in full force and effect without loss of
priority as a lien and security instrument securing the payment of that portion
of the Secured Obligations then due and payable but still outstanding. Mortgagor
acknowledges and agrees that the Mortgaged Property and the Additional
Properties are located in one or more States and counties, and therefore
Mortgagee shall be permitted, to enforce payment of the Secured Obligations and
the performance of any term, covenant or condition of the Guaranties, this
Mortgage or the
Additional Mortgages and exercise any and all rights and remedies under the Loan
Documents, this Mortgage or the Additional Mortgages, or as provided by law or
at equity, by one or more proceedings, whether contemporaneous, consecutive or
both, to be determined by Mortgagee, in its sole discretion, in any one or more
of the States or counties in which the Mortgaged Property or any of the
Additional Properties is located. Neither the acceptance of this Mortgage, the
Loan Documents or the Additional Mortgages nor the enforcement thereof in any
one State or county, whether by court action, foreclosure, power of sale or
otherwise, shall prejudice or in any way limit or preclude enforcement by court
action, foreclosure, power of sale or otherwise, of this Mortgage, the Loan
Documents or any Additional Mortgages through one or more additional proceedings
in that State or county or in any other State or county.
ARTICLE IX.
FIXTURE FILING
SECTION 9.01. Fixture Filing. A portion of the Mortgaged Property is
or is to become fixtures upon the Premises. To the extent permitted by
applicable law, Mortgagor covenants and agrees that the filing of this Mortgage
in the real estate records of the county in which the Mortgaged Property is
located shall also operate from the time of filing as a fixture filing with
respect to all goods constituting part of the Mortgaged Property which are or
are to become fixtures related to the real estate described herein. For such
purpose, the following information is set forth:
(a) Name and Address of Debtor:
(b) Name and Address of Secured Party:
(c) This document covers goods which are or are to become fixtures.
(d) The name of the record owner is shown on Exhibit A-2 attached
hereto and made a part hereof.
IN WITNESS WHEREOF, the undersigned has executed this Mortgage
the day first set forth above.
Signed, sealed and delivered [MORTGAGOR ]
in the presence of the
following witnesses:
By:
----------------------------
Name:
Name: Title:
Address:
Name:
Address:
By:
----------------------------
Name:
Name Title:
Address:
[Corporate Seal]
Name:
Address: [Address]
[Acknowledgments]
This instrument was prepared in
consultation with counsel
admitted to practice in the
state in which the property is
located by:
--------------------------------
Shearman & Sterling
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT A-1
DESCRIPTION OF LAND
EXHIBIT A-2
DESCRIPTION OF [LEASED LAND]
EXHIBIT B
PERMITTED ENCUMBRANCES
1. The lien of this Mortgage.
2. The leasehold interest of the tenants under the leases described on
Exhibit B-1 attached hereto and made a part hereof.
[other Permitted Encumbrances]
EXHIBIT B-1
LEASES
EXHIBIT C
LIST OF LENDERS AS OF THE DATE OF THIS MORTGAGE
Name Address
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