[EXECUTION COPY]
U.S. $345,000,000
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT,
dated as of May 26, 2000,
(amending and restating the Amended and Restated
Credit Agreement, dated as of July 20, 1998),
among
FORMICA CORPORATION
FORMICA LIMITED
FORMICA HOLDCO (UK) LIMITED
FORMICA CANADA, INC.
FORMICA ▇.▇.
▇▇▇▇▇▇▇ ESPANOLA S.A.,
as the Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
BANKERS TRUST COMPANY,
as the Administrative Agent for the Lenders,
and
CREDIT SUISSE FIRST BOSTON,
as the Documentation Agent for the Lenders.
-----------------------------------------
ARRANGED BY:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.......................................................4
1.2. Use of Defined Terms...............................................53
1.3. Cross-References...................................................53
1.4. Accounting and Financial Determinations............................53
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,NOTES AND LETTERS OF CREDIT
2.1. Commitments........................................................54
2.1.1. Term Loans.........................................................55
2.1.2. Revolving Loan Commitments and Swing Line Loan Commitment..........56
2.1.3. Letter of Credit Commitment........................................59
2.1.4. Lenders Not Permitted or Required to Make the Loans................60
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit........61
2.2. Optional Reduction of the Revolving Loan Commitment Amounts........61
2.3. Borrowing Procedures and Funding Maintenance.......................62
2.3.1. Term Loans and Revolving Loans.....................................62
2.3.2. Swing Line Loans...................................................62
2.4. Uncommitted Revolving Loans........................................64
2.4.1. Uncommitted Revolving Loan Borrowing Request.......................64
2.4.2. Invitation for Uncommitted Interest Quotes.........................65
2.4.3. Submission and Contents of Uncommitted Interest Quotes.............65
2.4.4. Uncommitted Revolving Loan Acceptance..............................67
2.5. Committed Foreign Currency Revolving Loans; Spanish Term Loans.....68
2.6. Continuation and Conversion Elections..............................70
2.6.1. Converting Canadian Prime Rate Loans to, or Continuing Canadian BAs
as, Canadian BAs...................................................71
2.6.2. Converting Canadian BAs to Canadian Prime Rate Loans...............71
2.7. Funding............................................................71
2.8. Issuance Procedures................................................72
2.8.1. Other Lenders' Participation.......................................73
2.8.2. Disbursements; Conversion to Revolving Loans.......................73
2.8.3. Reimbursement......................................................74
2.8.4. Deemed Disbursements...............................................74
2.8.5. Nature of Reimbursement Obligations................................75
2.8.6. Deemed Issuance of Existing Letters of Credit......................76
2.9. Register; Notes....................................................76
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2.10. European Monetary Union............................................77
2.11. Canadian BAs.......................................................78
2.11.1. Funding of Canadian BAs............................................78
2.11.2. Presigned Draft Forms..............................................78
2.11.3. Special Provisions Relating to Acceptance Notes....................79
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application............................80
3.1.1. Repayments and Prepayments.........................................80
3.1.2. Application........................................................86
3.2. Interest Provisions................................................87
3.2.1. Rates..............................................................87
3.2.2. Post-Maturity Rates................................................87
3.2.3. Payment Dates......................................................88
3.3. Fees...............................................................88
3.3.1. Commitment Fee.....................................................88
3.3.2. Administrative Agent Fee...........................................89
3.3.3. Letter of Credit Fee...............................................89
3.3.4. PSM Fee Letter.....................................................89
ARTICLE IV
CERTAIN LIBO RATE, CANADIAN BA AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.........................................90
4.2. Deposits Unavailable; Circumstances Making Canadian BAs
Unavailable........................................................90
4.3. Increased Fixed Rate Loan Costs, etc...............................91
4.4. Funding Losses.....................................................92
4.5. Increased Capital Costs............................................92
4.6. Taxes..............................................................93
4.7. Payments, Computations, etc........................................95
4.8. Sharing of Payments................................................96
4.9. Setoff.............................................................96
4.10. Mitigation.........................................................96
4.11. Replacement of Lenders.............................................97
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. [INTENTIONALLY OMITTED]............................................97
5.2. All Credit Extensions..............................................97
5.2.1. Compliance with Warranties, No Default, etc........................98
5.2.2. Credit Extension Request...........................................98
5.3. First Borrowing by Each Foreign Subsidiary.........................98
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc..................................................99
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6.2. Due Authorization, Non-Contravention, etc..........................99
6.3. Government Approval, Regulation, etc..............................100
6.4. Validity, etc.....................................................100
6.5. Financial Information.............................................100
6.6. No Material Adverse Change........................................100
6.7. Litigation, Labor Controversies, etc..............................100
6.8. Subsidiaries......................................................101
6.9. Ownership of Properties...........................................101
6.10. Taxes.............................................................101
6.11. Pension and Welfare Plans.........................................101
6.12. Environmental Warranties..........................................102
6.13. Regulations U and X...............................................103
6.14. Accuracy of Information...........................................103
6.15. Solvency..........................................................103
6.16. Status of Obligations as Senior Indebtedness, etc.................103
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants.............................................104
7.1.1. Financial Information, Reports, Notices, etc......................104
7.1.2. Compliance with Laws, etc.........................................106
7.1.3. Maintenance of Properties.........................................106
7.1.4. Insurance.........................................................107
7.1.5. Books and Records.................................................107
7.1.6. Environmental Covenant............................................107
7.1.7. Future Subsidiaries...............................................108
7.1.8. Future Leased Property and Future Acquisitions of Real Property;
Future Acquisition of Other Property..............................109
7.1.9. Use of Proceeds, etc..............................................110
7.1.10. Hedging Obligations...............................................110
7.2. Negative Covenants................................................110
7.2.1. Business Activities...............................................111
7.2.2. Indebtedness......................................................111
7.2.3. Liens.............................................................113
7.2.4. Financial Covenants...............................................115
7.2.5. Investments.......................................................117
7.2.6. Restricted Payments, etc..........................................119
7.2.7. Capital Expenditures, etc.........................................121
7.2.8. Consolidation, Merger, etc........................................122
7.2.9. Asset Dispositions, etc...........................................123
7.2.10. Modification of Certain Agreements................................124
7.2.11. Transactions with Affiliates......................................124
7.2.12. Negative Pledges, Restrictive Agreements, etc.....................125
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7.2.13. Stock of Subsidiaries.............................................125
7.2.14. Sale and Leaseback................................................125
7.2.15. Designation of Senior Indebtedness................................126
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default......................................126
8.1.1. Non-Payment of Obligations........................................126
8.1.2. Breach of Warranty................................................126
8.1.3. Non-Performance of Certain Covenants and Obligations..............127
8.1.4. Non-Performance of Other Covenants and Obligations................127
8.1.5. Default on Other Indebtedness.....................................127
8.1.6. Judgments.........................................................127
8.1.7. Pension Plans.....................................................127
8.1.8. Change in Control.................................................127
8.1.9. Bankruptcy, Insolvency, etc.......................................127
8.1.10. Impairment of Security, etc.......................................128
8.1.11. Senior Subordinated Debt..........................................129
8.2. Action if Bankruptcy, etc.........................................129
8.3. Action if Other Event of Default..................................129
ARTICLE IX
THE AGENTS
9.1. Actions...........................................................129
9.2. Funding Reliance, etc.............................................130
9.3. Exculpation.......................................................130
9.4. Successor.........................................................131
9.5. Credit Extensions by Each Agent and Issuer........................131
9.6. Credit Decisions..................................................132
9.7. Copies, etc.......................................................132
9.8. The Syndication Agent, the Administrative Agent and the
Documentation Agent...............................................132
ARTICLE X
COMPANY GUARANTY
10.1. Guaranty..........................................................132
10.2. Acceleration of Obligations Hereunder.............................133
10.3. Obligations Hereunder Absolute, etc...............................133
10.4. Reinstatement, etc................................................134
10.5. Waiver, etc.......................................................134
10.6. Postponement of Subrogation.......................................135
10.7. Successors, Transferees and Assigns; Transfers of Notes, etc......135
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc..........................................135
11.2. Notices...........................................................137
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11.3. Payment of Costs and Expenses.....................................137
11.4. Indemnification...................................................138
11.5. Survival..........................................................139
11.6. Severability......................................................140
11.7. Headings..........................................................140
11.8. Execution in Counterparts.........................................140
11.9. Governing Law; Entire Agreement...................................140
11.10. Successors and Assigns............................................140
11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes...................................................140
11.11.1. Assignments.......................................................141
11.11.2. Participations....................................................143
11.12. Other Transactions................................................144
11.13. Forum Selection and Consent to Jurisdiction.......................144
11.14. Waiver of Jury Trial..............................................145
11.15. Judgment Currency.................................................145
11.16. Confidentiality...................................................146
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SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
SCHEDULE III - Illustrations Relating to Section 2.5(d)
SCHEDULE IV - Additional Cost Determination
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT A-3 - Form of Swing Line Note
EXHIBIT A-4 - Form of Acceptance Note
EXHIBIT B-1 - Form of Committed Loan Borrowing Request
EXHIBIT B-2 - Form of Uncommitted Revolving Loan Borrowing Request
EXHIBIT B-3 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Amendment Effective Date Certificate
EXHIBIT E-1 - Form of Compliance Certificate
EXHIBIT E-2 - Form of U.S. Dollar Equivalent Certificate
EXHIBIT F - Form of Lender Assignment Agreement
EXHIBIT G-1 - Form of Foreign Currency Revolving Loan Commitment Addendum
EXHIBIT G-2 - Form of Term Loan Commitment Addendum
EXHIBIT G-3 - Form of Uncommitted Revolving Borrowing Addendum
EXHIBIT G-4 - Form of Invitation for Uncommitted Interest Quotes
EXHIBIT G-5 - Form of Uncommitted Interest Quotes
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 26,
2000, is among Formica Corporation, a Delaware corporation (the "Company"),
Formica Limited, a company incorporated under the laws of England and Wales
(the "U.K. Revolver Borrower"), Formica Holdco (UK) Limited, a company
incorporated under the laws of England and Wales (the "U.K. Term Borrower"),
Formica Canada, Inc., a corporation organized and existing under the laws of
Canada (the "Canadian Borrower"), ▇▇▇▇▇▇▇ ▇.▇., a societe anonyme organized and
existing under the laws of the French Republic (the "French Revolver
Borrower"), Formica Espanola S.A., a sociedad anonima organized and existing
under the laws of the Kingdom of Spain (the "Spanish Revolver Borrower") and
the other Foreign Borrowers that may become parties hereto (collectively with
the Company, the U.K. Revolver Borrower, the U.K. Term Borrower, the Canadian
Borrower, the French Revolver Borrower and the Spanish Revolver Borrower, the
"Borrowers"), the various financial institutions as are or may become parties
hereto (including the PSM Lenders (as defined in the Amendment Agreement
referred to below) collectively, the "Lenders"), DLJ Capital Funding, Inc.
("DLJ"), as syndication agent (the "Syndication Agent") for the Lenders,
Bankers Trust Company ("BTCo"), as administrative agent (the "Administrative
Agent") for the Lenders, and Credit Suisse First Boston ("CSFB"), as
documentation agent (the "Documentation Agent") for the Lenders (the
Syndication Agent, the Administrative Agent and the Documentation Agent are
sometimes referred to herein individually as an "Agent" and collectively as the
"Agents").
W I T N E S S E T H:
WHEREAS pursuant to the Credit Agreement, dated as of May 1, 1998 (the
"Original Credit Agreement"), among the Company (as survivor of the merger with
LMS II, Co.), each of the Foreign Borrowers named therein (together with the
Company, the "Original Borrowers"), the various financial institutions party
thereto (the "Original Lenders") and the Agents, the Original Lenders and the
Issuers extended commitments to make credit extensions to the Original
Borrowers on the terms and conditions set forth therein;
WHEREAS pursuant to the Amended and Restated Credit Agreement, dated as of
July 20, 1998 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Existing Credit Agreement"), among the Borrowers, the various
financial institutions party thereto (the "Existing Lenders") and the Agents,
the Existing Lenders and the Issuers amended and restated the Original Credit
Agreement as set forth therein;
WHEREAS, DS Holding, Inc., a Delaware corporation ("DS Holding"), the
various financial institutions as are parties thereto (collectively, the "PSM
Lenders") and DLJ, as the lead arranger, sole book runner, administrative agent
and syndication agent have heretofore entered into a Credit Agreement, dated as
of March 30, 2000 (the "DS Holding Credit Agreement"), pursuant to which Loans
(as defined in the DS Holding Credit Agreement) were made to DS Holding by the
PSM Lenders for the purpose of, inter alia, acquiring 100% of the Capital Stock
of Perstorp Surface Materials AB, a Swedish company, and its Subsidiaries and
commitments were extended by the PSM Lenders to DS Holding for additional Loans
(as defined in the DS Holding Credit Agreement);
WHEREAS, DS Holding is the direct, wholly owned Subsidiary of FM DS
Holding, Inc., a Delaware corporation ("FM DS Holding");
WHEREAS, FM Holdings, Inc., a Delaware corporation ("FMH"), desires to
contribute the Capital Stock of FM DS Holding to the Company (the
"Contribution");
WHEREAS, the Company desires to cause DS Holding to merge with and into FM
DS Holding (the "First Merger"), and thereafter cause the survivor of such
merger to merge with and into the Company, with the Company being the surviving
corporation of such merger (the "Second Merger", and, together with the First
Merger, the "Mergers");
WHEREAS, as a result of the Mergers, the Company will, by operation of
law, become liable for all of the obligations of DS Holding under the DS
Holding Credit Agreement and the other Loan Documents (as defined in the DS
Holding Credit Agreement) relating thereto;
WHEREAS, the Company, the PSM Lenders and DLJ desire to have such
obligations, together with the rights and benefits of the PSM Lenders and DLJ
under the DS Holding Credit Agreement and the related Loan Documents (as
defined in the DS Holding Credit Agreement), incorporated into, and become
subject to the conditions, covenants, events of default and other terms of, the
Existing Credit Agreement, and that the Term-A Loans, Term-B Loans, Term-C
Loans and Term-D Loans under the DS Holding Credit Agreement be combined into a
single tranche of Term Loans under the Existing Credit Agreement (such Term
Loans to be referred to as the "U.S. Term B Loans" under this Agreement);
WHEREAS, the Borrowers have requested that the Existing Credit Agreement
and the DS Holding Credit Agreement be amended and restated in their entirety
as a single agreement to become effective and binding on the Borrowers, the
Lenders (as defined in each of the Existing Credit Agreement and the DS Holding
Credit Agreement), and the Agents (as so defined) pursuant to the terms of the
Amendment Agreement dated as of the date hereof (the "Amendment Agreement") and
this Agreement, and the Required Lenders under the Existing Credit Agreement
and the Required Lenders under the DS Holding Credit Agreement have agreed
(subject to the terms of the Amendment Agreement and this Agreement) to amend
and restate the Existing Credit Agreement and the DS Holding Credit Agreement
in their entirety to read as set forth in this Agreement;
WHEREAS, Laminates Acquisition Co., a Delaware corporation ("Holdings"),
owns all of the issued and outstanding Voting Stock of FMH, and FMH owns all of
the issued and outstanding Capital Stock of the Company;
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WHEREAS, in addition to providing the terms and conditions governing the
Term Loans, this Agreement provides (subject to the terms and conditions
hereof, including Article V) for:
(a) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to
which (i) Borrowings of U.S. Revolving Loans will be made to the
Company and (ii) Borrowings of Foreign Currency Revolving Loans will
be made to the Foreign Revolver Borrowers, in each case from time to
time on and subsequent to the Closing Date but prior to the Revolving
Loan Commitment Termination Date, in a maximum aggregate principal
amount (together with (x) the U.S. Dollar Equivalent of the Foreign
Currency Letter of Credit Outstandings, (y) the U.S. Letter of Credit
Outstandings and (z) all Swing Line Loans) not to exceed, subject to
the terms and conditions hereof, the then existing Total Revolving
Loan Commitment Amount;
(b) a Letter of Credit Commitment pursuant to which the
Issuers will issue (i) U.S. Letters of Credit for the account of the
Company and its Subsidiaries and (ii) Foreign Currency Letters of
Credit for the account of the Foreign Borrowers and their respective
Subsidiaries, in each case from time to time on and subsequent to the
Closing Date but prior to the Revolving Loan Commitment Termination
Date, in a maximum aggregate Stated Amount at any one time outstanding
(with Foreign Currency Letter of Credit Outstandings calculated at the
U.S. Dollar Equivalent thereof) not to exceed, subject to the terms
and conditions hereof, $100,000,000 (provided that the aggregate
outstanding principal amount of (v) all U.S. Revolving Loans, (w) all
Swing Line Loans, (x) the U.S. Dollar Equivalent of all Foreign
Currency Revolving Loans, (y) the U.S. Letter of Credit Outstandings
and (z) the U.S. Dollar Equivalent of the Foreign Currency Letter of
Credit Outstandings shall not, subject to the terms and provisions
hereof, at any time exceed the then existing Total Revolving Loan
Commitment Amount); and
(c) a Swing Line Loan Commitment pursuant to which Borrowings
of Swing Line Loans (which shall be denominated solely in U.S.
Dollars) will be made to the Company from time to time on and
subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date, in a maximum aggregate outstanding
principal amount not to exceed $10,000,000 (provided that the
aggregate outstanding principal amount of all such Swing Line Loans,
together with (w) all U.S. Revolving Loans, (x) the U.S. Dollar
Equivalent of all Foreign Currency Revolving Loans, (y) the U.S.
Letter of Credit Outstandings and (z) the U.S. Dollar Equivalent of
the Foreign Currency Letter of Credit Outstandings shall not, subject
to the terms and provisions hereof, at any time exceed the then
existing Total Revolving Loan Commitment Amount);
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WHEREAS, following the Amendment Effective Date, the Company desires to
obtain a Spanish Term Loan Commitment, and whereas, for the convenience of the
parties hereto, provisions with respect to such Commitment have been included
herein in anticipation that such Commitment may be provided in the future;
NOW, THEREFORE, the Existing Credit Agreement and the DS Holding Credit
Agreement are hereby amended and restated to read in their entirety as a single
agreement, as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Absolute Rate Auction" means a solicitation of Uncommitted Interest
Quotes setting forth Uncommitted Absolute Interest Rates pursuant to Section
2.4.
"Acceptance Note" is defined in clause (b) of Section 2.11.3.
"Acquisition Transactions" means the transactions in which the Equity
Investors, in part indirectly through Holdings, acquired all of the Capital
Stock of FMH and the Purchased Foreign Subsidiaries, certain Subsidiaries of
Holdings merged into FMH and certain of its Subsidiaries and the Capital Stock
of the Purchased Foreign Subsidiaries was contributed, directly or indirectly,
to the Company.
"Additional Cost" means, with respect to any U.K. Loan, for any Interest
Period, the cost as calculated by the Administrative Agent in accordance with
Schedule IV hereto imputed to each applicable Lender of compliance with the
mandatory liquid assets requirements of the Bank of England and/or the
Financial Services Authority during that Interest Period, expressed as a
percentage.
"Additional Loan Commitments" is defined in clause (h) of Section 2.1.2.
"Additional Revolving Loan Commitments" is defined in clause (h) of
Section 2.1.2.
"Additional U.S. Term Loan Commitments" is defined in clause (h) of
Section 2.1.2.
"Additional U.S. Term Loans" means loans denominated in U.S. Dollars
to be made to the Company pursuant to the Additional U.S. Term Loan Commitments
in accordance with clause (h) of Section 2.1.2.
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"Administrative Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Administrative Agent's Fee Letter" means the confidential fee letter
entered into on May 1, 1998 between the Company and the Administrative Agent
with respect to certain fees to be paid hereunder.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors or managing general
partners, or (ii) to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Affirmation and Consent" means the Affirmation and Consent to be executed
and delivered by each Obligor (other than the Borrowers) pursuant to the
Amendment Agreement, in the form of Annex II to the Amendment Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Agents" is defined in the preamble.
"Agreement" means, on any date, the Existing Credit Agreement and the DS
Holding Credit Agreement, as amended and restated by the Amendment Agreement
and this agreement and as from time to time further amended, supplemented,
amended and restated, or otherwise modified.
"Alternate Base Rate" means, for any day and with respect to all Base Rate
Loans, the higher of: (a) 0.50% per annum above the latest Federal Funds Rate;
and (b) the rate of interest in effect for such day as most recently publicly
announced or established by the Administrative Agent in New York, New York, as
its "prime rate." The prime rate is not necessarily intended to be the lowest
rate of interest determined by the Administrative Agent in connection with
extensions of credit. Any change in the prime rate established or announced by
the Administrative Agent shall take effect at the opening of business on the
day of such establishment or announcement.
"Amendment Agreement" is defined in the ninth recital.
"Amendment Effective Date" means the date all conditions set forth in
Article III of the Amendment Agreement are satisfied.
"Amendment Effective Date Certificate" means the certificate delivered by
the Company pursuant to the Amendment Agreement, substantially in the form of
Exhibit D hereto.
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"Annualized" means (i) with respect to the end of the first Fiscal Quarter
of the Company ending after the Original Closing Date, the applicable amount
for such Fiscal Quarter multiplied by four, (ii) with respect to the second
Fiscal Quarter of the Company ending after the Original Closing Date, the
applicable amount for such Fiscal Quarter and the immediately preceding Fiscal
Quarter multiplied by two, and (iii) with respect to the third Fiscal Quarter
of the Company ending after the Original Closing Date, the applicable amount
for such Fiscal Quarter and the immediately preceding two Fiscal Quarters
multiplied by one and one-third.
"Applicable Canadian BA Stamping Fee" means, with respect to Canadian
Loans maintained as Canadian BAs, the applicable percentage set forth under the
column entitled "Applicable Canadian BA Stamping Fee" with respect thereto
within the definition of Applicable Margin set forth below.
"Applicable Commitment Fee" means, (i) for each day from the Original
Closing Date through (but excluding) the date upon which the Compliance
Certificate for the second full Fiscal Quarter ending after the Original
Closing Date is delivered or required to be delivered by the Company to the
Administrative Agent pursuant to clause (c) of Section 7.1.1, a fee which shall
accrue at a rate of 1/2 of 1% per annum, and (ii) for each day thereafter, a
fee which shall accrue at the applicable rate per annum set forth below under
the column entitled "Applicable Commitment Fee", determined by reference to the
applicable Leverage Ratio referred to below:
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
greater than or equal to 4.25:1 0.500%
greater than or equal to 3.75:1 0.375%
and less than 4.25:1
greater than or equal to 3.0:1 0.300%
and less than 3.75:1
less than 3.0:1 0.250%
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The Leverage Ratio used to compute the Applicable Commitment Fee for any
day referred to in clause (ii) above shall be the Leverage Ratio set forth in
the Compliance Certificate most recently delivered by the Company to the
Administrative Agent on or prior to such day pursuant to clause (c) of Section
7.1.1. Changes in the Applicable Commitment Fee resulting from a change in the
Leverage Ratio shall become effective on the first day following delivery by
the Company to the Administrative Agent of a new Compliance Certificate
pursuant to clause (c) of Section 7.1.1. If the Company shall fail to deliver a
Compliance Certificate within the number of days after the end of any Fiscal
Quarter as required pursuant to clause (c) of Section 7.1.1 (without giving
effect to any grace period), the Applicable Commitment Fee from and including
the first day after the date on which such Compliance Certificate was required
to be delivered to but not including the date the Company delivers to the
Administrative Agent a Compliance Certificate shall conclusively equal the
highest Applicable Commitment Fee set forth above. Notwithstanding the
foregoing, the Company may, in its sole discretion, within ten Business Days
following the end of any Fiscal Quarter, deliver to the Administrative Agent a
written estimate (the "Leverage Ratio Estimate") setting forth the Company's
good faith estimate of the Leverage Ratio (based on calculations contained in
an estimated Compliance Certificate) that will be set forth in the next
Compliance Certificate required to be delivered by the Company to the
Administrative Agent pursuant to clause (c) of Section 7.1.1. In the event that
the Leverage Ratio Estimate indicates that there would be a change in the
Applicable Commitment Fee resulting from a change in the Leverage Ratio, such
change will become effective on the first day following delivery of the
Leverage Ratio Estimate. In the event that, once the next Compliance
Certificate is delivered, the Leverage Ratio as set forth in such Compliance
Certificate differs from that calculated in the Leverage Ratio Estimate
delivered for the Fiscal Quarter with respect to which such Compliance
Certificate has been delivered, and such difference results in an Applicable
Commitment Fee which is greater than the Applicable Commitment Fee theretofore
in effect, then (A) such greater Applicable Commitment Fee shall be deemed to
be in effect for all purposes of this Agreement from the first day following
the delivery of the Leverage Ratio Estimate and (B) if any Borrower shall have
theretofore made any payment of Commitment Fees in respect of the period from
the first day following the delivery of the Leverage Ratio Estimate to the
actual date of delivery of the Compliance Certificate, then, on the next
Quarterly Payment Date, such Borrower shall pay as a supplemental payment of
Commitment Fees, an amount which equals the difference between the amount of
Commitment Fees that would otherwise have been paid based on such new Leverage
Ratio and the amount of such Commitment Fees actually so paid.
"Applicable Margin" means at all times during the applicable periods set
forth below,
(a) from the Original Closing Date through (but excluding)
the date upon which the Compliance Certificate for the second full
Fiscal Quarter ending after the Original Closing Date is delivered by
the Company to the Administrative Agent pursuant to clause (c) of
Section 7.1.1 of the Existing Credit Agreement, with respect to the
unpaid principal amount of each (i) Swing Line Loan (which shall be
borrowed and maintained only as a U.S. Dollar denominated Base Rate
Loan) and each Committed Revolving Loan and Term Loan (other than U.S.
Term B Loans and Additional U.S. Term Loans) maintained as a Base Rate
Loan, 1.00% per annum, and (ii) Committed Revolving Loan and Term Loan
(other than U.S. Term B Loans and Additional U.S. Term Loans)
maintained as a LIBO Rate Loan, 2.25% per annum;
-8-
(b) at all times after the date of delivery of the Compliance
Certificate described in clause (a) above through but not including
the Amendment Effective Date, with respect to the unpaid principal
amount of each Swing Line Loan (which shall be borrowed and maintained
only as a U.S. Dollar denominated Base Rate Loan) and each Committed
Revolving Loan and Term Loan (other than U.S. Term B Loans and
Additional U.S. Term Loans), the rate determined by reference to the
applicable Leverage Ratio and at the applicable percentage per annum
set forth below under the column entitled "Applicable Margin for Base
Rate Loans", in the case of Base Rate Loans, or by reference to the
applicable Leverage Ratio and at the applicable percentage per annum
set forth below under the column entitled "Applicable Margin for LIBO
Rate Loans", in the case of LIBO Rate Loans:
Applicable Margin For Committed Revolving Loans,
Swing Line Loans and Term Loans
Applicable Applicable
Margin For Base Margin For LIBO
Leverage Ratio Rate Loans Rate Loans
greater than or equal to 4.25:1 1.00% 2.25%
greater than or equal to 3.75:1 and 0.75% 2.00%
less than 4.25:1
greater than or equal to 3.0:1 and 0.25% 1.50%
less than 3:75:1
less than 3.0:1 0.00% 1.00%;
(c) at all times from and after the Amendment Effective Date,
with respect to the unpaid principal amount of each Swing Line Loan
(which shall be borrowed and maintained only as a U.S. Dollar
denominated Base Rate Loan) and each Committed Revolving Loan and Term
Loan (other than U.S. Term B Loans and Additional U.S. Term Loans),
the rate determined by reference to the applicable Leverage Ratio and
at the applicable percentage per annum set forth below under the
column entitled "Applicable Margin for Base Rate Loans", in the case
of Base Rate Loans, or by reference to the applicable Leverage Ratio
and at the applicable percentage per annum set forth below under the
column entitled "Applicable Margin for LIBO Rate Loans", in the case
of LIBO Rate Loans:
-9-
Applicable Margin For Committed Revolving Loans,
Swing Line Loans and Term Loans
Applicable Applicable
Leverage Ratio Margin For Base Margin For LIBO
Rate Loans Rate Loans
greater than or equal to 4.25:1 1.50% 2.75%
greater than or equal to 3.75:1 and 1.25% 2.50%
and less than 4.25:1
greater than or equal to 3.0:1 and less 0.75% 2.00%
and less than 3.75:1
less than 3.0:1 0.25% 1.50%;
(d) at all times after the date of delivery of the Compliance
Certificate described in clause (a) above through but not including
the Amendment Effective Date, with respect to the unpaid principal
amount of each Canadian Loan, the rate determined by reference to the
applicable Leverage Ratio and at the applicable percentage per annum
set forth below under the column entitled "Applicable Margin for Base
Rate Loans", in the case of Base Rate Loans, or by reference to the
applicable Leverage Ratio and at the applicable percentage per annum
set forth below under the column entitled "Applicable Canadian BA
Stamping Fee", in the case of Canadian BAs:
Applicable Margin For Canadian Loans
Applicable Applicable
Leverage Ratio Margin For Base Canadian BA
Rate Loans Stamping Fee
greater than or equal to 4.25:1 1.00% 2.25%
greater than or equal to 3.75:1 and 0.75% 2.00%
and less than 4.75:1
greater than or equal to 3.0:1 and less 0.25% 1.50%
and less than 4.25:1
less than 3.0:1 0.00% 1.00%.
-10-
(e) at all times from and after the Amendment Effective Date,
with respect to the unpaid principal amount of each Canadian Loan, the
rate determined by reference to the applicable Leverage Ratio and at
the applicable percentage per annum set forth below under the column
entitled "Applicable Margin for Base Rate Loans", in the case of Base
Loans, or by reference to the applicable Leverage Ratio and at the
applicable percentage per annum set forth below under the column
entitled "Applicable Canadian BA Stamping Fee", in the case for
Canadian BAs.
Applicable Margin For Canadian Loans
Applicable Applicable
Leverage Ratio Margin For Base Canadian BA
Rate Loans Stamping Fee
greater than or equal to 4.25:1 1.50% 2.75%
greater than or equal to 3.75:1 and 1.25% 2.50%
and less than 4.25:1
greater than or equal to 3.0:1 and less 0.75% 2.00%
and less than 3.75:1
less than 3.0:1 0.25% 1.50%.
(f) with respect to the unpaid principal amount of each U.S.
Term B Loan maintained as (i) a Base Rate Loan, 2.25% per annum, and
(ii) a LIBO Rate Loan, 3.50% per annum.
-11-
The Leverage Ratio used to compute the Applicable Margin for Swing Line
Loans, Committed Revolving Loans and Term Loans and the Applicable Canadian BA
Stamping Fee for Canadian BAs for any day referred to in clauses (b), (c), (d)
or (e) above shall be the Leverage Ratio set forth in the Compliance
Certificate most recently delivered by the Company to the Administrative Agent
on or prior to such day pursuant to clause (c) of Section 7.1.1 (or clause (c)
of Section 7.1.1 of the Existing Credit Agreement). Changes in the Applicable
Margin for Swing Line Loans, Committed Revolving Loans and Term Loans and the
Applicable Canadian BA Stamping Fee for Canadian BAs resulting from a change in
the Leverage Ratio shall become effective on the first day following delivery
by the Company to the Administrative Agent of a new Compliance Certificate
pursuant to clause (c) of Section 7.1.1. If the Company shall fail to deliver a
Compliance Certificate within the number of days after the end of any Fiscal
Quarter as required pursuant to clause (c) of Section 7.1.1 (without giving
effect to any grace period), the Applicable Margin for Swing Line Loans,
Committed Revolving Loans and Term Loans and the Applicable Canadian BA
Stamping Fee for Canadian BAs from and including the first day after the date
on which such Compliance Certificate was required to be delivered to but not
including the date the Company delivers to the Administrative Agent a
Compliance Certificate shall conclusively equal the highest Applicable Margin
for Swing Line Loans, Committed Revolving Loans and Term Loans (other than U.S.
Term B Loans and Additional U.S. Term Loans) and the Applicable Canadian BA
Stamping Fee for Canadian BAs set forth above. Notwithstanding the foregoing,
the Company may, in its sole discretion, within ten Business Days following the
end of any Fiscal Quarter, deliver to the Administrative Agent a Leverage Ratio
Estimate setting forth the Company's good faith estimate of the Leverage Ratio
(based on calculations set forth in an estimated Compliance Certificate) that
will be set forth in the next Compliance Certificate required to be delivered
by the Company to the Administrative Agent pursuant to clause (c) of Section
7.1.1. In the event that the Leverage Ratio Estimate indicates that there would
be a change in the Applicable Margin and the Applicable Canadian BA Stamping
Fee resulting from a change in the Leverage Ratio, such change will become
effective on the first day following delivery of the Leverage Ratio Estimate.
In the event that, once the next Compliance Certificate is delivered, the
Leverage Ratio as set forth in such Compliance Certificate differs from that
calculated in the Leverage Ratio Estimate delivered for the Fiscal Quarter with
respect to which such Compliance Certificate has been delivered, and such
difference results in an Applicable Margin or Applicable Canadian BA Stamping
Fee, as the case may be, which is greater than the Applicable Margin or
Applicable Canadian BA Stamping Fee theretofore in effect, then (A) such
greater Applicable Margin or Applicable Canadian BA Stamping Fee shall be
deemed to be in effect for all purposes of this Agreement from the first day
following the delivery of the Leverage Ratio Estimate and (B) if any Borrower
shall have theretofore made any payment of interest in respect of Swing Line
Loans, Committed Revolving Loans or Term Loans, or of Letter of Credit Fees
pursuant to the first sentence of Section 3.3.3, in any such case in respect of
the period from the first day following the delivery of the Leverage Ratio
Estimate to the actual date of delivery of such Compliance Certificate, then,
on the next Quarterly Payment Date, such Borrower shall pay as a supplemental
payment of interest and/or Letter of Credit Fees, an amount which equals the
difference between the amount of interest and Letter of Credit Fees that would
otherwise have been paid based on such new Leverage Ratio and the amount of
such interest and Letter of Credit Fees actually so paid.
"Arranger" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, a
Delaware corporation.
"Assignee Lender" is defined in Section 11.11.1.
"Assignor Lender" is defined in Section 11.11.1.
-12-
"Assumed Indebtedness" means Indebtedness of a Person which is (i) in
existence at the time such Person becomes a Restricted Subsidiary of the
Company or (ii) assumed in connection with an Investment in or acquisition of
such Person, and has not been incurred or created by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to the Amendment Agreement.
"Base Financial Statements" is defined in Section 6.5.
"Base Rate Loan" means a Committed Loan bearing interest at a fluctuating
rate determined by reference to either the Alternate Base Rate or, in the case
of Canadian Loans, the Canadian Prime Rate.
"Borrowers" is defined in the preamble.
"Borrowing" means, as the context may require, Loans of the same type and
Tranche, made to the same Borrower and in the same Currency (and, in the case
of Fixed Rate Loans, having the same Interest Period) made by the relevant
Lenders on the same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.1 (in the case of Committed Loans) or Section 2.4 (in
the case of Uncommitted Revolving Loans).
"Borrowing Request" means (i) in the case of Committed Loans, a Committed
Loan Borrowing Request and (ii) in the case of Uncommitted Revolving Loans, an
Uncommitted Revolving Loan Borrowing Request.
"British Pounds" means the lawful currency of the United Kingdom of Great
Britain and Northern Ireland.
"BTCo" is defined in the preamble.
"Business Day" means any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in New
York City and, (i) with respect to Borrowings of, Interest Periods with respect
to, payments of principal and interest in respect of, and conversions of Base
Rate Loans into, Fixed Rate Loans, on which dealings in the applicable Currency
are carried on in the London interbank market and (ii) with respect to any
Borrowings of, Interest Periods with respect to, and payments of principal and
interest in respect of, Foreign Currency Loans or Reimbursement Obligations in
respect of Foreign Currency Letters of Credit, on which banks are generally
open for business in the principal financial center of the jurisdiction of such
Foreign Currency.
"Canadian BA" means a depository ▇▇▇▇ as defined in the Depository
Bills and Notes Act (Canada) in Canadian Dollars that is in the form of an
order signed by the Canadian Borrower and accepted by a Lender pursuant to this
Agreement or, for Lenders not participating in clearing services contemplated
in that Act, a draft or ▇▇▇▇ of exchange in Canadian Dollars that is drawn by
the Canadian Borrower and accepted by a Lender pursuant to this Agreement.
Orders that become depository bills, drafts and bills of exchange are sometimes
collectively referred to in this Agreement as "drafts." Canadian BAs shall have
a term of 30, 60, 90 or 180 days, shall be issued and payable only in Canada
and shall have a face amount of an integral multiple of Cdn $100,000. In
addition,
-13-
(a) to the extent the context shall require, each Acceptance Note
shall be deemed to be a Canadian BA; and
(b) references to outstanding principal amounts relating to Canadian
BAs shall refer to the stated amount of unmatured Canadian BAs
which have not been collateralized pursuant to, and in accordance
with, the terms of clause (i) of Section 3.1.1.
"Canadian BA Rate" means, for a particular term, the discount rate per
annum, calculated on the basis of a year of 365 days or 366 days, as the case
may be, equal to the average rate per annum for Canadian Dollar bankers'
acceptances having such term that appears on the Reuters Screen CDOR Page (or
any successor page) as of 11:00 a.m., Toronto time, on the first day of such
term as determined by the Administrative Agent or, if such rate is not
available at such time, the average discount rate for bankers acceptances
(accepted by Canadian chartered banks agreed to by the Administrative Agent and
the Canadian Borrower) having such term as calculated by the Administrative
Agent in accordance with normal market practice on such day.
"Canadian Borrower" is defined in the preamble.
"Canadian Dollar" and "Cdn $" each mean the lawful currency of Canada.
"Canadian Loan" means, as the context may require, a Committed Canadian
Revolving Loan or Canadian Term Loan.
"Canadian Prime Rate" means, on any date and relative to Canadian Loans, a
fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its prime rate for
Canadian Dollar loans in Canada; and
(b) the Canadian BA Rate most recently determined by the
Administrative Agent for 30-days bankers' acceptances plus the lesser
of (i) 3/4 of 1% and (ii) the Applicable Canadian BA Stamping Fee.
The Canadian Prime Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions
of credit. Changes in the rate of interest on that portion of any Canadian
Loans maintained at the Canadian Prime Rate will take effect simultaneously
with each change in the Canadian Prime Rate. The Administrative Agent will give
notice promptly to the Canadian Borrower and the applicable Lenders of changes
in the Canadian Prime Rate.
-14-
"Canadian Revolving Loan Commitment" is defined in clause (e) of Section
2.1.2.
"Canadian Revolving Loan Commitment Amount" means $5,000,000 (with
Canadian Revolving Loans to be denominated in Canadian Dollars), as such amount
may be modified pursuant to the terms hereof.
"Canadian Term Loans" is defined in clause (c) of Section 2.1.1.
"Capital Expenditures" means, for any period, the sum, without
duplication, of (i) the aggregate amount of all expenditures of the Company and
its Restricted Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as capital expenditures,
and (ii) the aggregate amount of the principal component of all Capitalized
Lease Liabilities incurred during such period by the Company and its Restricted
Subsidiaries; provided that Capital Expenditures shall not include (A) any such
expenditures or any such principal component funded with (x) any Casualty
Proceeds, as permitted under Section 3.1.1, or (y) any Net Disposition Proceeds
of any Asset Sale permitted under clause (c) of Section 7.2.9 or any Asset Sale
of obsolete or worn out equipment permitted under subclause (a)(i) of Section
7.2.9 or (B) any Investment made pursuant to Section 7.2.5 (other than pursuant
to clause (d) thereof).
"Capital Stock" means (i) in the case of a corporation, any and all
capital or corporate stock, (ii) in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) in the nature of corporate or capital stock,
(iii) in the case of a partnership or limited liability company, any and all
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Capital Transactions" means the Senior Subordinated Bridge Note Issuance,
the Holdings Equity Issuance and the FMH Preferred Stock Issuance.
"Capitalized Lease Liabilities" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness issued directly by the
United States of America or any agency thereof or guaranteed by the
United States of America or any agency thereof;
-15-
(b) commercial paper, maturing not more than nine months from
the date of issue, which is (i) rated at least A-l by S&P or P-l by
▇▇▇▇▇'▇ and not issued by an Affiliate of any Obligor or (ii) issued
by any Lender (or its holding company);
(c) any time deposit, certificate of deposit or bankers'
acceptance, maturing not more than one year after such time,
maintained with or issued by either (i) a commercial banking
institution (including U.S. branches of foreign banking institutions)
that is a member of the Federal Reserve System and has a combined
capital and surplus and undivided profits of not less than
$500,000,000, or (ii) any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either ▇▇▇▇▇'▇ or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) repurchase agreements which (i) are entered into with any
entity referred to in clause (b) or (c) above or any other financial
institution whose unsecured long-term debt (or the unsecured
long-term debt of whose holding company) is rated at least A- or
better by S&P or A3 or better by ▇▇▇▇▇'▇ and maturing not more than
one year after such time and (ii) are secured by a fully perfected
security interest in securities of the type referred to in clause (a)
above which have a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation of
such counterparty entity with whom such repurchase agreement has been
entered into;
(f) any money market or similar fund not less than 95% of the
assets of which are comprised of the items specified in clauses (a)
through (e) above and as to which withdrawals are permitted at least
every 90 days; or
(g) in the case of any Subsidiary of the Company organized or
having its principal place of business outside the United States,
investments denominated in the Currency of the jurisdiction in which
such Subsidiary is organized or has its principal place of business
which are similar to the items specified in clauses (a) through (f)
above.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of any property of the Company or any of its Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the amount
of any insurance proceeds or condemnation awards received by the Company or any
of its Subsidiaries in connection therewith, but excluding any proceeds or
awards required to be paid to a creditor (other than the Lenders) which holds a
Lien on the property which is the subject of such Casualty Event which Lien is
(i) permitted by Section 7.2.3 and (ii) is prior to the Liens of the Lenders,
if any, on such property.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
-16
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Information System List.
"Change in Control" means, at any time after the Closing Date, (i) the
failure of Holdings to own, free and clear of all Liens and encumbrances (other
than Liens of the type permitted to exist under clauses (b), (d) and (g) of
Section 7.2.3), all right, title and interest in 100% of the Voting Stock of
FMH; (ii) the failure of FMH to own, free and clear of all Liens and
encumbrances (other than Liens of the type permitted to exist under clauses
(b), (d) and (g) of Section 7.2.3), all right, title and interest in 100% of
the Capital Stock of the Company (other than directors' qualifying shares);
(iii) the failure of the Equity Investors to own at least 51% (on a fully
diluted basis) of the economic and voting interest in the Voting Stock of
Holdings; or (iv) the failure of the Equity Investors and their Affiliates to
have the right to designate or nominate, directly or indirectly, no less than
51% of the Directors of Holdings, FMH and the Company; provided that (a) no
Change of Control shall result from a holding company owning 100% of the Voting
Stock of Holdings so long as (x) such holding company shall have entered into
an agreement with the Administrative Agent for the benefit of the Secured
Parties substantially similar to the Holdings Guaranty and Pledge Agreement
whereby such holding company guarantees the Obligations and pledges the Voting
Stock of Holdings to secure the Obligations and (y) neither of the conditions
set forth in clauses (iii) or (iv) above shall exist with respect to such
holding company (deeming, for purposes of this clause (y), all references to
Holdings in such clauses (iii) and (iv) and elsewhere in this Agreement
(including the definition of Net Equity Proceeds) other than Article V to be
references to such holding company) and (b) this proviso shall apply to any
such holding company as if references to Holdings in clause (a) of this proviso
were references to such holding company.
"Charter Document" means, relative to any Obligor, its certificate of
incorporation (or similar charter document), its by-laws and all shareholder
agreements, voting trusts and similar arrangements to which such Obligor is a
party applicable to any of its authorized shares of Capital Stock.
"Closing Date" means July 20, 1998, the date all conditions set forth in
Section 5.1 of the Existing Credit Agreement were satisfied.
"Closing Date Certificate" means the certificate delivered pursuant to
Section 5.1.2 of the Existing Credit Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, (i) a Lender's Spanish
Term Loan Commitment, Revolving Loan Commitment or Letter of Credit Commitment
or (ii) the Swing Line Lender's Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, a Spanish Term Loan
Commitment Amount, a Revolving Loan Commitment Amount, a Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount.
"Commitment Letter" means the commitment letter, dated April 25, 1998,
among the Institutional Investors, the Arranger and the Syndication Agent,
including all annexes and exhibits thereto.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date or the Spanish Term Loan Commitment
Termination Date.
-17-
"Commitment Termination Event" means, with respect to any Commitment,
(i) the occurrence of any Event of Default described in clauses (b) through (d)
of Section 8.1.9 with respect to any Obligor (other than Restricted
Subsidiaries that are Immaterial Subsidiaries), or (ii) the occurrence and
continuance of any other Event of Default and either (x) the declaration of the
Loans or other Obligations to be due and payable pursuant to Section 8.3, or
(y) in the absence of such declaration, the giving of notice to the Company by
the Administrative Agent, acting at the direction of the Required Lenders, that
the Commitments have been terminated.
"Committed Borrowing" means a Borrowing comprised of Committed Loans.
"Committed Canadian Revolving Loans" is defined in clause (e) of Section
2.1.2.
"Committed Foreign Currency Loan" means a Committed Foreign Currency
Revolving Loan or a Foreign Currency Term Loan.
"Committed Foreign Currency Revolving Loan" means a Committed Canadian
Revolving Loan, a Committed French Revolving Loan, a Committed Spanish
Revolving Loan, a Committed U.K. Revolving Loan or any other Loan made pursuant
to a Foreign Currency Revolving Loan Commitment.
"Committed French Revolving Loans" is defined in clause (d) of Section
2.1.2.
"Committed Loan" means a Term Loan, a Committed Revolving Loan or a Swing
Line Loan.
"Committed Loan Borrowing Request" means a loan request and certificate
executed by an Authorized Officer of the applicable Borrower, substantially in
the form of Exhibit B-1.
"Committed Revolving Loan" means a Committed Foreign Currency Revolving
Loan or a U.S. Revolving Loan.
"Committed Spanish Revolving Loans" is defined in clause (c) of Section
2.1.2.
-18-
"Committed U.K. Revolving Loans" is defined in clause (b) of Section
2.1.2.
"Company" is defined in the preamble.
"Company Intercompany Loan" means the intercompany loan made by the
Company to FMH, evidenced by the Company Intercompany Note.
"Company Intercompany Note" means the promissory note issued by FMH to the
Company on the Original Closing Date.
"Company Pledge Agreement" means the Pledge Agreement, dated as of May 1,
1998, executed and delivered by an Authorized Officer of the Company pursuant
to the Original Credit Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Company Security Agreement" means the Security Agreement, dated as of May
1, 1998, executed and delivered by an Authorized Officer of the Company
pursuant to the Original Credit Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Compliance Certificate" means a certificate duly completed and executed
by the president, chief executive officer, treasurer, assistant treasurer,
controller or chief financial Authorized Officer of the Company, substantially
in the form of Exhibit E-1 hereto.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit C hereto.
"Contribution" is defined in the fifth recital.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Company, are
treated as a single employer under Section 414(b) or 414(c) of the Code, or for
purposes of Section 412 of the Code, Section 414(m) or Section 414(o) of the
Code.
-19-
"Cost Savings Program" means the cost savings programs described under the
heading "Cost Savings" in the Information Memorandum, consisting of the Phase I
Cost Savings (as defined in the Information Memorandum) and the Phase II Cost
Savings (as so defined).
"Credit Extension" means, as the context may require, (i) the making of a
Loan by a Lender or (ii) the issuance of any Letter of Credit, or the extension
of any Stated Expiry Date of any previously issued Letter of Credit, by an
Issuer. A continuation or conversion of a Canadian BA as set forth in Sections
2.6.1 and 2.6.2 shall not constitute a Credit Extension.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"CSFB" is defined in the preamble.
"Currency" means, as the context may require, U.S. Dollars or any Foreign
Currency.
"Current Assets" means, on any date, without duplication, all assets
which, in accordance with GAAP, would be included as current assets on a
consolidated balance sheet of the Company and its Restricted Subsidiaries at
such date as current assets (excluding, however, amounts due and to become due
from Affiliates of the Company which have arisen from transactions which are
other than arm's-length and in the ordinary course of its business).
"Current Liabilities" means, on any date, without duplication, all amounts
which, in accordance with GAAP, would be included as current liabilities on a
consolidated balance sheet of the Company and its Restricted Subsidiaries at
such date, excluding current maturities of Debt.
"CVC Entities" means CVC European Equity Partners, L.P., CVC European
Equity Partners (Jersey) L.P. and MMI Products, L.L.C.
"Debt" means, without duplication, the outstanding principal amount of all
Indebtedness of the Company and its Restricted Subsidiaries that (i) is of the
type referred to in clause (a) or (c) of the definition of "Indebtedness", (ii)
is of the type referred to in clause (b) of the definition of "Indebtedness"
(exclusive, however, of any such Indebtedness in respect of (x) undrawn
commercial letters of credit supporting Debt of the type described in clause
(i) above and undrawn trade letters of credit and (y) undrawn letters of credit
in respect of workers' compensation, insurance, performance and surety bonds
and similar obligations, in each case incurred in the ordinary course of
business) and (iii) any Contingent Liability in respect of any of the foregoing
types of Indebtedness.
-20-
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would, unless cured or waived,
constitute an Event of Default.
"Disbursement" is defined in Section 2.8.2.
"Disbursement Date" is defined in Section 2.8.2.
"Disbursement Due Date" is defined in Section 2.8.2.
"Disclosure Schedule" means the Disclosure Schedule attached as
Schedule I hereto, as it may be amended, supplemented or otherwise modified
from time to time by the Company with the written consent of the Required
Lenders.
"DLJ" is defined in the preamble.
"DLJMB Entities" means DLJ Merchant Banking Partners II, L.P., DLJ
Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJMB Funding II,
Inc., DLJ EAB Partners, L.P., UK Investment Plan 1997 Partners, DLJ Diversified
▇▇▇▇▇▇▇▇-▇, ▇.▇., ▇▇▇ ▇▇▇ ▇▇, ▇.▇., ▇▇▇ First ESC, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners-A, L.P. and DLJ Merchant Banking
Partners II-A, L.P.
"Documentation Agent" is defined in the preamble.
"Domestic Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "Domestic Office" on Schedule II hereto or in a
Lender Assignment Agreement, or such other office of a Lender (or any successor
or assign of such Lender) as may be designated from time to time by notice from
such Lender, as the case may be, to the Administrative Agent.
"DS Holding" is defined in the third recital.
"DS Holding Credit Agreement" is defined in the third recital.
"DS Holding Credit Agreement Closing Date" means March 30, 2000.
"EBITDA" means, for any applicable period, subject to clause (b) of
Section 1.4, the sum (without duplication) for the Company and its Restricted
Subsidiaries on a consolidated basis of
(a) Net Income,
plus
(b) the amount deducted in determining Net Income
representing amounts paid or to be paid by the Company and its
Restricted Subsidiaries with respect to (i) the Cost Savings Program
to the extent the aggregate amount added to Net Income pursuant to
this clause (b)(i) does not exceed, in the case of Phase I Cost
Savings (as defined in the Information Memorandum), $19,800,000 in
the aggregate over the term of this Agreement, and, in the case of
Phase II Cost Savings (as defined in the Information Memorandum),
$6,200,000 in the aggregate over the term of this Agreement, and (ii)
the Formica 2000 Restructuring Program to the extent the aggregate
amount added to Net Income pursuant to this clause (b)(ii) does not
exceed $3,800,000 in the aggregate over the term of this Agreement,
-21-
plus
(c) the amount deducted in determining Net Income
representing non-cash charges or expenses, including depreciation and
amortization (excluding any non-cash charges representing an accrual
of or reserve for cash charges to be paid within the next twenty-four
months),
plus
(d) the amount deducted in determining Net Income representing
income taxes (whether paid or deferred),
plus
(e) the amount deducted in determining Net Income representing
Interest Expense and Transaction Payments,
plus
(f) the amount deducted in determining Net Income
representing any net loss realized in connection with any sale,
lease, conveyance or other disposition of any asset (other than in
the ordinary course of business or from the Company or any of its
Restricted Subsidiaries to the Company or any of its Restricted
Subsidiaries) or any extraordinary or non-recurring loss,
plus
(g) for any period ending on or about any of the dates set
forth in the definition of Pro Forma Cost Savings, the amount set
forth in such definition of Pro Forma Cost Savings opposite such
date,
minus
(h) Restricted Payments of the type referred to in clause (c)(i)
of Section 7.2.6 made during such period;
-22-
provided, however, that, for any such period that includes the Fiscal Quarter
or Fiscal Quarters ending on or about September 30, 1999, December 31, 1999
and/or March 31, 2000, EBITDA attributable to the PSM Business shall be deemed
to be $4,750,000 in respect of each such Fiscal Quarter.
"EMU" is defined in Section 2.10.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to the protection of the
environment or the effect of the environment on human health or safety.
"Equity Investors" means the Institutional Investors and the Management
Investors.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euro" is defined in Section 2.10.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any applicable period, the excess (if any),
of
(a) EBITDA for such applicable period;
over
(b) the sum, without duplication (for such applicable period) of
(i) the cash portion of Interest Expense for such
applicable period;
plus
(ii) scheduled payments and mandatory prepayments,
to the extent actually made, of the principal amount of the
Term Loans or any other funded Debt (including Capitalized
Lease Liabilities), and mandatory prepayments of the
principal amount of the Revolving Loans pursuant to clause
(g) of Section 3.1.1 in connection with a permanent reduction
of any Revolving Loan Commitment Amount, in each case for
such applicable period;
plus
-23-
(iii) all federal, state and foreign income taxes
actually (without duplication) paid or payable in cash by the
Company and its Subsidiaries for such applicable period;
plus
(iv) Capital Expenditures actually made during such
applicable period pursuant to clause (a) of Section 7.2.7
(excluding Capital Expenditures constituting Capitalized
Lease Liabilities and by way of the incurrence of
Indebtedness permitted pursuant to clause (c) of Section
7.2.2 to a vendor of any assets permitted to be acquired
pursuant to Section 7.2.7 to finance the acquisition of such
assets);
plus
(v) the amount of the net increase (if any) of
Current Assets, other than cash and Cash Equivalent
Investments, over Current Liabilities of the Company and its
Subsidiaries for such applicable period;
plus
(vi) Investments permitted and actually made, in
cash, pursuant to clause (k) of Section 7.2.5 during such
applicable period;
plus
(vii) Restricted Payments of the type described in
clauses (c)(ii) and (c)(iii) of Section 7.2.6 made during
such period;
plus
(viii) gains on sales of assets (other than sales
permitted under clause (a) of Section 7.2.9);
lus
(ix) all amounts paid in cash by the Company and its
Restricted Subsidiaries in such period with respect to the
Cost Savings Program or the Formica 2000 Restructuring
Program to the extent such amounts were added to Net Income
in determining EBITDA pursuant to clause (b) of the
definition of "EBITDA".
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
-24-
"Exchange Equivalent" means, on any date of determination, with (a)
respect to any Foreign Currency, the equivalent amount in U.S. Dollars of such
Foreign Currency, and (b) with respect to U.S. Dollars, the equivalent amount
in the applicable Foreign Currency of U.S. Dollars, in each case as determined
by reference to the New York foreign exchange selling rates, as determined by
the Administrative Agent (in accordance with its standard practices).
"Existing Credit Agreement" is defined in the second recital.
"Existing Lenders" is defined in the second recital.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to (i) the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or (ii) if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated as of April 25,
1998, among the Institutional Investors, the Arranger and the Syndication
Agent.
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
"Fiscal Year" means any twelve-month period ending on December 31 of any
calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter,
subject to clause (b) of Section 1.4, the ratio computed for the period
consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters of
(a) EBITDA for all such Fiscal Quarters
to
(b) the sum (without duplication) of
(i) Capital Expenditures actually made during all
such Fiscal Quarters pursuant to clause (a) of Section 7.2.7
(excluding (x) Capital Expenditures constituting Capitalized
Lease Liabilities and (y) the principal component of any
funded Debt incurred pursuant to clause (c) of Section 7.2.2
to finance such Capital Expenditures); provided that (i) for
any such period that includes the Fiscal Quarter or Fiscal
Quarters ending on or about September 30, 1999, December 31,
1999 and/or March 31, 2000, the amount of Capital
Expenditures actually made by PSM and its Subsidiaries shall
be deemed to be $2,500,000 in respect of each such Fiscal
Quarter and (ii) for any such period ending on or about
December 31, 1999, March 31, 2000, June 30, 2000 and
September 30, 2000, $6,200,000 shall be deducted for the
purposes of this clause (i) from the amount of Capital
Expenditures actually made by the Company and its
Subsidiaries during such period;
-25
plus
(ii) the cash portion of Interest Expense for all
such Fiscal Quarters; provided that for the first three
Fiscal Quarters ending after the Original Closing Date,
Interest Expense shall be determined on an Annualized basis;
plus
(iii) all scheduled payments of principal of the
Term Loans and other funded Debt (including the principal
portion of any Capitalized Lease Liabilities and any funded
Debt of the type described in clause (i)(y) above) during all
such Fiscal Quarters; provided that for the first three
Fiscal Quarters ending after the Original Closing Date, such
payments shall be determined on an Annualized basis;
plus
(iv) Restricted Payments permitted pursuant to
clause (d) of Section 7.2.6 made during such period (other
than any such Restricted Payments made to pay (A) taxes paid
or payable in cash on account of the transfer, sale or
liquidation of Perstorp Surface Materials (UK) Ltd. (provided
such taxes do not exceed $3,000,000 in the aggregate over the
term of this Agreement) and (B) taxes that are required to be
reimbursed by the PSM Seller pursuant to the PSM Acquisition
Agreement to the extent the PSM Seller is not reasonably
denying its liability with respect thereto);
plus
(v) all federal, state and foreign income taxes
actually (without duplication) paid or payable in cash by the
Company and its Restricted Subsidiaries and Restricted
Payments made by the Company pursuant to clause (c)(ii) of
Section 7.2.6 during such period (other than (A) taxes paid
or payable in cash by the Company and its Restricted
Subsidiaries on account of the transfer, sale or liquidation
of Perstorp Surface Materials (UK) Ltd. (provided such taxes
do not exceed $3,000,000 in the aggregate over the term of
this Agreement) and (B) taxes that are required to be
reimbursed by the PSM Seller pursuant to the PSM Acquisition
Agreement to the extent the PSM Seller is not reasonably
denying its liability with respect thereto).
-26
"Fixed Rate Loan" means a LIBO Rate Loan or a Canadian BA.
"FMH" is defined in the fifth recital.
"FMH Guaranty and Pledge Agreement" means the Guaranty and Pledge
Agreement, dated as of May 1, 1998, executed and delivered by an Authorized
Officer of FMH pursuant to the Original Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"FMH Intercompany Loan" means the intercompany loan made by FMH to
Holdings, and evidenced by the FMH Intercompany Note.
"FMH Intercompany Note" means the promissory note issued by Holdings to
FMH on the Original Closing Date.
"FMH Preferred Stock" means the preferred stock of FMH.
"FMH Preferred Stock Issuance" means (i) the issuance on the Original
Closing Date by FMH to the Equity Investors of FMH Preferred Stock for cash
proceeds of approximately $50,000,000 and (ii) the issuance on the DS Holding
Credit Agreement Closing Date to certain of the Equity Investors of FMH
Preferred Stock for cash proceeds of approximately $29,196,897.
"Foreign Borrowers" means, collectively, the Foreign Term Borrowers and
the Foreign Revolver Borrowers.
"Foreign Currency" means, as applicable, Canadian Dollars, French Francs,
Spanish Pesetas, British Pounds or any other currency other than U.S. Dollars
which is convertible into U.S. Dollars without restrictions and in which the
Administrative Agent is not prohibited from transacting.
"Foreign Currency Equivalent" means the Exchange Equivalent in the
applicable Foreign Currency of any amount of U.S. Dollars.
"Foreign Currency Issuer" means any Lender as may be designated by the
Company (and consented to by the Agents and such Lender, such consent by the
Agents not to be unreasonably withheld) in its capacity as issuer of Foreign
Currency Letters of Credit; provided that such Lender shall undertake to
perform certain administrative functions (including, without limitation, the
calculation of relevant fees and the forwarding of notices) in connection with
the issuance of Foreign Currency Letters of Credit as considered necessary by
the Administrative Agent.
-27
"Foreign Currency Letter of Credit" means a Letter of Credit
denominated in a Foreign Currency.
"Foreign Currency Letter of Credit Commitment" means a Letter of Credit
Commitment in respect of Foreign Currency Letters of Credit.
"Foreign Currency Letter of Credit Commitment Amount" means, on any date
in respect of any Foreign Borrower, the aggregate amount of the Commitments of
all applicable Issuers to issue Foreign Currency Letters of Credit to such
Foreign Borrower denominated in a Foreign Currency; provided that the Foreign
Currency Letter of Credit Commitment Amount in respect of each Foreign Borrower
shall not exceed the then applicable Foreign Currency Revolving Loan Commitment
Amount for such Borrower, as such amount may be reduced pursuant to Section 2.2
or increased pursuant to Section 2.5.
"Foreign Currency Letter of Credit Outstandings" means, on any date, an
amount equal to the sum of
(a the then aggregate outstanding amount which is undrawn and
available under all issued and outstanding Foreign Currency Letters
of Credit,
plus
(b the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of Foreign Currency Letters of
Credit.
"Foreign Currency Loan" means, as the context may require, a Foreign
Currency Revolving Loan or a Foreign Currency Term Loan.
"Foreign Currency Revolving Loan" means, as the context may require, a
Committed Foreign Currency Revolving Loan or an Uncommitted Revolving Loan.
"Foreign Currency Revolving Loan Commitment" means, as the context
may require, a Lender's U.K. Revolving Loan Commitment, Spanish Revolving Loan
Commitment, French Revolving Loan Commitment, Canadian Revolving Loan
Commitment or any other commitment of a Lender to make Committed Foreign
Currency Revolving Loans to a Foreign Borrower pursuant to Section 2.5 hereof.
"Foreign Currency Revolving Loan Commitment Addendum" means an addendum to
this Agreement among one or more Lenders, the Company and a Foreign Borrower,
substantially in the form of Exhibit G-1 hereto, setting forth, among other
things, the commitment of such Lender or Lenders to make, and the obligation of
such Foreign Borrower to repay, Committed Foreign Currency Revolving Loans,
and, in certain cases, issue and/or participate in Foreign Currency Letters of
Credit, in accordance with this Agreement.
-28-
"Foreign Currency Revolving Loan Commitment Amount" means, as the context
may require, the U.K. Revolving Loan Commitment Amount, the Spanish Revolving
Loan Commitment Amount, the French Revolving Loan Commitment Amount, the
Canadian Revolving Loan Commitment Amount or, with respect to any other Foreign
Currency Revolving Loan Commitment, the amount (expressed in U.S. Dollars) set
forth as the committed amount for such Commitment in the Foreign Currency
Revolving Loan Commitment Addendum with respect to such Foreign Currency
Revolving Loan Commitment.
"Foreign Currency Revolving Loan Limit" means $90,000,000.
"Foreign Currency Term Loan" means, as the context may require, a Canadian
Term Loan, a U.K. Term Loan or a Spanish Term Loan.
"Foreign Revolver Borrowers" means, collectively, the U.K. Revolver
Borrower, the Spanish Revolver Borrower, the French Revolver Borrower, the
Canadian Borrower and any other Non-U.S. Subsidiary of the Company that shall
have satisfied all of the conditions set forth in Section 5.3.
"Foreign Subsidiary Pledge Supplement" means any supplement to a Pledge
Agreement in respect of Subsidiaries of the Company incorporated outside of the
United States of America, in form and substance reasonably satisfactory to the
Administrative Agent, as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time.
"Foreign Term Borrowers" means, collectively, the Canadian Borrower, the
U.K. Term Borrower and the Spanish Term Borrower.
"Formica Business" is defined in Section 7.2.1.
"Formica International" means Formica International Corporation, a New
Jersey corporation.
"Formica 2000 Restructuring Program" means the restructuring in calendar
year 2000 of the Company's operations in North America, as described under the
heading "Formica Restructuring" in the Memorandum dated May 1, 2000, from DLJ
to the Existing Lenders.
"Fountainhead Acquisition" means the purchase by Holdings from
International Paper Company and its Subsidiaries ("International Paper") of all
of the assets exclusively relating to International Paper's Fountainhead solid
surfacing operations, such purchase to be on terms reasonably satisfactory to
the Agents.
-29-
"French Francs" means the lawful currency of the French Republic.
"French Revolver Borrower" is defined in the preamble.
"French Revolving Loan Commitment" is defined in clause (d) of Section
2.1.2.
"French Revolving Loan Commitment Amount" means $5,000,000 (with French
Revolving Loans to be denominated in French Francs), as such amount may be
modified pursuant to the terms hereof.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in Section 1.4.
"Hazardous Material" means (i) any "hazardous substance", as defined by
CERCLA, (ii) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended, (iii) any petroleum product, or (iv) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material or substance
within the meaning of any other applicable Environmental Law.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under interest rate or currency swap agreements, interest or
currency exchange rate cap agreements and interest or currency exchange rate
collar agreements, and all other agreements or arrangements designed to protect
such Person against fluctuations in interest rates, currency exchange rates or
commodity prices.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Holdings" is defined in the tenth recital.
"Holdings Equity Issuance" means (i) the issuance on the Original Closing
Date by Holdings to the Equity Investors of common stock and preferred stock of
Holdings (and warrants to purchase common stock and/or preferred stock of
Holdings) for cash proceeds of approximately $85,000,000 and (ii) the issuance
on the DS Holding Credit Agreement Closing Date to certain of the Equity
Investors of common stock and preferred stock of Holdings (and warrants to
purchase common stock and/or preferred stock of Holdings) for cash proceeds of
approximately $50,860,375.
"Holdings Guaranty and Pledge Agreement" means the Guaranty and Pledge
Agreement, dated as of May 1, 1998, executed and delivered by an Authorized
Officer of Holdings pursuant to the Original Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
-30-
"Immaterial Subsidiary" means each Subsidiary of the Company that (a)
accounted for no more than 1% of the consolidated gross revenues of the Company
and its Subsidiaries for the most recently completed Fiscal Quarter with
respect to which, pursuant to Section 7.1.1(a) or 7.1.1(b), financial
statements have been, or are required to have been, delivered by the Company on
or before the date as of which any such determination is made, as reflected in
such financial statements; and (b) has assets which represent no more than 1%
of the consolidated gross assets of the Company and its Subsidiaries as of the
last day of the most recently completed Fiscal Quarter with respect to which,
pursuant to Section 7.1.1(a) or 7.1.1(b), financial statements have been, or
are required to have been, delivered by the Company on or before the date as of
which any such determination is made, as reflected in such financial
statements.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of any Obligor, any qualification or exception to such opinion or
certification (i) which is of a "going concern" or similar nature, (ii) which
relates to the limited scope of examination of matters relevant to such
financial statement (except, in the case of matters relating to any acquired
business or assets, in respect of the period prior to the acquisition by such
Obligor of such business or assets), or (iii) which relates to the treatment or
classification of any item in such financial statement and which, as a
condition to its removal, would require an adjustment to such item the effect
of which would be to cause the Company to be in default of any of its
obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a all obligations of such Person for borrowed money or for
the deferred purchase price of property or services (exclusive of
deferred purchase price arrangements in the nature of open or other
accounts payable owed to suppliers on normal terms in connection with
the purchase of goods and services in the ordinary course of
business) and all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (exclusive of
obligations of Perstorp do Brasil Industria e Comercio Ltda. payable
to Metalurgica Albras Ltda. in an amount not exceeding $2,700,000 in
respect of the acquisition of Albra Papeis Decorativos S/A;
(b all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
-31-
(c all Capitalized Lease Liabilities;
(d net liabilities of such Person under all Hedging Obligations;
(e whether or not so included as liabilities in accordance
with GAAP, all Indebtedness of the types referred to in clauses (a)
through (d) above (excluding prepaid interest thereon) secured by a
Lien (other than a Lien on the Capital Stock of an Unrestricted
Subsidiary) on property owned or being purchased by such Person
(including Indebtedness arising under conditional sales or other
title retention agreements), whether or not such Indebtedness shall
have been assumed by such Person or is limited in recourse; provided,
however, that, to the extent such Indebtedness is limited in recourse
to the assets securing such Indebtedness, the amount of such
Indebtedness shall be limited to the fair market value of such
assets; and
(f all Contingent Liabilities of such Person in respect of any of
the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer (to the extent such Person is
liable for such Indebtedness).
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Information Memorandum" means the Information Memorandum dated March 2000
with respect to the credit facilities included in the DS Holding Credit
Agreement.
"Institutional Investors" means the CVC Entities and the DLJMB Entities.
"Intercompany Loans" means, collectively, the Company Intercompany Loan
and the FMH Intercompany Loan.
"Intercompany Notes" means, collectively, the Company Intercompany Note
and the FMH Intercompany Note.
"Interest Coverage Ratio" means, at the end of any Fiscal Quarter, subject
to clause (b) of Section 1.4, the ratio computed for the period consisting of
such Fiscal Quarter and each of the three immediately prior Fiscal Quarters of:
(a EBITDA (for all such Fiscal Quarters)
to
-32-
(b the cash portion of Interest Expense (for all such Fiscal
uarters; provided that for the first three Fiscal Quarters ending
fter the Original Closing Date, Interest Expense shall be determined
n an Annualized basis).
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense of the Company and its Restricted Subsidiaries
for such applicable period, as determined in accordance with GAAP, including
the portion of any payments made in respect of Capitalized Lease Liabilities
allocable to interest expense, but excluding (to the extent included in
interest expense) up-front fees and expenses and the amortization of all
deferred financing costs.
"Interest Period" means, (a) as to any LIBO Rate Loan that is a Committed
Loan, the period commencing on the Borrowing date of such Loan or on the date
on which the Loan is converted into or continued as a LIBO Rate Loan, and
ending on the date one, two, three, six or, if available to the applicable
Lenders, nine or twelve months thereafter as selected by the applicable
Borrower in its Borrowing Request or its Conversion/Continuation Notice, (b) as
to any Uncommitted LIBO Revolving Loan, the period commencing on the Borrowing
date of such Loan and ending on the date such integral number of weeks or
months thereafter as selected by the applicable Foreign Borrower in its
Uncommitted Revolving Loan Borrowing Request, and (c) as to any Canadian BA or
Acceptance Note, the period beginning on (and including) the date on which such
Canadian BA is accepted or rolled over pursuant to Section 2.3 or 2.6 or such
Acceptance Note is issued pursuant to Section 2.11.3 and continuing to (but
excluding) the date which is 30, 60, 90 or 180 days thereafter as the Canadian
Borrower may select in its relevant notice pursuant to Section 2.3 or 2.6;
provided, however that:
(i if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;
(ii any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period;
(iii no Interest Period for any Loan shall extend beyond the
Stated Maturity Date for such Loan or the Revolving Loan Commitment
Termination Date, as applicable;
(iv no Interest Period applicable to a Term Loan or portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of the Term Loans unless the aggregate
principal amount of Term Loans represented by Base Rate Loans, or by
LIBO Rate Loans having Interest Periods that will expire on or before
such date, equals or exceeds the amount of such principal payment;
and
-33-
(v there shall be no more than 20 Interest Periods in respect of
Committed Loans in effect at any one time;
provided that (x) with respect to each Borrowing of Term Loans made on the
Closing Date, "Interest Period" (other than any Interest Period with respect to
any Uncommitted LIBO Loan with a duration of less than one month) means the
period commencing on the Business Day on which such Borrowing is made and
ending on the last Business Day of the month following the month in which such
Borrowing is made (or 30 days following such Business Day, as the case may be)
and (y) with respect to each Borrowing of U.S. Term B Loans outstanding on the
Amendment Effective Date, "Interest Period" means the period commencing on the
Amendment Effective Date, and ending on the last Business Day of the month
following the month in which the Amendment Effective Date occurs.
"Investment" means, relative to any Person, (i) any loan or advance made
by such Person to any other Person (excluding commission, travel, relocation
and similar advances to officers, directors and employees (or individuals
acting in similar capacities) made in the ordinary course of business), or (ii)
any investment, contribution or similar transfer made by such Person for
purposes of acquiring or maintaining any ownership or similar interest in
another Person or a business of another Person (whether through the ownership
or acquisition of Capital Stock, assets or otherwise, including by way of
merger, consolidation or otherwise). The amount of any Investment shall be the
original principal or capital amount thereof less all returns of principal or
equity thereon (and without adjustment by reason of the financial condition of
such other Person) and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or
capital amount equal to the fair market value of such property at the time of
such transfer or exchange.
"Investors' Agreement" means the Agreement, dated as of May 1, 1998, among
Holdings, FMH and certain other shareholders (as amended pursuant to the
amendment dated as of March 30, 2000 and as further amended or otherwise
modified from time to time in accordance with Section 7.2.10).
"Invitation for Uncommitted Interest Quotes" means an invitation to the
Lenders having a Percentage of any Revolving Loan Commitment of greater than
zero, substantially in the form of Exhibit G-4 hereto, sent to such Lenders by
the Administrative Agent on behalf of the applicable Foreign Borrower pursuant
to Section 2.4, inviting the Lenders to submit Uncommitted Interest Quotes in
accordance with Section 2.4.3.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the applicable Borrower, substantially in
the form of Exhibit B-3 hereto.
"Issuer" means a U.S. Issuer or a Foreign Currency Issuer.
-34-
"Lender Assignment Agreement" means a Lender Assignment Agreement,
substantially in the form of Exhibit F hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to any Issuer in respect
of any Currency, such Issuer's obligation to issue Letters of Credit
denominated in such Currency pursuant to Section 2.1.3 and, with respect to
each of the other Lenders that has a Revolving Loan Commitment in respect of
such Currency, the obligation of each such Lender to participate in such
Letters of Credit pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, with respect to
U.S. Letters of Credit and Foreign Currency Letters of Credit, a maximum amount
of $100,000,000, as such amount may be reduced from time to time pursuant to
Section 2.2.
"Letter of Credit Fee" is defined in Section 3.3.3.
"Letter of Credit Outstandings" means, on any date, an amount equal to the
sum of
(a the U.S. Letter of Credit Outstandings on such date,
plus
(b the U.S. Dollar Equivalent of the Foreign Currency Letter of
Credit Outstandings on such date.
"Letter of Credit Reimbursement Obligation Rate" means, in the case
of Foreign Currency Letters of Credit denominated in Canadian Dollars, French
Francs, Spanish Pesetas or British Pounds, the LIBO Rate or the Canadian BA
Rate, as applicable to Committed Canadian Revolving Loans, Committed French
Revolving Loans, Committed Spanish Revolving Loans or Committed U.K. Revolving
Loans, as the case may be, in each case made as Fixed Rate Loans in a principal
amount approximately equal to the amount of the applicable Reimbursement
Obligation and having an Interest Period of one month (or 30 days as
applicable), and in the case of Foreign Currency Letters of Credit denominated
in any other Foreign Currency, the rate set forth in the applicable Foreign
Currency Revolving Loan Commitment Addendum.
"Leverage Ratio" means, at the end of any Fiscal Quarter, subject to
clause (b) of Section 1.4, the ratio of
(a total Debt less cash and Cash Equivalent Investments of
the Company and its Restricted Subsidiaries on a consolidated basis
outstanding at such time;
-35
to
(b EBITDA for the period of four consecutive Fiscal Quarters ended
on such date.
"Leverage Ratio Estimate" is defined in the definition of Applicable
Commitment Fee.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans in
any Currency, the rate of interest per annum determined by the Administrative
Agent to be the arithmetic mean (rounded upward to the next 1/100th of 1%) of
the rates of interest per annum at which deposits in such Currency in the
approximate amount of the Loan to be made or continued as, or converted into, a
LIBO Rate Loan by the Administrative Agent (or, in the case of any LIBO Rate in
respect of any LIBO Rate Loans in which the Administrative Agent will not
participate, $1,000,000 or the Foreign Currency Equivalent thereof) and having
a maturity comparable to such Interest Period would be offered to the
Administrative Agent in the London interbank market at its request (i) in the
case of LIBO Rate Loans denominated in any Currency other than British Pounds,
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, or (ii) in the case of LIBO Rate Loans
denominated in British Pounds, at approximately 11:00 a.m., London time, on the
day such Interest Period commences.
"LIBO Rate (Additional Cost Adjusted)" means, relative to any U.K. Loan
for any Interest Period, the LIBO Rate in respect of such U.K. Loan for such
Interest Period, adjusted for any Additional Costs.
"LIBO Rate Auction" means a solicitation of Uncommitted Interest
Quotes setting forth Uncommitted Interest Margins based on the LIBO Rate
pursuant to Section 2.4.
"LIBO Rate Loan" means a Loan in any Currency bearing interest, at all
times during an Interest Period applicable to such Loan, at a fixed rate of
interest determined by reference to the LIBO Rate for such Currency.
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan denominated in
U.S. Dollars to be made, continued or maintained as, or converted into, a LIBO
Rate Loan for any Interest Period, the rate of interest per annum (rounded
upwards to the next 1/100th of 1%) determined by the Administrative Agent as
follows:
LIBO Rate = LIBO Rate
-------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
-36-
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR Office" means, relative to any Lender, (i) in the case of Term
Loans or Committed Revolving Loans denominated in U.S. Dollars, British Pounds,
Canadian Dollars, French Francs or Spanish Pesetas, the office of such Lender
designated as such for such Currency on Schedule II hereto or designated in the
Lender Assignment Agreement pursuant to which such Lender became a Lender
hereunder, (ii) in the case of LIBO Rate Loans that are Committed Foreign
Currency Revolving Loans denominated in any other Foreign Currency, the office
of such Lender designated as such in the applicable Foreign Currency Revolving
Loan Commitment Addendum or (iii) in either case, such other office of a Lender
as shall be so designated from time to time by notice from such Lender to the
Company and the Administrative Agent, which shall be making or maintaining LIBO
Rate Loans of such Lender in such Currency hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
Rate Loans denominated in U.S. Dollars, the percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Lender) under regulations issued from time to time by the
F.R.S. Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
"Loan" means, as the context may require, a Revolving Loan, a Term Loan or
a Swing Line Loan, of any type and in any available Currency and shall include
without limitation the face amount of all Canadian BAs in respect of which any
Lender has not received payout in full. References herein to the "principal
amount" of a Loan shall, when referring to a Canadian BA, mean the face amount
thereof.
"Loan Document" means this Agreement, the Notes, the Letters of Credit,
each Foreign Currency Revolving Loan Commitment Addendum, each Term Loan
Commitment Addendum, each Rate Protection Agreement relating to Hedging
Obligations of the Company or any of its Subsidiaries, each Uncommitted
Revolving Borrowing Addendum, each Borrowing Request, each Issuance Request,
the Fee Letter, the Administrative Agent's Fee Letter, the PSM Fee Letter, each
Pledge Agreement, the Subsidiary Guaranty, each Mortgage (upon execution and
delivery thereof), each Security Agreement, the Affirmation and Consent, the
Amendment Agreement and each other agreement, document or instrument delivered
in connection with this Agreement or any other Loan Document, whether or not
specifically mentioned herein or therein.
-37-
"Management Investors" mean certain current members of the management of
FMH and the Company that purchased or were granted equity interests in Holdings
on the Original Closing Date.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of the Company
and its Restricted Subsidiaries, taken as a whole, (b) a material impairment of
the ability of the Company or any other Obligor to perform its respective
material obligations under the Loan Documents to which it is or will be a
party, or (c) an impairment of the validity or enforceability of, or a material
impairment of the rights, remedies or benefits available to the Issuers, the
Agents, the Arranger or the Lenders under, this Agreement or any other Loan
Document.
"Material Documents" means the Stock Purchase Agreement, the Investors'
Agreement, the PSM Acquisition Agreement and the Senior Subordinated Debt
Documents, each as amended or otherwise modified from time to time as permitted
in accordance with the terms hereof or of any other Loan Document.
"Mergers" is defined in the sixth recital.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means, collectively, each mortgage or deed of trust executed
and delivered pursuant to the terms of this Agreement, including the Original
Credit Agreement, the Existing Credit Agreement and clause (b) of Section 7.1.8
or 7.1.12 of this Agreement, in form and substance reasonably satisfactory to
the Agents.
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance by the Company or any of its Restricted Subsidiaries of any Debt
(other than Debt permitted by Section 7.2.2 as in effect on the date hereof),
the excess of
(a the gross cash proceeds received by the Company or any of its
Restricted Subsidiaries from such incurrence, sale or issuance,
over
(b the sum, without duplication, of (i) all reasonable and
customary underwriting commissions and legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with such
incurrence, sale or issuance, (ii) in the case of any Debt incurred,
sold or issued by any Restricted Subsidiary that is a Non-U.S.
Subsidiary, any taxes or other costs or expenses resulting from
repatriating any such proceeds to the United States, and (iii) to the
extent used to refinance the Senior Subordinated Bridge Notes, cash
proceeds of the Permanent Financing.
-38-
"Net Disposition Proceeds" means, with respect to any sale, transfer or
other disposition of any assets of the Company or any of its Restricted
Subsidiaries (other than sales permitted pursuant to clause (a), (b), (d) (to
the extent the proceeds of transfer permitted thereunder constitute Net
Casualty Proceeds) or (e) of Section 7.2.9, but including any sales or
issuances of Capital Stock or other equity interests of or by any Subsidiary of
the Company), the excess of
(a the gross cash proceeds received by the Company or any of
its Restricted Subsidiaries from any such sale, transfer or other
disposition and any cash payments received in respect of promissory
notes or other non-cash consideration delivered to the Company or
such Restricted Subsidiary in respect thereof,
over
(b the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment
banking, brokerage, accounting and other professional fees, sales
commissions and disbursements and all other reasonable fees, expenses
and charges, in each case actually incurred in connection with such
sale, transfer or other disposition, (ii) all taxes and other
governmental costs and expenses actually paid or estimated by the
Company (in good faith) to be payable in cash in connection with such
sale, transfer or other disposition (including, in the case of a
transfer, sale or other disposition of non-U.S. assets, any such
taxes or other costs or expenses resulting from repatriating any such
proceeds to the United States), (iii) payments made by the Company or
any of its Restricted Subsidiaries to retire Indebtedness (other than
the Loans) of the Company or any of its Restricted Subsidiaries where
payment of such Indebtedness is required in connection with such
sale, transfer or other disposition and (iv) reserves for purchase
price adjustments and retained fixed liabilities reasonably expected
to be payable by the Company and its Restricted Subsidiaries in cash
in connection therewith;
provided, however, that if, after the payment of all taxes, purchase price
adjustments and retained fixed liabilities with respect to such sale, transfer
or other disposition, the amount of estimated taxes, purchase price adjustments
and retained fixed liabilities, if any, pursuant to clause (b)(ii) or (b)(iv)
above exceeded the tax, purchase price adjustment and retained fixed liability
amount actually paid in cash in respect of such sale, transfer or other
disposition, the aggregate amount of such excess shall, at such time,
constitute Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by the
Company, FMH or Holdings to any Person of any of its Capital Stock or any
warrants or options with respect to
-39-
its Capital Stock or the exercise of any such warrants or options after the
Original Closing Date (other than pursuant to (i) capital contributions or
Capital Stock issuances (from other than a Public Offering), (ii) any
subscription agreement, option plan, incentive plan or similar arrangement with
any officer, employee or director of Holdings, FMH, the Company or any
Subsidiary of the Company, (iii) any loan by the Company, FMH, Holdings or any
Subsidiary of the Company pursuant to clause (h) of Section 7.2.5, (iv) the
sale of any Capital Stock of Holdings to any officer, director or employee of
Holdings, FMH, the Company or any Subsidiary of the Company in an aggregate
amount not to exceed $15,000,000 after the Original Closing Date or (vi) the
exercise of any options or warrants issued to any Equity Investor or any
officer, employee or director of Holdings, FMH, the Company or any Subsidiary
of the Company), the excess of
(a the gross cash proceeds received by Holdings and its
Subsidiaries from such sale or issuance,
over
(b the sum, without duplication, of (i) all reasonable and
customary underwriting commissions and legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with such sale
or issuance, and (ii) to the extent used to refinance the Senior
Subordinated Bridge Notes, cash proceeds of the Permanent Financing.
"Net Income" means, for any period, the net income of the Company and its
Subsidiaries for such period on a consolidated basis, excluding extraordinary
or non-recurring gains; provided, however, that the Net Income of any Person
that is, during such period, not a Restricted Subsidiary or that is accounted
for by the equity method of accounting shall be included only to the extent of
the amount of dividends or distributions paid to the Company or a Restricted
Subsidiary in cash during such period.
"Non-Recourse Debt" means Indebtedness (i) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against the issuer of such Indebtedness) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity, and (ii) as to which the Persons to whom such
Indebtedness is owed have acknowledged and consented, in writing, that they do
not have any recourse to the stock or assets of the Company or any of its
Restricted Subsidiaries (other than stock of Unrestricted Subsidiaries pledged
by the Company or any Restricted Subsidiary to secure Debt of an Unrestricted
Subsidiary); provided, however, that in no event shall Indebtedness of any
Unrestricted Subsidiary fail to be Non-Recourse Debt solely as a result of any
default provisions contained in a guarantee thereof by the Company or any of
its Restricted Subsidiaries if the Company or such Restricted Subsidiary was
otherwise permitted to provide such guarantee under this Agreement.
-40-
"Non-U.S. Lender" means any Lender (including each Assignee Lender) that
is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) an estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"Non-U.S. Subsidiary" means a Subsidiary of the Company that is not a
U.S. Subsidiary, including without limitation any Foreign Borrower.
"Note" means, as the context may require, a Revolving Note, a Term Note or
a Swing Line Note.
"Notice of Uncommitted Revolving Borrowing" is defined in clause (a) of
Section 2.4.4.
"Notional BA Proceeds" means, with respect to any Canadian BA, the
face amount of such Canadian BA less the aggregate of:
(a a discount from the face amount determined in accordance
with the normal market practice based on either (i) on any day, with
respect to any Canadian BA accepted by a Lender that is listed on
Schedule I to the Bank Act (Canada), the bankers' acceptance rate for
bankers' acceptances having a maturity comparable to that of such
Canadian BA as quoted on the Reuters Screen CDOR (Canadian Deposit
Offered Rate) Page (or any successor page) as of 10:00 a.m., Toronto
time, on the date of issuance of such Canadian BA or, if such rate is
not available at such time, the bankers' acceptance rate for bankers'
acceptances having a maturity comparable to those of such Canadian BA
as calculated by the Administrative Agent in accordance with normal
market practice on such day (the "CDOR Rate") or (ii) on any day,
with respect to any Canadian BA accepted by a Lender that is listed
on Schedule II to the Bank Act (Canada), the lesser of (x) the CDOR
Rate on such day plus .07% per annum and (y) the arithmetic average,
determined by the Administrative Agent, of the bankers' acceptance
rates quoted to the Administrative Agent by two Lenders selected and
agreed to by the Company and the Administrative Agent which are
listed on Schedule II to the Bank Act (Canada) as the rate at which
such Lenders would purchase at 10:00 a.m., Toronto time, on such date
bankers' acceptances having a maturity comparable to those of such
Canadian BA; and
(b an acceptance fee calculated at the rate per annum, on the
basis of a year of 365 days or 366 days, as the case may be, equal to
the Applicable Canadian BA Stamping Fee on the face amount of such
Canadian BA for its term, being the actual number of days in the
period commencing on the date of acceptance by such Lender of such
Canadian BA and continuing to (but excluding) the maturity date of
such Canadian BA, such acceptance fee to be non-refundable and fully
earned when due.
-41-
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers and the other Obligors arising under or in connection with this
Agreement and each other Loan Document.
"Obligor" means any Borrower or any other Person (other than any Agent,
the Arranger, the Issuers, the Swing Line Lender or any Lender) obligated under
any Loan Document.
"Original Closing Date" means May 1, 1998.
"Original Credit Agreement" is defined in the first recital.
"Participant" is defined in Section 11.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"Pension Plan" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Company or any corporation, trade or business that is, along with the Company,
a member of a Controlled Group, has or within the prior six years has had any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five, or by reason of being deemed to be a contributing sponsor under
section 4069 of ERISA.
"Percentage" means, relative to any Lender, (i) the applicable percentage
relating to U.S. Term A Loans, U.S. Term B Loans, U.K. Term Loans or Canadian
Term Loans or Committed Revolving Loans denominated in U.S. Dollars, British
Pounds, Canadian Dollars, French Francs or Spanish Pesetas, as the case may be,
as set forth opposite its name on Schedule II hereto under the applicable
column heading or set forth in Lender Assignment Agreement(s) under the
applicable column heading or (ii) the applicable percentage relating to Spanish
Term Loans, Additional U.S. Term Loans or Committed Foreign Currency Revolving
Loans in any other Foreign Currency as set forth opposite its name in a Term
Loan Commitment Addendum or a Foreign Currency Revolving Loan Commitment
Addendum, as applicable, or Lender Assignment Agreement(s) under the applicable
heading, in each case, as such percentage may be adjusted from time to time
pursuant to Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lender(s) and delivered pursuant to Section 11.11 or, in the case of a
Lender's Percentage relating to Additional Loan Commitments, pursuant to clause
(h) of Section 2.1.2. A Lender shall not have any Commitment to make Committed
Revolving Loans in any Currency, Additional U.S. Term Loans or Spanish Term
Loans, as the case may be, if its percentage under the applicable column
heading or in the applicable Foreign Currency Revolving Loan Commitment
Addendum, Term Loan Commitment Addendum or Lender Assignment Agreement is zero.
-42-
"Permanent Financing" has the meaning set forth in the Securities Purchase
Agreement dated as of the Original Closing Date in respect of the Senior
Subordinated Bridge Notes.
"Permitted Refinancing" means, relative to any Indebtedness, any other
Indebtedness which is incurred to repay and retire in full such refinanced
Indebtedness and all other monetary obligations in respect of such refinanced
Indebtedness; provided, however, that (a) the weighted average life of such
refinancing Indebtedness shall not be less than the weighted average life on
the date of such refinancing of such refinanced Indebtedness; and (b) the
refinancing Indebtedness shall not contain terms and conditions that, taken as
a whole, make the refinancing Indebtedness materially more burdensome to the
Company or Restricted Subsidiaries, or materially more detrimental to the
Lenders (including without limitation with respect to the subordination
provisions contained therein) than the terms in effect on the date of such
refinancing of the refinanced Indebtedness.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the Company Pledge
Agreement, the FMH Guaranty and Pledge Agreement, the Holdings Guaranty and
Pledge Agreement, the Subsidiary Pledge Agreement or any Foreign Subsidiary
Pledge Supplement.
"Pro Forma Cost Savings" means, for the period of four Fiscal Quarters
ended on or about each of the dates set forth below, the amount set forth below
opposite such date under the "Total" column:
Period Ended EBITDA Increase Amount
Phase I Phase II Total
June 30, 2000 $14,000,000 0 $14,000,000
September 30, 2000 $14,000,000 0 $14,000,000
December 30, 2000 $10,500,000 0 $10,500,000
March 31, 2000 $ 7,000,000 $10,200,000 $17,200,000
June 30, 2000 $ 3,500,000 $ 7,650,000 $11,150,000
September 30, 2001 0 $ 5,100,000 $ 5,100,000
December 31, 2001 0 $ 2,550,000 $ 2,550,000
-43-
"PSM" means Perstorp Surface Materials AB, a Swedish company.
"PSM Acquisition" means the acquisition of 100% of the Capital Stock of
PSM (and 100% of the Capital Stock of Perstorp IKI Oy, a Finnish company) by
Decorative Surfaces Holding AB, a Swedish company, pursuant to the terms of the
PSM Acquisition Agreement.
"PSM Acquisition Agreement" means the Share Transfer Agreement fully
executed as of March 1, 2000, and as amended on March 27, 2000 (and the Share
Transfer Agreement - Final and fully executed as of March 27, 2000), by and
between Decorative Surfaces Holding AB and the PSM Seller.
"PSM Business" means the businesses conducted by PSM and its Subsidiaries.
"PSM Fee Letter" means the confidential fee letter entered into on March
30, 2000 among DS Holding, PSM Funding, Inc. and DLJ.
"PSM Seller" means Perstorp Nederland B.V., a corporation organized under
the laws of the Netherlands.
"PSM Transaction" means the PSM Acquisition and the financings and other
transactions relating thereto provided by, or described in, the DS Holding
Credit Agreement.
"Public Offering" means with respect to any Person, any sale after the
Closing Date of the Capital Stock of such Person to the public pursuant to any
primary offering registered under the Securities Act of 1933.
"Purchased Foreign Subsidiaries" means Formica Nederland BV, Formica
Italia SRL and Formica (▇▇▇▇▇▇▇▇) AG.
"Quarterly Payment Date" means the last day of each of March, June,
September and December, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing with June 30, 1998.
"Rate Protection Agreement" means, collectively, any interest rate or
currency swap agreements and interest or currency exchange rate cap, collar or
similar agreement entered into by the Company pursuant to the terms of this
Agreement under which the counterparty to such agreement is (or, at the time
such Rate Protection Agreement was entered into, was) a Lender or an Affiliate
of a Lender.
-44-
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in clause (b) of Section 2.9.
"Reimbursement Obligation" is defined in Section 2.8.3.
"Related Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans
and is managed or advised by the same fund manager or investment advisor as
such Lender or by an Affiliate of such manager or investment advisor.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 4.11.
"Replacement Notice" is defined in Section 4.11.
"Required Lenders" means, at any time, (i) prior to the Closing Date,
Lenders having at least 51% of the sum of the Revolving Loan Commitments and
Term Loan Commitments (as defined in the Original Credit Agreement), and (ii)
on and after the Closing Date, Lenders holding at least 51% of the Total
Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"Restricted Agreements" is defined in Section 7.2.10.
"Restricted Payments" is defined in Section 7.2.6.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary.
"Revolving Loan" means a U.S. Revolving Loan or a Foreign Currency
Revolving Loan.
"Revolving Loan Commitment" means a U.S. Revolving Loan Commitment or a
Foreign Currency Revolving Loan Commitment.
"Revolving Loan Commitment Amount" means the U.S. Revolving Loan
Commitment Amount or a Foreign Currency Revolving Loan Commitment Amount.
"Revolving Loan Commitment Termination Date" means the earliest of (i) the
sixth anniversary of the Original Closing Date, (ii) the date on which any
Revolving Loan Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2, and (iii) the date on which any Commitment Termination
Event occurs.
-45-
"Revolving Note" means a promissory note of any Borrower payable to any
Lender, substantially in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of such Borrower to such Lender resulting
from outstanding Revolving Loans in the applicable Currency, and also means all
other promissory notes accepted from time to time in substitution therefor or
renewal thereof.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Agents and all Affiliates of the Lenders which may be party to any Loan
Document (including any Rate Protection Agreement).
"Security Agreement" means, as the context may require, the Company
Security Agreement or the Subsidiary Security Agreement.
"Senior Subordinated Bridge Notes" means the $200,000,000 senior
subordinated bridge notes issued by the Company on the Original Closing Date.
"Senior Subordinated Bridge Note Issuance" means the issuance by the
Company of the Senior Subordinated Bridge Notes on May 1, 1998.
"Senior Subordinated Debt" means (i) the Senior Subordinated Bridge Notes,
(ii) any Permitted Refinancing thereof and (iii) up to an aggregate principal
amount of $15,000,000 of additional Indebtedness with terms and conditions
substantially similar to the Senior Subordinated Bridge Notes or any Permitted
Refinancing thereof.
"Senior Subordinated Debt Document" means all instruments, agreements or
other documents evidencing or governing any Senior Subordinated Debt or
pursuant to which any Senior Subordinated Debt has been issued (including the
Senior Subordinated Note Indenture).
"Senior Subordinated Note Indenture" is defined in Section 6.16.
"Solvent" means, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such Person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.
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"Spanish Loan" means, as the context may require, a Committed Spanish
Revolving Loan or a Spanish Term Loan.
"Spanish Pesetas" means the lawful currency of the Kingdom of Spain.
"Spanish Revolver Borrower" is defined in the preamble.
"Spanish Revolving Loan Commitment" is defined in clause (c) of Section
2.1.2.
"Spanish Revolving Loan Commitment Amount" means $5,000,000 (with Spanish
Revolving Loans to be denominated in Spanish Pesetas), as such amount may be
modified pursuant to the terms hereof.
"Spanish Term Borrower" means, in the event a Spanish Term Loan Commitment
is provided, a wholly-owned Subsidiary of the Company organized under the laws
of the Kingdom of Spain that is so designated by the Company.
"Spanish Term Loan Commitment" is defined in clause (d) of Section
2.1.1.
"Spanish Term Loan Commitment Amount" means, in the event a Spanish Term
Loan Commitment is provided, the amount (expressed in U.S. Dollars) set forth
as the committed amount in the Term Loan Commitment Addendum in respect of such
Spanish Term Loan Commitment (representing a commitment to make Term Loans
denominated in Spanish Pesetas), as such amount may be modified pursuant to the
terms hereof.
"Spanish Term Loan Commitment Termination Date" means the earlier of (i)
the date set forth in the Term Loan Commitment Addendum in respect of a Spanish
Term Loan Commitment as the last date on which Spanish Term Loans may be made
pursuant thereto and (ii) the date on which any Commitment Termination Event
occurs.
"Spanish Term Loans" is defined in clause (d) of Section 2.1.1.
"Stated Amount" of each Letter of Credit means, on any date and with
respect to any particular Letter of Credit, the total amount then available to
be drawn under such Letter of Credit.
"Stated Expiry Date" is defined in Section 2.8.
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"Stated Maturity Date" means (i) in the case of any Committed Loan (other
than a U.S. Term B Loan or Additional U.S. Term Loan), the sixth anniversary of
the Original Closing Date, (ii) in the case of any U.S. Term B Loan and any
Additional U.S. Term Loan, April 30, 2006 and (iii) in the case of any
Uncommitted Revolving Loan, the earlier of (x) the Stated Maturity Date for
Committed Revolving Loans and (y) the maturity date that shall have been agreed
between the applicable Foreign Borrower and the Lender or Lenders that shall
have made, or offered or agreed to make, such Uncommitted Revolving Loan, or,
in the case of any such day that is not a Business Day, the first Business Day
following such day.
"Stock Purchase Agreement" means the Share Sale and Purchase Agreement,
dated March 16, 1998 (as amended or otherwise modified from time to time in
accordance with Section 7.2.10) among BTR Australia Ltd. and Holdings.
"Subordination Provisions" is defined in Section 8.1.1.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interests) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interests) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"Subsidiary Guarantor" means, on the Original Closing Date, each U.S.
Subsidiary of the Company (other than the Trademark Subsidiary and any
Unrestricted Subsidiary) and, thereafter, each U.S. Subsidiary of the Company
that was required pursuant to the terms of the Original Credit Agreement or the
Existing Credit Agreement , or is required pursuant to clause (b) of Section
7.1.7, to execute and deliver a Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty, dated as of May 1, 1998,
executed and delivered by an Authorized Officer of each Subsidiary Guarantor
pursuant to the Original Credit Agreement, as such Guaranty may have been
supplemented pursuant to the Existing Credit Agreement and may be supplemented
from time to time by each future Subsidiary Guarantor pursuant to Section
7.1.7, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Subsidiary Pledge Agreement" means the Pledge Agreement, dated as of May
1, 1998, executed and delivered by an Authorized Officer of certain U.S.
Subsidiaries of the Company signatory thereto pursuant to the Original Credit
Agreement, as such Pledge Agreement may have been supplemented pursuant to the
Existing Credit Agreement and may be supplemented from time to time by each
future U.S. Subsidiary of the Company pursuant to Section 7.1.7, as amended,
supplemented, amended and restated or otherwise modified from time to time.
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"Subsidiary Security Agreement" means the Security Agreement, dated as of
May 1, 1998, executed and delivered by an Authorized Officer of the U.S.
Subsidiaries of the Company (other than the Trademark Subsidiary and any
Unrestricted Subsidiary) pursuant to the Original Credit Agreement, as such
Security Agreement may have been supplemented pursuant to the Existing Credit
Agreement and may be supplemented from time to time by each future U.S.
Subsidiary of the Company pursuant to Section 7.1.7, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Swing Line Lender" means the Administrative Agent in its capacity as
Swing Line Lender hereunder.
"Swing Line Loan" is defined in clause (g) of Section 2.1.2.
"Swing Line Loan Commitment" is defined in clause (g) of Section 2.1.2.
"Swing Line Loan Commitment Amount" means, on any date, $10,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of the Company payable to the
Swing Line Lender, in the form of Exhibit A-3 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Company to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to Section 9.4.
"Taxes" is defined in Section 4.6.
"Term Loan" means a U.S. Term A Loan, a U.S. Term B Loan, an Additional
U.S. Term Loan or a Foreign Currency Term Loan.
"Term Loan Commitment Addendum" means an addendum to this Agreement among
one or more Lenders and either the Spanish Term Borrower or the Company,
substantially in the form of Exhibit G-2 hereto, setting forth, among other
things, the commitment of such Lender or Lenders to make, and the obligation of
the Spanish Term Borrower or the Company to repay, Spanish Term Loans or
Additional U.S. Term Loans in accordance with this Agreement.
"Term Note" means a promissory note of any Borrower payable to the order
of any Lender, in the form of Exhibit A-2 hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of such Borrower to such Lender resulting from
outstanding Term Loans in the applicable Currency, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
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"Total Exposure Amount" means, at any time,
(a) with respect to any provision of this Agreement other
than the declaration of the acceleration of the maturity of all or any
portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable pursuant to Section 8.3, the sum of
(i) the aggregate principal amount of all Term Loans outstanding at
such time (included, in the case of any Foreign Currency Term Loan, at
the U.S. Dollar Equivalent thereof) and (ii) (x) the Total Revolving
Loan Commitment Amount if there are any Revolving Loan Commitments
then outstanding or (y) if all Revolving Loan Commitments shall have
expired or been terminated, the sum of (1) the aggregate principal
amount of all Revolving Loans and Swing Line Loans outstanding at such
time (included, in the case of any Foreign Currency Revolving Loan, at
the U.S. Dollar Equivalent thereof) and (2) the Letter of Credit
Outstandings at such time; and
(b) with respect to the declaration of the acceleration of
the maturity of all or any portion of the outstanding principal amount
of the Loans and other Obligations to be due and payable pursuant to
Section 8.3, the sum of (i) the aggregate principal amount of all
Loans outstanding at such time (included, in the case of any Foreign
Currency Loan, at the U.S. Dollar Equivalent thereof) and (y) the
Letter of Credit Outstandings at such time.
"Total Foreign Currency Revolving Loan Commitment Amount" means, at any
time, the aggregate of all Foreign Currency Revolving Loan Commitment Amounts
at such time.
"Total Revolving Loan Commitment Amount" means, with respect to the U.S.
Revolving Loan Commitments and all Foreign Currency Revolving Loan Commitments,
on any date, the excess of (i) $120,000,000, as such amount may be increased
from time to time pursuant to clause (h) of Section 2.1.2 or reduced from time
to time pursuant to Section 2.2, over (ii) the excess of (A) the aggregate
amount of Indebtedness in excess of $10,000,000 that is then outstanding
pursuant to clause (h) of Section 7.2.2 over (B) the aggregate amount of Letter
of Credit Outstandings in respect of Letters of Credit issued as credit support
to the Persons providing the loans or other extensions of credit permitted and
made pursuant to clause (h) of Section 7.2.2.
"Trademark Subsidiary" means a wholly-owned Restricted Subsidiary of the
Company that is designated as such by the Company and that conducts no business
activity other than that directly connected with the ownership or licensing of
trademarks, trade names, trade secrets, trade dress, service marks, patents,
copyrights, mask works and other intellectual property associated with the
Formica Business and the licensing of such trademarks, trade names, trade
secrets, trade dress, service marks, patents, copyrights, mask works and other
intellectual property associated with the Formica Business to the Company and
its Restricted Subsidiaries and the lending of the proceeds thereof to the
Company and its Restricted Subsidiaries.
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"Tranche" means, as the context may require, the Loans constituting U.S.
Term A Loans, U.S. Terms B Loans, Additional U.S. Term Loans, U.K. Term Loans,
Canadian Term Loans, Spanish Term Loans, U.S. Revolving Loans, Committed
Canadian Revolving Loans, Committed French Revolving Loans, Committed Spanish
Revolving Loans, Committed U.K. Revolving Loans, other Committed Foreign
Currency Revolving Loans in a particular Currency, Uncommitted Revolving Loans
of a particular Borrowing or Swing Line Loans.
"Transaction" means the Capital Transactions and the Acquisition
Transactions.
"Transaction Documents" means each of the Material Documents and all other
agreements, documents, instruments, certificates, filings, consents, approvals,
board of directors resolutions and opinions furnished pursuant to or in
connection with the Transaction or any other transaction contemplated hereby or
thereby, each as amended, supplemented, amended and restated or otherwise
modified from time to time as permitted in accordance with the terms hereof or
of any other Loan Document.
"Transaction Payments" means the retention bonus payments, performance
bonus payments and any fees, expenses and financing and other transaction costs
to be paid by the Company or any of its Restricted Subsidiaries in connection
with the Transaction, the PSM Transaction or any future acquisition permitted
under the terms of this Agreement (together with, in the case of the PSM
Transaction, one-time charges not exceeding $9,500,000 resulting from the write
down of assets acquired in the PSM Acquisition and the application by the
Company of accounting principles that differ from the accounting principles
applied to the PSM Business prior to consummation of the PSM Acquisition (net
of any income or gain resulting from any such application by the Company of
such accounting principles)).
"type" means, (i) relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a Fixed Rate Loan, and, (ii) relative to any
Uncommitted Revolving Loan, whether such Uncommitted Revolving Loan is an
Uncommitted Absolute Rate Revolving Loan or an Uncommitted LIBO Revolving Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York.
"U.K. Loan" means, as the context may require, a Committed U.K. Revolving
Loan or a U.K. Term Loan.
"U.K. Revolver Borrower" is defined in the preamble.
"U.K. Revolving Loan Commitment" is defined in clause (b) of Section
2.1.2.
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"U.K. Revolving Loan Commitment Amount" means $5,000,000 (with U.K.
Revolving Loans to be denominated in British Pounds), as such amount may be
modified pursuant to the terms hereof.
"U.K. Term Borrower" is defined in the preamble.
"U.K. Term Loans" is defined in clause (b) of Section 2.1.1.
"Uncommitted Absolute Interest Rate" is defined in clause (b)(v) of
Section 2.4.3.
"Uncommitted Absolute Rate Revolving Loan" means a loan made or to be made
by a Lender pursuant to an Absolute Rate Auction.
"Uncommitted Interest Margin" is defined in clause (b)(iv) of Section
2.4.3.
"Uncommitted Interest Quote" means an offer by a Lender to make an
Uncommitted Revolving Loan in accordance with Section 2.4.
"Uncommitted Interest Rate" means, with respect to any Uncommitted
Revolving Loan, the interest rate per annum for such Uncommitted Revolving
Loan, as agreed to and accepted by the applicable Foreign Borrower and the
Lender that shall have made or offered or agreed to make such Uncommitted
Revolving Loan, pursuant to Section 2.4.
"Uncommitted LIBO Revolving Loans" means a loan made or to be made by a
Lender pursuant to a LIBO Rate Auction.
"Uncommitted Revolving Borrowing Addendum" shall mean an addendum to this
Agreement executed by the Administrative Agent and a Non-U.S. Subsidiary,
substantially in the form of Exhibit G-3 hereto, delivered pursuant to clause
(c) of Section 5.3.
"Uncommitted Revolving Loan" means an Uncommitted Absolute Rate Revolving
Loan or an Uncommitted LIBO Revolving Loan.
"Uncommitted Revolving Loan Borrowing" shall mean a Borrowing of
Uncommitted Revolving Loans made by each of the Lenders whose offer to make
such Uncommitted Revolving Loans as part of such Borrowing has been accepted by
the applicable Foreign Borrower pursuant to Section 2.4.4.
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"Uncommitted Revolving Loan Borrowing Request" shall mean a loan request
and certificate requesting Uncommitted Revolving Loans, duly executed by an
Authorized Officer of the applicable Foreign Borrower, substantially in the
form of Exhibit B-2 hereto, delivered pursuant to Section 2.4.1.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by a resolution of the Board of Directors of the Company as an
Unrestricted Subsidiary, but only to the extent that such Subsidiary: (i) has
no Indebtedness other than Non-Recourse Debt; (ii) is not party to any
agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (iii) is a Person with respect
to which neither the Company nor any of its Restricted Subsidiaries has any
direct or indirect obligation (a) to subscribe for additional Capital Stock or
warrants, options or other rights to acquire Capital Stock or (b) to maintain
or preserve such Person's financial condition or to cause such Person to
achieve any specified levels of operating results; and (iv) has no Indebtedness
which has been guaranteed by, or otherwise directly or indirectly received any
credit support for any such Indebtedness from, the Company or any of its
Restricted Subsidiaries. If, at any time, any Unrestricted Subsidiary would
fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes hereof. The
Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation shall only be permitted if no Default or Event of Default
would be in existence following such designation.
"U.S. Dollar" and the sign "$" mean the lawful currency of the United
States.
"U.S. Dollar Equivalent" means the Exchange Equivalent in U.S. Dollars of
any amount of the applicable Foreign Currency.
"U.S. Issuer" means (i) Bankers Trust Company and its affiliates
including, without limitation, Deutsche Bank AG, New York Branch, in its
capacity as issuer of U.S. Letters of Credit, and (ii) any Lender as may be
designated by the Company (and consented to by the Agents and such Lender, such
consent by the Agents not to be unreasonably withheld) in its capacity as
issuer of U.S. Letters of Credit.
"U.S. Letter of Credit" means a Letter of Credit denominated in U.S.
Dollars.
"U.S. Letter of Credit Commitment" means a Letter of Credit Commitment in
respect of U.S. Letters of Credit.
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"U.S. Letter of Credit Commitment Amount" means, on any date the
Letter of Credit Commitment Amount on such date less the aggregate Foreign
Currency Letter of Credit Commitment Amount on such date.
"U.S. Letter of Credit Outstandings" means, on any date, an amount equal
to the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding U.S. Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of U.S. Letters of Credit.
"U.S. Loan" means, as the context may require, a U.S. Revolving Loan, a
U.S. Term A Loan, a U.S. Term B Loan or an Additional U.S. Term Loan.
"U.S. Revolving Loans" is defined in clause (a) of Section 2.1.2.
"U.S. Revolving Loan Commitment" is defined in clause (a) of Section
2.1.2.
"U.S. Revolving Loan Commitment Amount" means, on any date, the Total
Revolving Loan Commitment Amount on such date less the Total Foreign Currency
Revolving Loan Commitment Amount on such date.
"U.S. Subsidiary" means any Subsidiary of the Company that is incorporated
or organized in or under the laws of the United States or any state thereof.
"U.S. Term A Loans" is defined in clause (a) of Section 2.1.1.
"U.S. Term B Loans" means the loans denominated in U.S. Dollars originally
made to DS Holding pursuant to the DS Holding Credit Agreement and as to which
the Company has succeeded by operation of law as a result of the Mergers (as
more fully described in the recitals to the Amendment Agreement) in an
aggregate principal amount outstanding on the Amendment Effective Date of
$140,000,000.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees (or Persons performing similar functions) of any Person
(irrespective of whether or not, at the time, Capital Stock of any other class
or classes shall have, or might have, voting power by reason of the happening
of any contingency).
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"Waiver" means an agreement in favor of the Agents for the benefit of the
Lenders in form and substance reasonably satisfactory to the Agents.
"Welfare Plan" means a "welfare plan", as such term is defined in section
3(1) of ERISA, and to which the Company has any liability.
"wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or
more wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each other
Loan Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations.
(a) Unless otherwise specified, all accounting terms used herein or in
any other Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder (including under Section 7.2.4) shall be
made, and all financial statements required to be delivered hereunder or
thereunder shall be prepared, in accordance with those generally accepted
accounting principles ("GAAP") as in effect in the United States on December
31, 1997 and, unless otherwise expressly provided herein, shall be computed or
determined on a consolidated basis and without duplication; provided that to
the extent that any financial statements include a period prior to the DS
Holding Credit Agreement Closing Date, such financial statements may, as to
such period and with respect to PSM and its Subsidiaries, be prepared on a
basis consistent with the Base Financials (as defined in the DS Holding Credit
Agreement).
(b) For purposes of computing the Fixed Charge Coverage Ratio, Interest
Coverage Ratio, Leverage Ratio (and any financial calculations required to be
made or included within such ratios) as of the end of any Fiscal Quarter, all
components of such ratios (including Capital Expenditures, in the case of any
disposition, but excluding Capital Expenditures, in the case of any
acquisition) for the period of four Fiscal Quarters ending at the end of such
Fiscal Quarter shall include or exclude, as the case may be, without
duplication, such components of such ratios attributable
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to any business or assets that have been acquired or disposed of by the Company
or any of its Subsidiaries (including through mergers or consolidations, but
excluding the PSM Acquisition, the Contribution and the Mergers) after the
first day of such period of four Fiscal Quarters and prior to the end of such
period, as determined in good faith by the Company on a pro forma basis for
such period of four Fiscal Quarters as if such acquisition or disposition had
occurred on such first day of such period (including, whether or not such
inclusion would be permitted under GAAP or Regulation S-X of the Securities and
Exchange Commission, cost savings that would have been realized had such
acquisition occurred on such day (provided such inclusion, if not otherwise
permitted by GAAP, has been approved by a majority of the Board of Directors of
Holdings)).
(c) Unless the context otherwise requires, for purposes of determining the
outstanding principal amount of Loans or Letter of Credit Outstandings
denominated in a Foreign Currency (including without limitation pursuant to
Section 3.1.2), the term "pro rata" as used in this Agreement shall be based
upon the U.S. Dollar Equivalent of the particular Foreign Currency at the time
of determination.
(d) PSM and its Subsidiaries and each parent entity of PSM that was a
Subsidiary of FMH at any time from March 30, 2000 to the Amendment Effective
Date shall each be deemed to have been a Restricted Subsidiary of the Company
from and as of March 30, 2000 for purposes of determining hereunder the
aggregate amount of Capital Expenditures made by the Company and its Restricted
Subsidiaries, the aggregate amount of Net Disposition Proceeds and Casualty
Proceeds received by the Company and its Restricted Subsidiaries and the
aggregate amount of Restricted Payments described in clauses (c)(i) and
(c)(iii) of Section 7.2.6.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION II.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Sections 2.1.4, 2.1.5 and Article V),
(a) each Lender severally agrees to make Loans (other than
Swing Line Loans) pursuant to each of its Commitments, and the Swing
Line Lender agrees to make Swing Line Loans (to be denominated in U.S.
Dollars only) pursuant to the Swing Line Loan Commitment, in each case
as described in this Section 2.1 and each applicable Lender agrees to
accept Canadian BAs in accordance with the terms hereof; and
(b) each Issuer that has a Letter of Credit Commitment in
respect of any Currency severally agrees that it will issue Letters of
Credit denominated in such Currency pursuant to Section 2.1.3, and
each other Lender that has a Revolving Loan Commitment in respect of
such Currency severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to Section 2.8.1.
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Any term or provision of this Agreement or any other Loan Document (including
this Article II or Article III hereof) to the contrary notwithstanding, (i) all
Foreign Currency Loans shall be made in the applicable Foreign Currency and
shall be repaid in the same Foreign Currency in which such Loans were made and
(ii) all Foreign Currency Letters of Credit shall be issued, and all
Reimbursement Obligations in respect of Foreign Currency Letters of Credit
shall be paid, in the applicable Foreign Currency.
SECTION II.1.1. Term Loans
(a) on the Closing Date certain Lenders made loans denominated in
U.S. Dollars (relative to each such Lender, its "U.S. Term A Loans") to
the Company in an aggregate principal amount equal to $35,000,000, the
outstanding principal amount of the U.S. Term A Loans of each Lender as of
the Amendment Effective Date being as set forth on Schedule III hereto
under the column headed "U.S. Term A Loans Outstanding";
(b) on the Closing Date certain Lenders made loans denominated in
British Pounds (relative to each such Lender, its "U.K. Term Loans") to
the U.K. Term Borrower in an aggregate principal amount the U.S. Dollar
Equivalent of which was equal to $40,000,000, the outstanding principal
amount of the U.K. Term Loans of each Lender as of the Amendment Effective
Date being as set forth on Schedule III hereto under the column headed
"U.K. Term Loans Outstanding";
(c) on the Closing Date certain Lenders made loans (or accept
Canadian BAs) denominated in Canadian Dollars (relative to each such
Lender, its "Canadian Term Loans") to the Canadian Borrower in an
aggregate principal amount the U.S. Dollar Equivalent of which was
equal to $10,000,000, the outstanding principal amount of the Canadian
Term Loans of each Lender as of the Amendment Effective Date being as
set forth on Schedule III hereto under the column headed "Canadian
Term Loans Outstanding";
(d) in the event the Administrative Agent has received a Term
Loan Commitment Addendum in respect of a Spanish Term Loan Commitment,
subject to compliance with Section 2.1.4 and Section 5.2.1 and
compliance by the Spanish Term Borrower with the terms of Section
5.2.2, each Lender having a Percentage of the Spanish Term Loan
Commitment in excess of zero will, subject to satisfaction of the
conditions set forth in Section 5.3, make from time to time on any
Business Day or on a specified Business Day (as set forth in such Term
Loan Commitment Addendum), but prior to the Spanish Term Loan
Commitment Termination Date, loans denominated in Spanish Pesetas
(relative to such Lender, its "Spanish Term Loans") to the Spanish
Term Borrower equal to such Lender's Percentage, if any, of the
aggregate amount of the Borrowing or Borrowings of Spanish Term Loans
requested by the Spanish Term Borrower to be made on such day (with
the commitment of each such Lender described in this clause (d) herein
referred to as its "Spanish Term Loan Commitment"); and
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(e) on the DS Holding Credit Agreement Closing Date and the
Finland Acquisition Closing Date (as defined in the DS Holding Credit
Agreement), the PSM Lenders made Terms-B Loans, Term-C Loans and
Term-D Loans (each as defined in the DS Holding Credit Agreement) in
an aggregate principal amount equal to $110,000,000, and on the
Amendment Effective Date, the PSM Lenders made Term-A Loans (as
defined in the DS Holding Credit Agreement) in an aggregate principal
amount equal to $30,000,000, which Term-A Loans, Term-B Loans, Term-C
Loans and Term-D Loans are hereby reconstituted as U.S. Terms B Loans,
the outstanding principal amount of which U.S. Term B Loans held by
each Lender as of the Amendment Effective Date being as set forth in
Schedule III hereto under the column headed "U.S. Term B Loans
Outstanding".
No amounts paid or prepaid with respect to Term Loans may be reborrowed.
SECTION II.1.2. Revolving Loan Commitments and Swing Line Loan Commitment.
Subject to compliance by the Company with the terms of Sections 2.1.4 and
Section 5.2.1, and compliance by the applicable Borrower with the terms of
Section 5.2.2 (and, in the case of any Foreign Borrower other than the U.K.
Revolver Borrower, the Canadian Borrower, the French Revolver Borrower or the
Spanish Revolver Borrower, compliance by the applicable Foreign Borrower with
the terms of Section 5.3), from time to time on any Business Day occurring
concurrently with (or after) the Closing Date but prior to the Revolving Loan
Commitment Termination Date,
(a) each Lender that has a Percentage of the U.S. Revolving Loan
Commitment in excess of zero will make loans denominated in U.S. Dollars
(relative to such Lender, its "U.S. Revolving Loans") to the Company equal
to such Lender's Percentage, if any, of the aggregate amount of the
Borrowing or Borrowings of U.S. Revolving Loans requested by the Company
to be made on such day (with the commitment of each such Lender described
in this clause (a) herein referred to as its "U.S. Revolving Loan
Commitment"). On the terms and subject to the conditions hereof, the
Company may from time to time borrow, prepay and reborrow U.S. Revolving
Loans;
(b) each Lender that has a Percentage of the U.K. Revolving Loan
Commitment in excess of zero will make loans denominated in British Pounds
(relative to such Lender, its "Committed U.K. Revolving Loans") to the
U.K. Revolver Borrower equal to such Lender's Percentage, if any, of the
aggregate amount of the Borrowing or Borrowings of Committed U.K.
Revolving Loans requested by the U.K. Revolver Borrower to be made on such
day (with the commitment of each such Lender described in this clause (b)
herein referred to as its "U.K. Revolving Loan Commitment"). On the terms
and subject to the conditions hereof, the U.K. Revolver Borrower may from
time to time borrow, prepay and reborrow Committed U.K. Revolving Loans;
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(c) each Lender that has a Percentage of the Spanish Revolving
Loan Commitment in excess of zero will make loans denominated in Spanish
Pesetas (relative to such Lender, its "Committed Spanish Revolving Loans")
to the Spanish Revolver Borrower equal to such Lender's Percentage, if
any, of the aggregate amount of the Borrowing or Borrowings of Committed
Spanish Revolving Loans requested by the Spanish Revolver Borrower to be
made on such day (with the commitment of each such Lender described in
this clause (c) herein referred to as its "Spanish Revolving Loan
Commitment"). On the terms and subject to the conditions hereof, the
Spanish Revolver Borrower may from time to time borrow, prepay and
reborrow Committed Spanish Revolving Loans;
(d) each Lender that has a Percentage of the French Revolving
Loan Commitment in excess of zero will make loans denominated in French
Francs (relative to such Lender, its "Committed French Revolving Loans")
to the French Revolver Borrower equal to such Lender's Percentage, if any,
of the aggregate amount of the Borrowing or Borrowings of Committed French
Revolving Loans requested by the French Revolver Borrower to be made on
such day (with the commitment of each such Lender described in this clause
(d) herein referred to as its "French Revolving Loan Commitment"). On the
terms and subject to the conditions hereof, the French Revolver Borrower
may from time to time borrow, prepay and reborrow Committed French
Revolving Loans;
(e) each Lender that has a Percentage of the Canadian Revolving
Loan Commitment in excess of zero will make loans (or accept Canadian BAs)
denominated in Canadian Dollars (such loans and Canadian BAs relative to
such Lender, its "Committed Canadian Revolving Loans") to the Canadian
Borrower equal to such Lender's Percentage, if any, of the aggregate
amount of the Borrowing or Borrowings of Committed Canadian Revolving
Loans requested by the Canadian Borrower to be made on such day (with the
commitment of each such Lender described in this clause (e) herein
referred to as its "Canadian Revolving Loan Commitment"). On the terms and
subject to the conditions hereof, the Canadian Borrower may from time to
time borrow, prepay (or, in the case of Canadian BA's, cash collateralize)
and reborrow Committed Canadian Revolving Loans;
(f) in the event any other Foreign Currency Revolving Loan
Commitment is created pursuant to Section 2.5, each Lender having a
Percentage of such Foreign Currency Revolving Loan Commitment in excess of
zero will make Committed Foreign Currency Revolving Loans denominated in
the applicable Foreign Currency to the applicable Foreign Borrower equal
to such Lender's Percentage of the aggregate amount of the Borrowing or
Borrowings of Committed Foreign Currency Revolving Loans requested by such
Foreign Borrower under such Foreign Currency Revolving Loan Commitment to
be made on such day. On the terms and subject to the conditions hereof and
of the applicable Foreign Currency Revolving Loan Commitment Addendum, the
applicable Foreign Borrower may from time to time borrow, prepay and
reborrow Committed Foreign Currency Revolving Loans under such Foreign
Currency Revolving Loan Commitment;
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(g) the Swing Line Lender will make loans denominated in U.S.
Dollars ("Swing Line Loans") to the Company equal to the principal amount
of Swing Line Loans requested by the Company to be made on such day (with
the commitment of the Swing Line Lender described in this clause (g)
herein referred to as its "Swing Line Loan Commitment"). On the terms and
subject to the conditions hereof, the Company may from time to time
borrow, prepay and reborrow Swing Line Loans; and
(h) at any time that no Default has occurred and is continuing,
the Company may, by notice to the Agents, request that, on the terms and
subject to the conditions contained in this Agreement, the Lenders and/or
other financial institutions not then a party to this Agreement provide up
to an aggregate amount of $25,000,000 in additional loan commitments
consisting of revolving loan commitments denominated in any Currency or
Currencies (the "Additional Revolving Loan Commitments") and/or term loan
commitments denominated in U.S. Dollars (the "Additional U.S. Term Loan
Commitments", and collectively with the Additional Revolving Loan
Commitment, the "Additional Loan Commitments"); provided that, with
respect only to Additional U.S. Term Loan Commitments, the Company may
only make one request. Upon receipt of such notice, the Syndication Agent
shall use its best commercially reasonable efforts to arrange for the
Lenders or other financial institutions to provide such Additional Loan
Commitments; provided that, with respect to the Additional Revolving Loan
Commitments, the Syndication Agent will first offer each of the Lenders
that then has a Percentage of any Revolving Loan Commitments a pro rata
portion (based upon the Total Revolving Loan Commitment Amount at such
time) of any such Additional Revolving Loan Commitments and, with respect
to the Additional U.S. Term Loan Commitments, the Syndication Agent will
first offer each of the Lenders that then has outstanding U.S. Term B
Loans a pro rata portion (based upon the aggregate principal amount of
U.S. Term B Loans outstanding at such time) of any such Additional U.S.
Term Loan Commitments. Alternatively, any Lender may commit to provide the
full amount of the requested Additional Loan Commitments and then offer
portions of such Additional Loan Commitments to the other Lenders or other
financial institutions, subject to the proviso in the immediately
preceding sentence. Nothing contained in this clause (h) or otherwise in
this Agreement is intended to commit any Lender or any Agent to provide
any portion of any such Additional Loan Commitments.
If and to the extent that any Lenders and/or other financial
institutions agree, in their sole discretion, to provide any such
Additional Revolving Loan Commitments, (i) the Total Revolving Loan
Commitment Amount and the U.S. Revolving Loan Commitment Amount or the
Foreign Currency Revolving Loan
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as the case may be, shall be increased by the amount of
the additional U.S. Revolving Loan Commitments or Foreign Currency
Revolving Loan Commitments, as the case may be, agreed to be so provided,
(ii) the Percentages of the respective Lenders in respect of the U.S.
Revolving Loan Commitment and/or Foreign Currency Revolving Loan
Commitments, as the case may be, shall be proportionally adjusted, as
applicable, (iii) at such time and in such manner as the Company and the
Syndication Agent shall agree (it being understood that the Company and
the Agents will use their best commercially reasonable efforts to avoid
the prepayment or assignment of any Fixed Rate Loan on a day other than
the last day of the Interest Period applicable thereto), the Lenders shall
assign and assume outstanding Committed Revolving Loans and participations
in outstanding Letters of Credit so as to cause the amount of such
Committed Revolving Loans and participations in Letters of Credit held by
each Lender to conform to the respective percentages of the applicable
Revolving Loan Commitments of the Lenders and (iv) the Company shall
execute and deliver (or cause to be executed and delivered) any additional
Notes or other amendments or modifications to this Agreement or any other
Loan Document as the Agents may reasonably request.
If and to the extent that any Lenders and/or other financial
institutions agree, in their sole discretion, to provide any such
Additional U.S. Term Loan Commitments, (i) the Company shall deliver a
Term Loan Commitment Addendum to the Administrative Agent setting
forth the aggregate amount of the requested Additional U.S. Term Loan
Commitments and the Percentage of each Lender or other financial
institution providing such Additional U.S. Term Loan Commitments, (ii)
the interest rate applicable to Additional U.S. Term Loans shall be
mutually agreed upon at the time the Additional U.S. Term Loan
Commitments are provided, (iii) unless specifically set forth herein
or in the applicable Term Loan Commitment Addendum, all other terms of
the Additional U.S. Term Loans shall be identical to those of the U.S.
Term B Loans, and (iv) the Company shall execute and deliver any
additional Notes or other amendments or modifications to this
Agreement or any other Loan Document as the Agents may reasonably
request.
SECTION II.1.3. Letter of Credit Commitment. Subject to compliance by the
Company with the terms of Sections 2.1.5 and 5.2.1 and compliance by the
applicable Borrower with Section 5.2.2 (and, in the case of any Foreign
Borrower other than the U.K. Revolver Borrower, the Canadian Borrower, the
French Revolver Borrower or the Spanish Revolver Borrower, compliance by the
applicable Foreign Borrower with the terms of Section 5.3), from time to time
on any Business Day occurring concurrently with (or after) the Closing Date but
prior to the date that is 30 days prior to the Revolving Loan Commitment
Termination Date, the applicable Issuer will (i) issue one or more standby or
commercial letters of credit on a sight basis and denominated in the applicable
Currency (each referred to as a "Letter of Credit") for the account of the
Company or any of its Subsidiaries in the Stated Amount requested by the
applicable Borrower on such day, to expire, in the case of standby Letters of
Credit on a date not later than the date that is five Business Days prior to
the sixth anniversary of the Original Closing Date and not later than one year
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from the date of such issuance, and, in the case of commercial Letters of
Credit, on a date not later than the date that is thirty Business Days prior to
the sixth anniversary of the Original Closing Date and not later than 180 days
from the date of such issuance, or (ii) extend the Stated Expiry Date of an
existing standby or commercial Letter of Credit previously issued hereunder, in
the case of standby Letters of Credit, to a date not later than the date that
is five Business Days prior to the sixth anniversary of the Original Closing
Date and not later than one year from the date of the Stated Expiry Date, and,
in the case of commercial Letters of Credit, to a date not later than the date
that is thirty Business Days prior to the sixth anniversary of the Original
Closing Date and not later than 180 days from the Stated Expiry Date; provided
that a standby Letter of Credit may, if required by the beneficiary thereof,
contain "evergreen" provisions pursuant to which the Stated Expiry Date shall
be automatically extended, unless notice to the contrary shall have been given
to the beneficiary by the applicable Issuer of such Letter of Credit more than
a specified period prior to the then existing Stated Expiry Date.
SECTION II.1.4. Lenders Not Permitted or Required to Make the Loans. No
Lender shall be permitted or required to, and the applicable Borrower shall not
request any Lender to, make
(a) any Spanish Term Loan if, after giving effect thereto, the
aggregate original principal amount (calculated at the U.S. Dollar
Equivalent thereof) of all such Spanish Term Loans of such Lender would
exceed such Lender's Percentage of the Spanish Term Loan Commitment Amount;
(b) any U.S. Revolving Loan, Committed U.K. Revolving Loan,
Committed Spanish Revolving Loan, Committed French Revolving Loan,
Committed Canadian Revolving Loan or other Committed Foreign Currency
Revolving Loan if, after giving effect thereto, the aggregate
outstanding principal amount (calculated at the U.S. Dollar Equivalent
thereof in the case of any Foreign Currency Revolving Loans) of all of
such Lender's Committed Revolving Loans of such Tranche, together with
such Lender's Percentage of the aggregate amount of all Letter of
Credit Outstandings of such Tranche and, in the case of U.S. Revolving
Loans, such Lender's Percentage of the outstanding principal amount of
all Swing Line Loans, would exceed such Lender's applicable Percentage
of the then existing Revolving Loan Commitment Amount in respect of
such Tranche;
(c) in the case of the Swing Line Lender, any Swing Line Loan
if, after giving effect thereto, the aggregate outstanding principal
amount of all Swing Line Loans would exceed the lesser of (x) the then
existing Swing Line Loan Commitment Amount and (y) an amount equal to
(i) the then existing U.S. Revolving Loan Commitment Amount less (ii)
the sum of the aggregate outstanding principal amount of all U.S.
Revolving Loans and U.S. Letter of Credit Outstandings; or
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(d) any U.S. Revolving Loan, Swing Line Loan, Committed U.K.
Revolving Loan, Committed Spanish Revolving Loan, Committed French
Revolving Loan, Committed Canadian Revolving Loan or other Committed
Foreign Currency Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount (calculated at the U.S. Dollar
Equivalent thereof in the case of any Foreign Currency Revolving
Loans) of all Committed Revolving Loans, Swing Line Loans and Letter
of Credit Outstandings would exceed the then existing Total Revolving
Loan Commitment Amount.
SECTION II.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue, increase, extend or
renew any Letter of Credit if, after giving effect thereto, (a) the Letter of
Credit Outstandings would exceed the then existing Letter of Credit Commitment
Amount, (b) the aggregate amount of all Letter of Credit Outstandings in
respect of the applicable Tranche (plus, in the case of U.S. Dollar Letters of
Credit only, the aggregate principal amount of all Swing Line Loans then
outstanding) would exceed (x) the then existing Revolving Loan Commitment
Amount in respect of such Tranche less (y) the sum of the aggregate amount of
all Committed Revolving Loans in such Currency or (c) the aggregate amount of
all Letter of Credit Outstandings, together with the aggregate outstanding
principal amount (calculated at the U.S. Dollar Equivalent thereof in the case
of any Foreign Currency Revolving Loans) of all Committed Revolving Loans and
Swing Line Loans, would exceed the then existing Total Revolving Loan
Commitment Amount.
SECTION II.2. Optional Reduction of the Revolving Loan Commitment Amounts.
The Company may, from time to time on any Business Day occurring after the
Closing Date, voluntarily reduce any Revolving Loan Commitment Amount;
provided, however, that all such reductions shall require at least three
Business Days' prior notice to the Administrative Agent and be permanent, and
any partial reduction of any Revolving Loan Commitment Amount shall be in a
minimum amount of $500,000 or any larger integral multiple of $100,000. Any
such reduction of any Revolving Loan Commitment Amount which reduces such
Revolving Loan Commitment Amount below the Letter of Credit Commitment Amount
with respect to the same Currency, if applicable, (or, in the case of the U.S.
Revolving Loan Commitment only, the Swing Line Loan Commitment Amount) shall
result in an automatic and corresponding reduction of such Letter of Credit
Commitment Amount (or the Swing Line Loan Commitment Amount, as the case may
be) to an aggregate amount not in excess of the applicable Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of the
applicable Issuer (or the Swing Line Lender, if applicable); provided further,
however, that any such reduction in any such Letter of Credit Commitment Amount
or the Swing Line Loan Commitment Amount shall be reinstated to the extent
that, whether pursuant to clause (h) of Section 2.1.2, Section 2.5 or
otherwise, the corresponding Revolving Loan Commitment Amount is thereafter
increased.
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SECTION II.3. Borrowing Procedures and Funding Maintenance. Committed
Loans (other than Swing Line Loans) shall be made by the Lenders in accordance
with Section 2.3.1, and Swing Line Loans shall be made by the Swing Line Lender
in accordance with Section 2.3.2.
SECTION II.3.1. Term Loans and Revolving Loans. By delivering the
appropriate Committed Loan Borrowing Request to the Administrative Agent on or
before 12:00 noon, New York time (in the case of U.S. Loans or Canadian Loans)
or 11:00 a.m., London time (in the case of any Foreign Currency Loans other
than Canadian Loans), on a Business Day, a Borrower may from time to time
irrevocably request, on not less than one Business Day's notice (in the case of
Base Rate Loans) or three Business Days' notice (in the case of Fixed Rate
Loans) nor more than five Business Days' notice (in the case of any Committed
Loans), that a Committed Borrowing be made in a minimum amount of $500,000 (or,
in the case of Foreign Currency Revolving Loans, the multiple of 100,000 units
of the Currency of such Loans the U.S. Dollar Equivalent of which is nearest to
$500,000) or any larger integral multiple of $100,000 (or, in the case of
Foreign Currency Revolving Loans, the multiple of 50,000 units of the Currency
of such Loans the U.S. Dollar Equivalent of which is nearest to $100,000) or in
the unused amount of the applicable Commitment. No Committed Loan Borrowing
Request shall be required, and the minimum aggregate amounts specified under
this Section 2.3.1 shall not apply, in the case of U.S. Revolving Loans made
under clause (b) of Section 2.3.2 to refund Refunded Swing Line Loans or
Committed Revolving Loans deemed made under Section 2.8.2 in respect of
unreimbursed Disbursements. On the terms and subject to the conditions of this
Agreement, each Committed Borrowing shall be comprised of the type of Committed
Loans, shall be made in the Currency and shall be made on the Business Day,
specified in such Committed Loan Borrowing Request. On or before 11:00 a.m.,
New York time (11:00 a.m., London time, in the case of Foreign Currency Loans
other than Canadian Loans), on such Business Day, each Lender shall deposit
with the Administrative Agent same day funds in the applicable Currency in an
amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall make such funds available to
the applicable Borrower by wire transfer to the accounts such Borrower shall
have specified in its Committed Loan Borrowing Request. No Lender's obligation
to make any Committed Loan shall be affected by any other Lender's failure to
make any Committed Loan.
SECTION II.3.2. Swing Line Loans. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Committed
Loan Borrowing Request, to the Swing Line Lender on or before 1:00 p.m., New
York time, on the Business Day the proposed Swing Line Loan is to be made, the
Company may from time to time irrevocably request that a Swing Line Loan be
made by the Swing Line Lender in a minimum principal amount of $50,000 or any
larger integral multiple of $10,000. All Swing Line Loans shall be made in U.S.
Dollars as Base Rate Loans and shall not be entitled to be converted into LIBO
Rate Loans. The proceeds of each Swing Line Loan shall be made available by the
Swing Line Lender, by 2:00 p.m., New York time, on the Business Day telephonic
notice is received by it as provided in this clause (a), to the Company by wire
transfer to the account the Company shall have specified in its notice
therefor.
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(b) If (i) any Swing Line Loan shall be outstanding for more than three
Business Days or (ii) any Default shall occur and be continuing, each Lender
with a U.S. Revolving Loan Commitment (other than the Swing Line Lender)
irrevocably agrees that it will, at the request of the Swing Line Lender and
upon notice from the Administrative Agent, unless such Swing Line Loan shall
have been earlier repaid in full, make a U.S. Revolving Loan (which shall
initially be funded as a Base Rate Loan) in an amount equal to such Lender's
Percentage in respect of the U.S. Revolving Loan Commitments of the aggregate
principal amount of all such Swing Line Loans then outstanding (such
outstanding Swing Line Loans hereinafter referred to as the "Refunded Swing
Line Loans"); provided that the Swing Line Lender shall not request, and no
Lender with a U.S. Revolving Loan Commitment shall make, any Refunded Swing
Line Loan if, after giving effect to the making of such Refunded Swing Line
Loan, the sum of all Swing Line Loans and U.S. Revolving Loans made by such
Lender, plus such Lender's Percentage in respect of the U.S. Revolving Loan
Commitment of the U.S. Letter of Credit Outstandings, would exceed such
Lender's Percentage of the then existing U.S. Revolving Loan Commitment Amount.
On or before 12:00 noon, New York time, on the first Business Day following
receipt by each Lender of a request to make U.S. Revolving Loans as provided in
the preceding sentence, each such Lender with a U.S. Revolving Loan Commitment
shall deposit in an account specified by the Swing Line Lender the amount so
requested in same day funds and such funds shall be applied by the Swing Line
Lender to repay the Refunded Swing Line Loans. At the time the aforementioned
Lenders make the above referenced U.S. Revolving Loans, the Swing Line Lender
shall be deemed to have made, in consideration of the making of the Refunded
Swing Line Loans, a U.S. Revolving Loan in an amount equal to the Swing Line
Lender's Percentage in respect of the U.S. Revolving Loan Commitment of the
aggregate principal amount of the Refunded Swing Line Loans. Upon the making
(or deemed making, in the case of the Swing Line Lender) of any U.S. Revolving
Loans pursuant to this clause (b), the amount so funded shall become
outstanding as a U.S. Revolving Loan of such Lender and shall no longer be a
Swing Line Loan. All interest payable with respect to any U.S. Revolving Loans
made (or deemed made, in the case of the Swing Line Lender) pursuant to this
clause (b) shall be appropriately adjusted to reflect the period of time during
which the Swing Line Lender had outstanding Swing Line Loans in respect of
which such U.S. Revolving Loans were made. Each Lender's obligation (in the
case of Lenders with a U.S. Revolving Loan Commitment) to make the U.S.
Revolving Loans referred to in this clause (b) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Company or any
other Person for any reason whatsoever; (ii) the occurrence or continuance of
any Default; (iii) any adverse change in the condition (financial or otherwise)
of the Company or any other Obligor; (iv) the acceleration or maturity of any
Loans or the termination of any Commitment after the making of any Swing Line
Loan; (v) any breach of this Agreement or any other Loan Document by any
Borrower or any Lender; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
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SECTION II.4. Uncommitted Revolving Loans. Subject to compliance by the
Company with the terms of Section 2.1.4 and Section 5.2.1, and compliance by
the applicable Foreign Borrower with the terms of Section 5.2.2 (and, in the
case of any Foreign Borrower other than the U.K. Term Borrower, the U.K.
Revolver Borrower, the Canadian Borrower, the French Revolver Borrower and the
Spanish Revolver Borrower, compliance by the applicable Foreign Borrower with
the terms of Section 5.3), each Lender severally agrees that any Foreign
Borrower may request that Uncommitted Revolving Loan Borrowings be made to it
pursuant to this Section 2.4 from time to time on any Business Day prior to the
Revolving Loan Commitment Termination Date.
SECTION II.4.1. Uncommitted Revolving Loan Borrowing Request. (a) A
Foreign Borrower may request that a Borrowing of Uncommitted Revolving Loans be
made to it in any Foreign Currency by delivering to the Administrative Agent an
Uncommitted Revolving Loan Borrowing Request, which shall specify:
(i) the Foreign Currency in which each such Loan is requested
to be made (provided that such Foreign Borrower may only request and
receive Uncommitted Revolving Loans denominated in the Foreign
Currency of the country in which such Foreign Borrower's principal
business operations are located);
(ii) the principal amount of the Uncommitted Revolving Loan
Borrowing requested to be made to such Foreign Borrower (which shall
be in an aggregate principal amount the U.S. Dollar Equivalent of
which is not less than $500,000) and that, after giving effect to such
Uncommitted Revolving Loan Borrowing, the conditions set forth in
Section 5.2.1 applicable thereto shall have been satisfied;
(iii) the proposed date of each such proposed Uncommitted
Revolving Loan Borrowing, which shall be a Business Day;
(iv) in the case of a proposed Borrowing of Uncommitted
Revolving Loans that are to be Fixed Rate Loans, the proposed Interest
Period for each such proposed Borrowing, subject to the provisions of
the definition of Interest Period;
(v) the proposed Stated Maturity Date for the Uncommitted
Revolving Loans to be made pursuant to each such Uncommitted Revolving
Loan Borrowing; and
(vi) whether the Uncommitted Interest Quotes requested are to
set forth an Uncommitted Interest Margin or an Uncommitted Absolute
Interest Rate.
(b) Each Uncommitted Revolving Loan Borrowing Request shall be transmitted
to the Administrative Agent by telex or facsimile so as to be received by the
Administrative Agent (i) no later than 10:30 a.m., New York time (10:30 a.m.,
London time, in the case of Foreign Currency Loans other than
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Canadian Loans), on the fourth Business Day before the date of the Borrowing
proposed therein, in the case of a LIBO Rate Auction, or (ii) not later than
10:30 a.m., New York time, on the Business Day next preceding the date of the
Borrowing proposed therein, in the case of an Absolute Rate Auction, or, in any
such case, such other time or date as the Company and the Administrative Agent
shall have mutually agreed and shall have notified to the Lenders having a
Percentage of any Revolving Loan Commitment of greater than zero no later than
the date of the Uncommitted Revolving Loan Borrowing Request for the first LIBO
Rate Auction or Absolute Rate Auction for which such change is to be effective.
(c) No Foreign Borrower shall deliver to the Administrative Agent any
Uncommitted Revolving Loan Borrowing Request within five Business Days after
the delivery by such Foreign Borrower of any other Uncommitted Revolving Loan
Borrowing Request.
SECTION II.4.2. Invitation for Uncommitted Interest Quotes. Promptly upon
receipt of an Uncommitted Revolving Loan Borrowing Request delivered pursuant
to Section 2.4.1, but in no event later than the Business Day following such
receipt, the Administrative Agent shall send to each of the Lenders having a
Percentage of any Revolving Loan Commitment of greater than zero (by telecopy)
an Invitation for Uncommitted Interest Quotes (which shall include a copy of
each Uncommitted Revolving Loan Borrowing Request delivered pursuant to Section
2.4.1), which shall constitute an invitation on behalf of the relevant Foreign
Borrower to each such Lender to submit Uncommitted Interest Quotes offering to
make all or a portion of the Uncommitted Revolving Loan Borrowing requested by
such Foreign Borrower pursuant to Section 2.4.1. The Lenders may, but shall
have no obligation to, make such offers and such Foreign Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth
herein.
SECTION II.4.3. Submission and Contents of Uncommitted Interest Quotes.
(a) Each Lender having a Percentage of any Revolving Loan Commitment of greater
than zero may submit an Uncommitted Interest Quote containing an offer or
offers to make Uncommitted Revolving Loans in response to any Invitation for
Uncommitted Interest Quotes. Each Uncommitted Interest Quote must comply with
the requirements of this Section 2.4.3 and must be submitted to the
Administrative Agent (by telecopy) (i) not later than 2:00 p.m., New York time,
on the fourth Business Day before the proposed date of the Borrowing, in the
case of a LIBO Rate Auction, or (ii) not later than 9:30 a.m., New York time,
on the proposed date of the Borrowing, in the case of an Absolute Rate Auction,
or, in any such case, such other time or date as the Company and the
Administrative Agent shall have mutually agreed and shall have notified to the
Lenders having a Percentage of any Revolving Loan Commitment of greater than
zero not later than the date of the Uncommitted Revolving Loan Borrowing
Request for the first LIBO Rate Auction or Absolute Rate Auction for which such
change is to be effective; provided, however, that Uncommitted Interest Quotes
submitted by the Administrative Agent (or any affiliate of the Administrative
Agent) in the capacity of a Lender may be submitted, and may only be submitted,
if the Administrative Agent or such affiliate notifies the relevant Foreign
Borrower of the terms of the offer or offers contained therein not later than
(x) one hour before the deadline for the other Lenders, in the case of a LIBO
Rate Auction or (y) 15 minutes before the deadline for the other Lenders, in
the case of an Absolute Rate Auction.
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(b) Each Uncommitted Interest Quote shall be substantially in the form of
Exhibit G-5 hereto, shall comply with the provisions of this Section 2.4.3, and
shall in any case specify the following:
(i) the proposed date of Borrowing,
(ii) each Foreign Borrower to which the Lender would be willing to
make its Uncommitted Revolving Loans,
(iii) the principal amount (stated in the applicable Foreign
Currency) of the Uncommitted Revolving Loan for which each such offer
is being made, which principal amount (x) may be greater than or less
than the Revolving Loan Commitments of the quoting Lender, (y) shall
be in an amount the U.S. Dollar Equivalent of which is at least
$500,000 and (z) may not exceed the principal amount of Uncommitted
Revolving Loans for which offers were requested,
(iv) in the case of a LIBO Rate Auction, the margin above the
applicable LIBO Rate (the "Uncommitted Interest Margin") offered for
each such Uncommitted Revolving Loan, expressed as a percentage
(specified to the nearest 1/10,000 of 1%) to be added to or subtracted
from such LIBO Rate,
(v) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000 of 1%) (the
"Uncommitted Absolute Interest Rate") offered for each such
Uncommitted Revolving Loan, and
(vi) the identity of the quoting Lender;
provided, however, that any Uncommitted Interest Quote submitted by a Lender
pursuant to this Section 2.4.3 shall be irrevocable (subject to Articles V and
VIII hereof), unless otherwise consented to in writing by the Administrative
Agent acting upon the instructions of the applicable Foreign Borrower.
(c) Any Uncommitted Interest Quote that: (i) is not substantially in
the form of Exhibit G-5 hereto, as determined by the Administrative Agent in
its sole discretion, or does not specify all of the information required in
clause (b) above; (ii) contains qualifying, conditional or similar language; or
(iii) arrives after the time set forth in clause (a) above, may be disregarded
by the applicable Foreign Borrower and the Administrative Agent.
(d) The Administrative Agent (by telephone, promptly confirmed in
writing) shall promptly notify the relevant Foreign Borrower of the terms of
all Uncommitted Interest Quotes submitted by the Lenders in accordance with
this Section 2.4.3, as well as the identity of any such Lender.
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SECTION II.4.4. Uncommitted Revolving Loan Acceptance. (a) The relevant
Foreign Borrower shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers notified to it pursuant to clause (d) of Section
2.4.3 (x) not later than 4:00 p.m., New York time, on the fourth Business Day
before the proposed date of Borrowing, in the case of a LIBO Rate Auction, or
(y) not later than 10:30 a.m., New York time, on the proposed date of
Borrowing, in the case of an Absolute Rate Auction, or, in any such case, such
other time or date as the Company and the Administrative Agent shall have
mutually agreed and shall have given notice thereof to each Lender having a
Percentage of any Revolving Loan Commitment of greater than zero not later than
the date of the Uncommitted Revolving Loan Borrowing Request for the first LIBO
Rate Auction or Absolute Rate Auction for which such change is to be effective.
In the case of acceptance, such notice (a "Notice of Uncommitted Revolving
Borrowing") shall specify the aggregate principal amount of offers for each
requested maturity date and, in the case of LIBO Rate Loans, Interest Period
that are accepted.
(b) The relevant Foreign Borrower may accept any Uncommitted Interest
Quote in whole or in part; provided, however, that:
(i) the aggregate principal amount of each Uncommitted
Revolving Loan Borrowing may not exceed the applicable amount set
forth in the related Uncommitted Revolving Loan Borrowing Request;
(ii) the aggregate principal amount (calculated at the U.S.
Dollar Equivalent thereof) of each Uncommitted Revolving Loan Borrowing
must not be less than $500,000;
(iii) acceptance of offers may only be made on the basis of
ascending Uncommitted Interest Margins or Uncommitted Absolute
Interest Rates, as the case may be;
(iv) the relevant Foreign Borrower may not accept any offer that
fails to comply with the requirements of this Agreement; and
(v) the conditions set forth in Section 5.2.1 applicable to
such Uncommitted Revolving Loan Borrowing shall have been satisfied.
(c) Not later than 12:00 noon, New York time, on the date specified for
each Uncommitted Revolving Loan Borrowing hereunder, each Lender participating
therein shall, by wire transfer in same day funds, deposit to an account of the
applicable Foreign Borrower specified by such Foreign Borrower the amount of
the Uncommitted Revolving Loans to be made by it on such date in the applicable
Foreign Currency.
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(d) As soon as practicable after the Uncommitted Revolving Loan Borrowing
is made, the Administrative Agent shall notify each Lender having a Percentage
of any Revolving Loan Commitment greater than zero of (i) the amount of the
Uncommitted Revolving Loan Borrowing, (ii) the U.S. Dollar Equivalent of the
outstanding principal amount of all Foreign Currency Revolving Loans (in the
aggregate and for each Foreign Borrower) immediately after giving effect to
such Borrowing and (iii) the date on which such Uncommitted Revolving Loan
Borrowing was made.
SECTION II.5. Committed Foreign Currency Revolving Loans; Spanish Term
Loans. (a) At any time that no Event of Default has occurred and is continuing,
one or more Foreign Borrowers from time to time may enter into one or more
Foreign Currency Revolving Loan Commitment Addenda, each with one or more
Lenders that have, immediately prior to the effectiveness of such Foreign
Currency Revolving Loan Commitment Addendum, Percentages in respect of the U.S.
Revolving Loan Commitments of greater than zero, whereby such Lenders commit to
make, from time to time on and subsequent to the Closing Date but prior to the
Revolving Loan Commitment Termination Date, Committed Foreign Currency
Revolving Loans denominated in the Foreign Currency of the country in which
such Foreign Borrower's principal business operations are located; provided,
however, that after giving effect to any Foreign Currency Revolving Loan
Commitment created pursuant to this Section 2.5, the Total Foreign Currency
Revolving Loan Commitment Amount shall not exceed the Foreign Currency
Revolving Loan Limit. Any Foreign Currency Revolving Loan Commitment Addendum
entered into pursuant to this Section 2.5 shall become effective upon (and
subject to) the Company's delivery of a duly executed copy thereof to the
Administrative Agent pursuant to Section 11.2 hereof.
(b) Any Foreign Currency Revolving Loan Commitment Addendum entered into
pursuant to this Section 2.5 may, but need not, include a commitment (a
"Foreign Currency Letter of Credit Commitment") by an Issuer party thereto to
issue, and a commitment by the Lenders party thereto to participate in, from
time to time on and subsequent to the Closing Date but prior to the Revolving
Loan Commitment Termination Date, Foreign Currency Letters of Credit
denominated in the Foreign Currency of the country in which such Foreign
Borrower's principal business operations are located for the account of the
Foreign Borrower or Foreign Borrowers party thereto and their respective
Subsidiaries; provided, however, that in respect of any Foreign Currency Letter
of Credit Commitment so created under this Section 2.5, the Foreign Currency
Letter of Credit Commitment Amount shall not exceed the Foreign Currency
Revolving Loan Commitment Amount set forth in the applicable Foreign Currency
Revolving Loan Commitment Addendum;
(c) Each Foreign Currency Revolving Loan Commitment Addendum shall set
forth:
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(i) the Foreign Borrowers eligible to make Borrowings of
Committed Foreign Currency Revolving Loans (and, if Foreign Currency
Letters of Credit are therein contemplated, request the issuance of
Foreign Currency Letters of Credit) thereunder;
(ii) the Foreign Currency in which Committed Foreign Currency
Revolving Loans are to be made (and, if applicable, Foreign Currency
Letters of Credit are to be issued) thereunder;
(iii) the Foreign Currency Revolving Loan Commitment Amount under
such Foreign Currency Revolving Loan Commitment Addendum, which shall be
stated in U.S. Dollars;
(iv) the Percentage of each Lender party to such Foreign Currency
Revolving Loan Commitment Addendum in respect of such Foreign Currency
Revolving Loan Commitment Amount; and
(v) if such Foreign Currency Revolving Loan Commitment Addendum
includes Foreign Currency Letter of Credit Commitments,
(A) the Issuer in respect of the Foreign Currency Letters of
Credit to be issued thereunder;
(B) the Foreign Currency Letter of Credit Commitment Amount
under such Foreign Currency Revolving Loan Commitment Addendum, which
shall be stated in U.S. Dollars and shall not exceed the Foreign
Currency Revolving Loan Commitment Amount set forth in such Foreign
Currency Revolving Loan Commitment Addendum; and
(C) the Letter of Credit Reimbursement Obligation Rate in
respect of Foreign Currency Letters of Credit issued thereunder.
(d) Upon the effectiveness of any Foreign Currency Revolving Loan
Commitment Addendum pursuant to clause (a) of Section 2.5 or any reduction in
any Foreign Currency Revolving Loan Commitment pursuant to Section 2.2, the
Percentages of each Lender with a Percentage in respect of the applicable
Foreign Currency Revolving Loan Commitments or the U.S. Revolving Loan
Commitments in excess of zero shall be automatically adjusted so that, after
giving effect to such adjustment, the aggregate amount of the respective
Percentages of each Lender in respect of such Revolving Loan Commitments
multiplied by the respective Revolving Loan Commitment Amounts shall, before
and after giving effect to such Foreign Currency Revolving Loan Commitment
Addendum or reduction and such adjustment, be equal. Schedule III hereto sets
forth an illustration of the operation of this Section 2.5(d).
(e) If and when any adjustment is made to any Percentage of any Lender
pursuant to clause (d) at any time when any Committed Revolving Loans or
Letters of Credit are outstanding, at such time and in such manner as the
Company and the Syndication Agent shall agree (it being understood that the
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Company and the Agents will use all commercially reasonable efforts to avoid
prepayment or assignment of any Fixed Rate Loan on a day other than the last
day of the Interest Period applicable thereto), the Lenders shall assign and
assume outstanding Committed Revolving Loans and participations in outstanding
Letters of Credit held by each Lender to conform to the respective Percentages
of the respective Revolving Loan Commitments of the Lenders.
(f) At any time that no Event of Default has occurred and is continuing,
the Spanish Term Borrower may enter into a Term Loan Commitment Addendum with
one or more Lenders or other financial institutions, whereby such Lenders or
other financial institutions commit to make Spanish Term Loans denominated in
Spanish Pesetas (and, in the case of any such financial institution that is not
theretofore a Lender, to be a Lender hereunder). Any Term Loan Commitment
Addendum entered into pursuant to this Section 2.5 shall become effective upon
(and subject to) the Company's delivery of a duly executed copy thereof to the
Administrative Agent pursuant to Section 11.2 hereof.
(g) A Term Loan Commitment Addendum with respect to Spanish Term Loans
shall set forth:
(i) the Spanish Term Borrower eligible to make Borrowings of
Spanish Term Loans thereunder;
(ii) the Spanish Term Loan Commitment Amount under such Term
Loan Commitment Addendum, which shall be stated in U.S. Dollars and
shall not exceed the aggregate principal amount of the then
outstanding Term Loans; and
(iii) the Percentage of each Lender party to such Term Loan
Commitment Addendum in respect of such Foreign Currency Term Loan
Commitment Amount.
SECTION II.6. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time (in the case of U.S. Loans or Canadian Loans) or 11:00
a.m., London time (in the case of any Foreign Currency Loans other than
Canadian Loans), on a Business Day, a Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice (in the case of a
conversion of Fixed Rate Loans into Base Rate Loans) or three Business Days'
notice (in the case of a continuation of Fixed Rate Loans or a conversion of
Base Rate Loans into Fixed Rate Loans) nor more than five Business Days' notice
(in the case of any Loans) that all, or any portion in a minimum amount of
$500,000 (or, in the case of Foreign Currency Loans, the multiple of 100,000
units of the Currency of such Loans the U.S. Dollar Equivalent of which is
nearest to $500,000) or any larger integral multiple of $100,000 (or, in the
case of Foreign Currency Loans, the multiple of 50,000 units of the Currency of
such Loans the U.S. Dollar Equivalent of which is nearest to $100,000), of any
Borrowing of Committed Loans be, in the case of Base Rate Loans, converted into
Fixed Rate Loans or, in the case of Fixed Rate Loans, continued as Fixed Rate
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Loans or, in the case of U.S. Loans or Canadian Loans only, converted to Base
Rate Loans; provided, however, that, in the absence of delivery of a
Continuation/Conversion Notice with respect to any Committed Loan that is a
Fixed Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such Fixed Rate Loan shall, (A)
in the case of a Fixed Rate Loan that is a Foreign Currency Loan (other than a
Canadian Loan), automatically be continued as a Fixed Rate Loan with an
Interest Period of one month and (B) in the case of a Fixed Rate Loan that is a
U.S. Loan or a Canadian Loan, automatically convert to a Base Rate Loan, in
each case on such last day; provided, further, however, that (x) each such
conversion or continuation shall be pro rated among the applicable outstanding
Loans of the relevant Lenders, and (y) no portion of the outstanding principal
amount of any Loans may be continued as, or be converted into, Fixed Rate Loans
when any Default has occurred and is continuing.
SECTION II.6.1. Converting Canadian Prime Rate Loans to, or Continuing
Canadian BAs as, Canadian BAs. Provided that the Canadian Borrower has, by
giving notice to the Administrative Agent in accordance with Section 2.6,
requested the Lenders to accept its drafts to replace all or a portion of an
outstanding Canadian Loan, then each Lender shall, on the date of conversion or
continuation, as applicable, and concurrent with the payment by the Canadian
Borrower to the Administrative Agent on behalf of the Lenders of an amount
equal to the difference between the principal or face amount of such
outstanding Canadian Loan or the portion thereof which is being converted or
continued and the aggregate Notional BA Proceeds with respect to the drafts to
be accepted by the Lenders, accept the Canadian Borrower's draft or drafts
having an aggregate face amount equal to its Percentage of the aggregate
principal or face amount of such Canadian Loan or the portion thereof which is
being converted or continued, such acceptance to be in accordance with Section
2.11.
SECTION II.6.2. Converting Canadian BAs to Canadian Prime Rate Loans. Each
applicable Lender shall, at the end of an Interest Period with respect to
Canadian BAs which such Lender has accepted, pay to the holder thereof the face
amount of such Canadian BA. Provided that the Canadian Borrower has, by giving
notice to the Administrative Agent in accordance with Section 2.6, requested a
Lender to convert all or a portion of outstanding maturing Canadian BAs into a
Canadian Prime Rate Loan, such Lender shall, upon the end of the current
Interest Period with respect to such Canadian BAs and the payment by such
Lender to the holders of such Canadian BAs of the aggregate face amount
thereof, be deemed to have made to the Canadian Borrower the Canadian Prime
Rate Loan into which the matured Canadian BAs or a portion thereof are
converted in the aggregate principal amount equal to its Percentage of the
aggregate face amount of the matured Canadian BAs or the portion thereof which
are being converted.
SECTION II.7. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as
such action does not result in increased costs to the applicable Borrower;
provided, however, that such LIBO Rate Loan shall nonetheless be deemed to have
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been made and to be held by such Lender, and the obligation of the applicable
Borrower to repay such LIBO Rate Loan shall nevertheless be to such Lender for
the account of such foreign branch, Affiliate or international banking
facility; provided, further, however, that, except for purposes of determining
whether any such increased costs are payable by the applicable Borrower, such
Lender shall cause such foreign branch, Affiliate or international banking
facility to comply with the applicable provisions of clause (b) of Section 4.6
with respect to such LIBO Rate Loan. In addition, each Borrower hereby consents
and agrees that, for purposes of any determination to be made for purposes of
Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender
elected to fund all LIBO Rate Loans by purchasing deposits in the relevant
Currency in its LIBOR Office's interbank Eurodollar market.
SECTION II.8. Issuance Procedures. By delivering to the applicable Issuer
and the Administrative Agent an Issuance Request on or before 12:00 noon, New
York time, on a Business Day, any Borrower as to which any Issuer has a Letter
of Credit Commitment may, from time to time irrevocably request, on not less
than three nor more than ten Business Days' notice (or such shorter or longer
notice as may be acceptable to such Issuer), in the case of an initial issuance
of a Letter of Credit, and not less than three nor more than ten Business Days'
notice (unless a shorter or longer notice period is acceptable to such Issuer)
prior to the then existing Stated Expiry Date of a Letter of Credit, in the
case of a request for the extension of the Stated Expiry Date of a Letter of
Credit, that such Issuer issue, or extend the Stated Expiry Date of, as the
case may be, an irrevocable Letter of Credit on behalf of such Borrower
denominated in the applicable Currency (whether issued for the account of or on
behalf of such Borrower or any of its Subsidiaries) in such form as may be
requested by such Borrower and approved by such Issuer, for the purposes
described in Section 7.1.9. Notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, each Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement paid under a Letter of Credit, and it
shall be deemed to be the obligor for purposes of each such Letter of Credit
issued hereunder by such Issuer at the request of such Borrower (whether the
account party on such Letter of Credit is such Borrower or a Subsidiary of such
Borrower). Upon receipt of an Issuance Request, the Administrative Agent shall,
in accordance with its usual business practices, notify the applicable Issuer
and each Lender that has a Percentage of more than zero in respect of the
relevant Revolving Loan Commitments thereof. Each Letter of Credit shall by its
terms be stated to expire on a date (its "Stated Expiry Date"), in the case of
standby Letters of Credit, not later than the date that is five Business Days
prior to the sixth anniversary of the Original Closing Date and not later than
one year from the date of such issuance, and, in the case of commercial Letters
of Credit, not later than the date that is thirty Business Days prior to the
sixth anniversary of the Original Closing Date and not later than 180 days from
the date of such issuance; provided that, notwithstanding the terms of clause
(ii) above, a Letter of Credit may, if required by the beneficiary thereof,
contain "evergreen" provisions pursuant to which the Stated Expiry Date shall
be automatically extended, unless notice to the contrary shall have been given
to the beneficiary by the applicable Issuer more than a specified period prior
to the then existing Stated Expiry Date. The applicable Issuer will make
available to the beneficiary thereof the original of each Letter of Credit
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which it issues hereunder. In the event that the Issuer is other than the
Administrative Agent, such Issuer will send by facsimile transmission to the
Administrative Agent, promptly on the first Business Day of each week, its
daily maximum amount available to be drawn under the Letters of Credit issued
by such Issuer for the previous week. The Administrative Agent shall deliver to
each Lender upon each calendar month end, and upon each Letter of Credit Fee
payment, a report (to the extent received from the applicable Issuer in respect
of Foreign Currency Letters of Credit) setting forth the daily maximum amount
available to be drawn for all Issuers during such period.
SECTION II.8.1. Other Lenders' Participation. Upon the issuance (or deemed
issuance) or increase of each Letter of Credit issued by an Issuer pursuant
hereto, and without further action, each Lender (other than such Issuer) that
has a Percentage of more than zero in respect of the relevant Revolving Loan
Commitments shall be deemed to have irrevocably purchased from such Issuer, to
the extent of its Percentage in respect of the applicable Revolving Loan
Commitments and such Issuer shall be deemed to have irrevocably granted and
sold to such Lender a participation interest in such Letter of Credit
(including the Contingent Liability, as the same may have been amended in
amount or duration from time to time, and any Reimbursement Obligation and all
rights with respect thereto), and such Lender shall, to the extent of its
Percentage in respect of the applicable Revolving Loan Commitments be
responsible for reimbursing promptly (and in any event within one Business Day)
the applicable Issuer for Reimbursement Obligations which have not been
reimbursed by the applicable Borrower in accordance with this Section 2.8. In
addition, such Lender shall, to the extent of its Percentage in respect of the
applicable Revolving Loan Commitments, be entitled to receive from the
Administrative Agent a ratable portion of the Letter of Credit Fees payable
pursuant to Section 3.3.3 with respect to each Letter of Credit and of interest
payable pursuant to Section 3.2 with respect to any Reimbursement Obligation.
To the extent that any Lender has reimbursed an Issuer for a Disbursement as
required by this Section, such Lender shall be entitled to receive from the
Administrative Agent its ratable portion of any amounts subsequently received
(from the applicable Borrower or otherwise) in respect of such Disbursement.
SECTION II.8.2. Disbursements; Conversion to Revolving Loans. Each
Issuer will notify the applicable Borrower and the Administrative Agent
promptly of the presentment for payment under any Letter of Credit issued by
such Issuer, together with notice of the date (the "Disbursement Date") such
payment shall be made (each such payment, a "Disbursement"). Subject to the
terms and provisions of such Letter of Credit and this Agreement, such Issuer
shall make such payment to the beneficiary (or its designee) of such Letter of
Credit. Prior to 12:30 p.m., New York time, on the first Business Day following
the Disbursement Date (the "Disbursement Due Date"), the applicable Borrower
will reimburse the Administrative Agent, for the account of such Issuer, for
all amounts which such Issuer has disbursed under such Letter of Credit,
together with interest thereon at the rate per annum otherwise applicable to
U.S. Revolving Loans made as Base Rate Loans (in the case of U.S. Letters of
Credit) or at the Letter of Credit Reimbursement Obligation Rate in respect of
such Letter of Credit (in the case of any other Letter of Credit) from and
including the Disbursement Date to but excluding the Disbursement Due Date and,
thereafter (unless such Disbursement is converted into a Committed Revolving
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Loan on the Disbursement Due Date), at a rate per annum equal to the rate per
annum then in effect with respect to overdue U.S. Revolving Loans made as Base
Rate Loans pursuant to Section 3.2.2 (in the case of U.S. Letters of Credit) or
at a rate per annum equal to the Letter of Credit Reimbursement Obligation Rate
in respect of such Letter of Credit plus 2% (in the case of any other Letter of
Credit) for the period from the Disbursement Due Date through the date of such
reimbursement; provided, however, that, if no Default shall have then occurred
and be continuing, unless the applicable Borrower has notified the
Administrative Agent no later than one Business Day prior to the Disbursement
Due Date that it will reimburse such Issuer for the applicable Disbursement,
then the amount of the Disbursement shall be deemed to be a Borrowing of
Committed Revolving Loans in the applicable Currency which, in the case of U.S.
Dollars, shall constitute Base Rate Loans and, in the case of any Foreign
Currency, shall bear interest at the Letter of Credit Reimbursement Obligation
Rate in respect of such Letter of Credit, and following the giving of notice
thereof by the Administrative Agent to the applicable Lenders, each Lender with
a Percentage of greater than zero in respect of the applicable Revolving Loan
Commitments (other than such Issuer) will deliver to such Issuer on the
Disbursement Due Date immediately available funds in the applicable Currency in
an amount equal to such Lender's applicable Percentage of such Borrowing. Each
conversion of Disbursement amounts into Committed Revolving Loans shall
constitute a representation and warranty by the applicable Borrower that on the
date of the making of such Committed Revolving Loans all of the statements set
forth in Section 5.2.1 are true and correct.
SECTION II.8.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of a Borrower under Section 2.8.2 to reimburse an Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Committed Revolving Loan pursuant to Section 2.8.2, and, upon the failure of
any Borrower to reimburse an Issuer and the giving of notice thereof by the
Administrative Agent to the applicable Lenders, each Lender's (to the extent it
has a Percentage of greater than zero in respect of the applicable Revolving
Loan Commitment Amount) obligation under Section 2.8.1 to reimburse such Issuer
or fund its Percentage of any Disbursement converted into a Committed Revolving
Loan, shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which such
Borrower or such Lender, as the case may be, may have or have had against such
Issuer or any such Lender, including any defense based upon the failure of any
Disbursement to conform to the terms of the applicable Letter of Credit (if, in
the applicable Issuer's good faith opinion, such Disbursement is determined to
be appropriate) or any non-application or misapplication by the beneficiary of
the proceeds of such Letter of Credit; provided, however, that after paying in
full its Reimbursement Obligation hereunder, nothing herein shall adversely
affect the right of such Borrower or such Lender, as the case may be, to
commence any proceeding against the applicable Issuer for any wrongful
Disbursement made by such Issuer under a Letter of Credit as a result of acts
or omissions constituting gross negligence or willful misconduct on the part of
such Issuer determined by a court of competent jurisdiction in a final
proceeding.
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SECTION II.8.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in clauses (b)
through (d) of Section 8.1.9 or, with notice from the Administrative Agent
acting at the direction of the Required Lenders, upon the occurrence and during
the continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is
undrawn and available under all Letters of Credit issued at the
request of any Borrower and outstanding shall, without demand upon or
notice to such Borrower or any other Person, be deemed to have been
paid or disbursed by the applicable Issuer under such Letters of
Credit (notwithstanding that such amount may not in fact have been so
paid or disbursed); and
(b) upon notification by the Administrative Agent to the
applicable Borrower of its obligations under this Section, such
Borrower shall be immediately obligated to reimburse the applicable
Issuer for the amount deemed to have been so paid or disbursed by the
applicable Issuer.
Any amounts so payable by any Borrower pursuant to this Section shall be
deposited in cash in the applicable Currency with the Administrative Agent (or
at the direction of the Administrative Agent with respect to any Foreign
Currency) and held as collateral security for the Obligations in connection
with the Letters of Credit issued at the request of such Borrower by the
applicable Issuer. At such time as the Events of Default giving rise to the
deemed disbursements hereunder shall have been cured or waived, the
Administrative Agent shall return to the applicable Borrower all amounts then
on deposit with or at the direction of the Administrative Agent pursuant to
this Section, together with accrued interest at the Federal Funds Rate, which
have not been applied to the satisfaction of such Obligations.
SECTION II.8.5. Nature of Reimbursement Obligations. Each Borrower and, to
the extent set forth in Section 2.8.1, each Lender with an applicable Revolving
Loan Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. No Issuer (except to the extent of
its own gross negligence or willful misconduct determined by a court of
competent jurisdiction in a final proceeding) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason;
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(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Lender with an applicable
Revolving Loan Commitment hereunder. In furtherance and extension and not in
limitation or derogation of any of the foregoing, any action taken or omitted
to be taken by any Issuer in good faith (and not constituting gross negligence
or willful misconduct determined by a court of competent jurisdiction in a
final proceeding) shall be binding upon the applicable Borrower, each Obligor
and each such Lender, and shall not put such Issuer under any resulting
liability to such Borrower, any Obligor or any such Lender, as the case may be.
SECTION II.8.6. Deemed Issuance of Existing Letters of Credit. All Letters
of Credit outstanding under the Existing Credit Agreement on the Closing Date
shall, for all purposes hereof, be deemed to be Letters of Credit issued
hereunder on the Closing Date.
SECTION II.9. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of each
Borrower to such Lender resulting from each Loan made by such Lender
to such Borrower, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. In the
case of a Lender that does not request, pursuant to clause (b)(ii)
below, execution and delivery of a Note or Notes evidencing the Loans
made by such Lender to a Borrower, such account or accounts shall, to
the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on
such Borrower absent manifest error; provided, however, that the
failure of any Lender to maintain such account or accounts shall not
limit or otherwise affect any Obligations of any Borrower or any other
Obligor.
(b)(i) Each Borrower hereby designates the Administrative
Agent to serve as its agent, solely for the purpose of this clause
(b), to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitments, the Loans
made by each Lender to each Borrower and each repayment in respect of
the principal amount of the Loans of each Lender to each Borrower and
together with which the Administrative Agent shall retain a copy of
each Foreign Currency Revolving Loan Commitment Addendum delivered to
the Administrative Agent pursuant to Section 2.5 and each Lender
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Assignment Agreement delivered to the Administrative Agent pursuant to
Section 11.11.1. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrowers' obligations in respect of
such Loans. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrowers, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan (and, as
provided in clause (ii), the Note evidencing such Loan, if any) is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. Any
Commitment of any Lender and the Loans made pursuant thereto may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer in the Register. Any
assignment or transfer of any Commitment of any Lender or the Loans
made pursuant thereto shall be registered in the Register only upon
delivery to the Administrative Agent of a Lender Assignment Agreement
duly executed by the assignor thereof. No assignment or transfer of
any Commitment of any Lender or the Loans made pursuant thereto shall
be effective unless such assignment or transfer shall have been
recorded in the Register by the Administrative Agent as provided in
this Section.
(ii) Each Borrower agrees that, upon the request by any
Lender to the Administrative Agent, such Borrower will execute and
deliver to such Lender, as applicable, an applicable Revolving Note,
Term Note and Swing Line Note evidencing the Loans made by such Lender
to such Borrower. Each Borrower hereby irrevocably authorizes each
Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes of such Borrower (or on any
continuation of such grid), which notations, if made, shall evidence,
inter alia, the date of, the outstanding principal amount of, and the
interest rate and Interest Period applicable to the Loans evidenced
thereby. Such notations shall, to the extent not inconsistent with the
notations made by the Administrative Agent in the Register, be
conclusive and binding on the Borrower that shall have issued such
Note absent manifest error; provided, however, that the failure of any
Lender to make any such notations shall not limit or otherwise affect
any Obligations of the Borrowers or any other Obligor. The Loans
evidenced by any such Note and interest thereon shall at all times
(including after assignment pursuant to Section 11.11.1) be
represented by one or more Notes payable to the order of the payee
named therein and its registered assigns. A Note and the obligation
evidenced thereby may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer of such
Note and the obligation evidenced thereby in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or
part of an obligation evidenced by a Note shall be registered in the
Register only upon surrender for registration of assignment or
transfer of the Note evidencing such obligation, accompanied by a
Lender Assignment Agreement duly executed by the assignor thereof, and
thereupon, if requested by the assignee, one or more new Notes shall
be issued by the applicable Borrower to the designated assignee and
the old Note shall be returned by the Administrative Agent to the
applicable Borrower marked "exchanged". No assignment of a Note and
the obligation evidenced thereby shall be effective unless it shall
have been recorded in the Register by the Administrative Agent as
provided in this Section.
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SECTION II.10. European Monetary Union. If, as a result of the
implementation of the European Monetary Union (the "EMU"), (a) any Foreign
Currency ceases to be lawful currency of the nation issuing the same and is
replaced by a European common currency (the "Euro"), then any amount payable
hereunder in such replaced Foreign Currency by any Lender or any Borrower in
respect of a Credit Extension shall instead be payable in Euros and the amount
so payable shall be determined by translating the amount payable in such
Foreign Currency to Euros at the exchange rate recognized by the European
Central Bank for the purpose of implementing the EMU; and (b) any nation
issuing a Foreign Currency also issues or recognizes both the Foreign Currency
and the Euro as the national currency, any amounts payable hereunder by any
Lender or any Borrower in respect of a Credit Extension in such Foreign
Currency shall be payable either in such Foreign Currency or the Euro
(determined in accordance with the method described in the foregoing clause
(a)), upon notice delivered to the applicable Lender. Prior to the
applicability of clause (a) or (b) of the preceding sentence, each amount
payable hereunder in any Foreign Currency will continue to be payable only in
such Foreign Currency. Each of the Borrowers and the Lenders agree, at the
request of any such party at the time of, or at any time following, the
implementation of the EMU, to enter into good faith negotiations concerning an
agreement to amend this Agreement in such manner as any such party shall
reasonably request in order to reflect the implementation of the EMU and to
place the parties hereto in the position they would have been in had the EMU
not been implemented. Notwithstanding anything to the contrary in Section 11.1,
in the event that the Borrowers and the Lenders are able to agree to an
amendment of this Agreement, which amendment solely addresses issues raised by
the EMU, this Agreement, as of such amendment's effective date, shall be deemed
to be amended by such amendment without the requirement of any further action
hereunder by the Lenders or the Required Lenders, as the case may be.
SECTION II.11. Canadian BAs. Not in limitation of any other provision of
this Agreement, but in furtherance thereof, the provisions of this Section 2.11
shall further apply to the acceptance, rolling over and conversion of Canadian
BAs.
SECTION II.11.1. Funding of Canadian BAs. If the Administrative Agent
receives a Borrowing Request or a Continuation/Conversion Notice from the
Canadian Borrower requesting a Borrowing or a rollover of or a conversion into
a Canadian Loan by way of Canadian BAs, the Administrative Agent shall notify
each of the applicable Lenders, prior to 11:00 a.m., Toronto time, on the
second Business Day prior to the date of such Credit Extension, of such request
and of each such Lender's Percentage of such Canadian Loan. Each applicable
Lender shall, not later than 11:00 a.m., Toronto time, on the date of each
Canadian Loan by way of Canadian BAs (whether in respect of the Credit
Extension or pursuant to a rollover or conversion), accept drafts of the
Canadian Borrower which are presented to it for acceptance and which have an
aggregate face amount equal to such Lender's Percentage of the total Credit
Extension being made available by way of Canadian BAs on such date. With
respect to each drawdown of, rollover of or conversion into Canadian BAs, each
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such Lender shall not be required to accept any draft which has a face amount
which is not in an integral multiple of Cdn $100,000. Concurrent with the
acceptance of drafts of the Canadian Borrower as aforesaid, each applicable
Lender shall make available to the Administrative Agent the aggregate Notional
BA Proceeds with respect to the Canadian BAs being purchased by such Lender
(net of the aggregate amount required to repay such Lender's outstanding
Canadian BAs that are maturing on such date and/or Canadian Prime Rate Loans of
such Lender that are being converted on such date). The Administrative Agent
shall, upon fulfillment by the Canadian Borrower of the terms and conditions
set forth in Article V, make such amount, if any, received from the applicable
Lenders available to the Canadian Borrower on the date of such Credit Extension
by crediting the designated account of the Canadian Borrower. Each Canadian BA
to be accepted by any Lender shall be accepted by such Lender at its Domestic
Office located in Canada.
SECTION II.11.2. Presigned Draft Forms. To enable the applicable Lenders
to accept Canadian BAs, the Canadian Borrower shall supply each such Lender
with such number of drafts as such Lender may reasonably request, duly endorsed
and executed on behalf of the Canadian Borrower. Each Lender agrees that, in
respect of the safekeeping of executed drafts of the Canadian Borrower which
are delivered to it for acceptance hereunder, it will exercise the same degree
of care which it gives to its own negotiable instruments; provided that such
Lender shall not be deemed to be an insurer thereof. Such Lender will, upon
request by the Canadian Borrower, promptly advise the Canadian Borrower of the
number and designations, if any, of the uncompleted drafts then held by it. The
signature of any duly authorized officer of the Canadian Borrower on a draft
may be mechanically reproduced in facsimile and drafts and Canadian BAs bearing
such facsimile signature shall be binding upon the Canadian Borrower as if they
had been manually signed by such officer. Notwithstanding that any of the
individuals whose manual or facsimile signature appears on any draft as one of
such officers may no longer hold office at the date thereof or at the date of
its acceptance by such Lender hereunder or at any time thereafter, any draft or
Canadian BA so signed shall be valid and binding upon the Canadian Borrower.
The receipt by the Administrative Agent of a request for a Borrowing by way of
Canadian BAs shall be each applicable Lender's sufficient authority to
complete, and each applicable Lender shall, subject to the terms and conditions
of this Agreement, complete the pre-signed forms of drafts in accordance with
such request and the advice of the Administrative Agent as to the amount of the
Canadian BAs to be accepted by such Lender, and the drafts so completed shall
thereupon be deemed to have been presented for acceptance. Except as set forth
in the immediately preceding sentence, no Lender shall complete any pre-signed
forms of drafts.
SECTION II.11.3. Special Provisions Relating to Acceptance Notes. (a) The
Canadian Borrower and each applicable Lender hereby acknowledge and agree that
from time to time certain Lenders which are not Canadian chartered banks or
which are Canadian chartered banks listed on Schedule II of the Bank Act
(Canada) may not be authorized to or may, as a matter of general corporate
policy, elect not to accept Canadian BA drafts, and the Canadian Borrower and
each applicable Lender agrees that any such Lender may purchase Acceptance
Notes of the Canadian Borrower in accordance with the provisions of Section
2.11.3(b) in lieu of accepting Canadian BAs for its account.
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(b) In the event that any Lender described in Section 2.11.3(a) above is
unable to, or elects as a matter of general corporate policy not to, accept
Canadian BAs hereunder, such Lender shall not accept Canadian BAs hereunder,
but rather, if the Canadian Borrower requests the acceptance of such Canadian
BAs, the Canadian Borrower shall deliver to such Lender non-interest bearing
promissory notes (each, an "Acceptance Note") of the Canadian Borrower,
substantially in the form of Exhibit A-4 hereto, having the same maturity as
the Canadian BAs that would otherwise be accepted by such Lender and in an
aggregate principal amount equal to the undiscounted face amount of such
Canadian BAs. Each such Lender hereby agrees to purchase each Acceptance Note
from the Canadian Borrower at a purchase price equal to the Notional BA
Proceeds for a Lender listed on Schedule II to the Bank Act (Canada) which
would have been applicable if a Canadian BA draft had been accepted by such
bank and such Acceptance Notes shall be governed by the provisions of this
Article II as if they were Canadian BAs.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1. Repayments and Prepayments; Application.
SECTION III.1.1. Repayments and Prepayments. Each Borrower shall repay in
full the unpaid principal amount of each Loan made to it upon the Stated
Maturity Date therefor. Prior thereto, payments and prepayments of Loans shall
or may be made as set forth below.
(a) From time to time on any Business Day, the Company or a
Foreign Borrower, as the case may be, may make a voluntary prepayment,
in whole or in part, of the outstanding principal amount of any
(i) Loans (other than Swing Line Loans and Canadian
BAs); provided, however, that
(A) any such prepayment of the Loans of any
Tranche shall be made pro rata among Loans of such
Tranche of the same type and, if applicable, having
the same Interest Period of all Lenders that have
made such Loans;
(B) each Borrower shall comply with Section
4.4 in the event that any LIBO Rate Loan is prepaid
on any day other than the last day of the Interest
Period for such Loan;
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(C) all such voluntary prepayments shall require at least
one Business Day's notice in the case of Base Rate Loans and
three Business Days' notice in the case of LIBO Rate Loans, but
no more than five Business Days' notice in the case of any
Loans, in each case in writing to the Administrative Agent; and
(D) all such voluntary partial prepayments shall be in a
minimum aggregate amount of $500,000 (or, in the case of Foreign
Currency Loans, the multiple of 100,000 units of the Currency of
such Loans the U.S. Dollar Equivalent of which is nearest to
$500,000) or any larger integral multiple of $100,000 (or, in
the case of Foreign Currency Loans, the multiple of 50,000 units
of the Currency of such Loans the U.S. Dollar Equivalent of
which is nearest to $100,000) , or in the aggregate principal
amount of all Loans of the applicable Tranche and type then
outstanding; or
(ii) Swing Line Loans; provided that
(A) all such voluntary prepayments shall require prior
telephonic notice to the Swing Line Lender on or before 1:00
p.m., New York time, on the day of such prepayment (such notice
to be confirmed in writing by the Company within 24 hours
thereafter); and
(B) all such voluntary partial prepayments shall be in a
minimum aggregate amount of $50,000 or any larger integral
multiple of $10,000, or in the aggregate principal amount of all
Swing Line Loans then outstanding.
In addition, from time to time on any Business Day, the Company or any
Foreign Borrower may, upon not less than one Business Day's notice to the
Administrative Agent, elect to deposit with the Administrative Agent
Canadian Dollars in immediately available funds to be held by the
Administrative Agent, pursuant to collateral arrangements satisfactory to
it, for application to the payment of Canadian BAs designated by such
Borrower in such notice (provided that any such designation shall be made
pro rata among the Lenders on the basis of the aggregate face amount of
Canadian BAs then outstanding). If such a deposit is made, then such
Canadian BAs shall (to the extent of such deposit) be deemed no longer
outstanding for purposes of this Agreement.
(b) No later than five Business Days following the delivery by the
Company of its annual audited financial reports required pursuant to
clause (b) of Section 7.1.1 (beginning with the financial reports
delivered in respect of the 1998 Fiscal Year), the Company shall deliver
to the Administrative Agent a calculation of the Excess Cash Flow
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for the Fiscal Year last ended (or, in the case of the 1998 Fiscal Year,
from the Original Closing Date through December 31, 1998) and, no later
than five Business Days following the delivery of such calculation, make
or caused to be made a mandatory prepayment of the Term Loans in an amount
equal to (i) 50% of the Excess Cash Flow (if any) for such Fiscal Year (or
period) less (ii) the aggregate amount of all voluntary prepayments of the
principal of the Term Loans actually made in such Fiscal Year pursuant to
clause (a) of Section 3.1.1, to be applied as set forth in Section 3.1.2;
provided, however, that no such prepayment shall be required to be made
beyond the extent that the amount of Debt as reduced by giving effect to
such prepayment would result, on a pro forma basis, in a Leverage Ratio of
3.50:1 or less as of the end of the immediately preceding Fiscal Quarter.
(c) No later than one Business Day (in the case of Net Debt Proceeds)
or 30 calendar days (in the case of Net Disposition Proceeds) following
the receipt of any Net Disposition Proceeds or Net Debt Proceeds by the
Company or any of its Restricted Subsidiaries, the Company shall deliver
to the Administrative Agent a calculation of the amount of such Net
Disposition Proceeds or Net Debt Proceeds, as the case may be, and, to the
extent the amount of such Net Disposition Proceeds or Net Debt Proceeds,
as the case may be, with respect to any single transaction or series of
related transactions, exceeds $2,500,000, make or cause to be made a
mandatory prepayment of (or shall cash collateralize, in the case of
Canadian BAs) the Term Loans in an amount equal to 100% of such Net
Disposition Proceeds or Net Debt Proceeds, as the case may be, to be
applied as set forth in Section 3.1.2; provided that no mandatory
prepayment (or cash collateralization in the case of Canadian BAs) on
account of such Net Disposition Proceeds shall be required under this
clause if the Company informs the Agents no later than 30 days following
the receipt of any Net Disposition Proceeds of its or its Restricted
Subsidiary's good faith intention to apply such Net Disposition Proceeds
to the acquisition of other assets or property consistent with the Formica
Business (including by way of merger or Investment) within 365 days
following the receipt of such Net Disposition Proceeds, with the amount of
such Net Disposition Proceeds unused after such 365-day period being
applied to the Loans as set forth in Section 3.1.2.
(d) Concurrently with the consummation of any transaction giving rise
to any Net Equity Proceeds, the Company shall deliver to the
Administrative Agent a calculation of the amount of such Net Equity
Proceeds, and no later than five Business Days following the delivery of
such calculation, and, to the extent that the amount of such Net Equity
Proceeds with respect to any single transaction or series of related
transactions exceeds $2,500,000, make or cause to be made a mandatory
prepayment of the Term Loans (or shall cash collateralize, in the case of
Canadian BAs) in an amount equal to 50% of such Net Equity Proceeds to be
applied as set forth in Section 3.1.2; provided, however, that no such
prepayment (or cash collateralization in the case of Canadian BAs) shall
be required to be made beyond the extent that the amount of Debt as
reduced by giving
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effect to such prepayment would result, on a pro forma basis, in a
Leverage Ratio of 3.50:1 or less as of the end of the immediately
preceding Fiscal Quarter.
(e) Concurrently with the receipt by the Company or any of its
Restricted Subsidiaries of any Casualty Proceeds in excess of $2,500,000
(individually or in the aggregate over the course of a Fiscal Year), the
Company shall deposit or cause to be deposited such Casualty Proceeds in
an account maintained with the Administrative Agent and, within 60 days
following the receipt by the Company or any of its Restricted Subsidiaries
of such Casualty Proceeds, direct the Administrative Agent to apply such
Casualty Proceeds to prepay the Term Loans (or cash collateralize in the
case of Canadian BAs) in an amount equal to 100% of such Casualty
Proceeds, to be applied as set forth in Section 3.1.2; provided, however,
that no mandatory prepayment (or cash collateralization, in the case of
Canadian BAs) on account of Casualty Proceeds shall be required hereunder
if the Company informs the Agents no later than 60 days following the
occurrence of the Casualty Event resulting in such Casualty Proceeds of
its or its Restricted Subsidiary's good faith intention to apply such
Casualty Proceeds to the rebuilding or replacement (including through the
acquisition or construction of facilities providing equivalent capacity)
of the assets or property subject to such Casualty Event or the
acquisition of other assets or property consistent with the Formica
Business (including by way of merger or investment) and in fact uses such
Casualty Proceeds to rebuild or replace the assets or property subject to
such Casualty Event or to acquire such other assets or property within 365
days following the receipt of such Casualty Proceeds, with the amount of
such Casualty Proceeds unused after such 365-day period being applied to
the Loans pursuant to Section 3.1.2.
(f) On each date when any reduction in any Revolving Loan Commitment
Amount shall become effective in respect of any Revolving Loan Commitment,
including pursuant to Section 2.2, the Company or a Foreign Borrower, as
the case may be, shall make a mandatory prepayment of Revolving Loans or
shall cash collateralize Canadian BAs, if applicable, (in the relevant
Currency) and (if applicable and necessary) Swing Line Loans, and (if
necessary) deposit with the Administrative Agent cash collateral for
Letter of Credit Outstandings (in the relevant Currency) in an aggregate
amount equal to the excess, if any, of the sum of (i) the aggregate
outstanding principal amount of all Revolving Loans (in the relevant
Currency) and, with respect only to the U.S. Revolving Loan Commitment,
Swing Line Loans and (ii) the aggregate amount of all Letter of Credit
Outstandings (in the relevant Currency), in each case under such Revolving
Loan Commitment, over the applicable Revolving Loan Commitment Amount in
respect of such Revolving Loan Commitment, in each case as so reduced.
(g) On each date when any reduction in the Total Revolving Loan
Commitment Amount shall become effective, including pursuant to Section
2.2, the Company or a Foreign Borrower, as the case may be, shall make a
mandatory prepayment of Revolving Loans or cash collateralize Canadian
BAs, if applicable, and (if necessary) Swing Line
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Loans and (if necessary) deposit with the Administrative Agent cash
collateral for Letter of Credit Outstandings in an aggregate amount equal
to the excess, if any, of the sum of (i) the aggregate outstanding
principal amount of all Revolving Loans (included, in the case of Foreign
Currency Revolving Loans, at the U.S. Dollar Equivalent thereof) and Swing
Line Loans and (ii) the Letter of Credit Outstandings, over the Total
Revolving Loan Commitment Amount as so reduced.
(h) On the relevant Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth in clause (i) below
(with respect to all Term Loans (other than U.S. Term B Loans and
Additional U.S. Term Loans)), clause (ii) below (with respect to U.S. Term
B Loans) or clause (iii) below (with respect to Additional U.S. Term
Loans), the Company or a Foreign Borrower, as the case may be, shall make
a scheduled repayment of the outstanding principal amount, if any, of its
Term Loans, applied as set forth in Section 3.1.2, so that the aggregate
amount of such repayments shall equal the amount set forth below opposite
such Stated Maturity Date or period, as applicable (as such amounts may
have otherwise been reduced pursuant to this Agreement); provided that,
with respect to repayments of Foreign Currency Term Loans made pursuant to
this clause such repayments shall be made in the applicable Foreign
Currency in an amount equal to the Foreign Currency Equivalent thereof
determined by reference to exchange rates applied in respect of such
Foreign Currency Term Loans on the date such Foreign Currency Term Loans
were made:
(i) All Term Loans (other than U.S. Term B Loans and Additional
U.S. Term Loans):
Scheduled
Principal
Period Repayment
------ ---------
6/15/99 to 6/15/00 $531,250
6/16/00 to 6/15/01 $2,125,000
6/16/01 to 6/15/02 $4,250,000
6/16/02 to 6/15/03 $5,312,500
6/15/03 to Stated $9,031,250
Maturity Date therefor
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(ii) U.S. Term B Loans:
Scheduled
Principal
Period Repayment
------ ---------
4/03/00 to 3/31/05 $350,000
4/01/05 to 4/29/06 $26,600,000
Stated Maturity Date $26,600,000
therefor
(iii) Additional U.S. Term Loans:
Scheduled
Principal
Period Repayment
------ ---------
the date the Additional .25% of the aggregate principal
U.S. Term Loans are made amount of Additional U.S. Term
to 3/31/05 Loans made
4/01/05 to 4/29/06 and the one-fifth of the excess of the
Stated Maturity Date aggregate principal amount of
therefor Additional U.S. Term Loans made
over the sum of the principal
payments made prior to April 1,
2005
(i) On the Business Day following the date upon which the Company
shall have delivered a certificate required to be delivered pursuant to
clause (h) of Section 7.1.1, the Company or a Foreign Borrower, as the
case may be, shall,
(i) if the U.S. Dollar Equivalent of the aggregate outstanding
principal amount of all Committed Foreign Currency Revolving Loans
and Committed Foreign Currency Letter of Credit Outstandings in any
Foreign Currency is equal to or greater than 105% of the applicable
Foreign Currency Revolving Loan Commitment Amount with respect to
such Foreign Currency, make a prepayment of its Committed Foreign
Currency Revolving Loans in such Foreign Currency (or cash
collateralize Canadian BAs, if applicable) and (if necessary) deposit
with the Administrative Agent cash collateral for the Foreign
Currency Letter of Credit Outstandings in respect of such Foreign
Currency in an amount equal to such excess over the applicable
Foreign Currency Revolving Loan Commitment Amount; and
(ii) if the U.S. Dollar Equivalent of the sum of the aggregate
outstanding principal amount of all Foreign
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Currency Revolving Loans and all Foreign Currency Letter of Credit
Outstandings is equal to or greater than 105% of the Foreign Currency
Revolving Loan Limit, make a prepayment of its Foreign Currency
Revolving Loans (or cash collateralize Canadian BAs, if applicable)
and (if necessary) deposit with the Administrative Agent cash
collateral for the Foreign Currency Letter of Credit Outstandings (in
the applicable Foreign Currency) in an amount equal to such excess
over the Foreign Currency Revolving Loan Limit.
(j) Following the prepayment in full of the Term Loans, on the date
the Term Loans would otherwise have been required to be prepaid on account
of any Net Disposition Proceeds, Net Debt Proceeds, Excess Cash Flow, Net
Equity Proceeds or Casualty Proceeds, the Company or a Foreign Borrower,
as the case may be, shall first, prepay such Tranche or Tranches of
Revolving Loans and Swing Line Loans, to the extent then outstanding (or
cash collateralize Canadian BAs, if applicable), as the Company shall
elect, and, second, deposit with the Administrative Agent cash collateral
for Letter of Credit Outstandings, in an aggregate amount equal to the
amount by which the Term Loans would otherwise have been required to be
prepaid if Term Loans had been outstanding.
(k) Immediately upon any acceleration of the Stated Maturity Date of
any Loans or Obligations pursuant to Section 8.2 or Section 8.3, the
Company or a Foreign Borrower, as the case may be, shall repay all
outstanding Loans and other Obligations, and cash collateralize all
outstanding Canadian BAs unless, pursuant to Section 8.3, only a portion
of all Loans and other Obligations are so accelerated (in which case the
portion so accelerated shall be so prepaid).
(l) Immediately upon the receipt by the Spanish Term Borrower of the
proceeds of any Spanish Term Loan, the Company or a Foreign Borrower, as
the case may be, shall prepay U.S. Term A Loans, U.K. Term Loans or
Canadian Term Loans (as elected by the Company) in an amount equal to such
proceeds.
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. If any
such prepayments or repayments described above relate to Canadian BAs which
have not matured, the Canadian Borrower shall at such time deposit in a cash
collateral account opened and maintained by the Administrative Agent, an amount
equal to the aggregate undiscounted face amount (or the portion thereof
relating to the portion of all Canadian Loans so accelerated, in the case of
clause (i) of this Section 3.1.1) of all such unmatured Canadian BAs to be so
repaid or prepaid and such amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of such maturing Canadian
BAs. No prepayment of principal of any Revolving Loans or Swing Line Loans
pursuant to clause (a), (i) or (j) of this Section 3.1.1 shall cause a
reduction in any Revolving Loan Commitment Amount or the Swing Line Loan
Commitment Amount, as the case may be. Any Letter of Credit outstanding that is
cash collateralized pursuant to clause (f),
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(g) or (i) of this Section 3.1.1 shall not thereafter, so long as, and to the
extent that, such Letter of Credit remains so cash collateralized, be
considered to be outstanding for purposes of such clauses (f), (g) or (i) of
this Section 3.1.1.
SECTION III.1.2. Application. (a) Subject to clause (b) below, each
prepayment or repayment of principal of the Loans of any Tranche shall be
applied, to the extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second, to the
principal amount thereof being maintained as Fixed Rate Loans.
(b) Each prepayment of Term Loans made pursuant to clauses (a), (b), (c),
(d), (e), (h) and (l) of Section 3.1.1 shall be applied, (i) on a pro rata
basis, to the outstanding principal amount of (A) in the case of prepayments
pursuant to clause (l) of Section 3.1.1, the U.S. Term A Loans, U.K. Term Loans
and Canadian Term Loans, and (B) in the case of prepayments pursuant to clauses
(a), (b), (c), (d), (e) and (h) of Section 3.1.1, all Tranches of Term Loans
and (ii) except in the case of prepayments pursuant to clause (h) of Section
3.1.1, in direct order of maturity of the remaining scheduled quarterly
amortization payments under clause (h) of Section 3.1.1; provided that the
Company may make, or cause other Borrowers to make, any such prepayments to any
Lender of Term Loans of such Tranches as the Company shall elect so long as the
aggregate amount of all such prepayments made to each Lender is equal to its
pro rata portion of the aggregate prepayments made to all Lenders; provided,
further, that if the Company at any time elects in writing, in its sole
discretion, to permit any Lender of Term Loans to decline to have such Term
Loans prepaid, then any Lender with Term Loans outstanding may, by delivering a
notice to the Agents at least one Business Day prior to the date that such
prepayment is to be made, decline to have its pro rata portion of such Term
Loans prepaid with the amounts set forth above.
SECTION III.2. Interest Provisions. Interest on the outstanding principal
amount of the Loans (other than interest payable with respect to Canadian BAs)
shall accrue and be payable in accordance with this Section 3.2.
SECTION III.2.1. Rates.
(a) Each Base Rate Loan shall accrue interest on the unpaid principal
amount thereof for each day from and including the day upon which such Loan was
made or converted to a Base Rate Loan to but excluding the date such Loan is
repaid or converted to a Fixed Rate Loan at a rate per annum equal to the sum
of the Alternate Base Rate (if such Loan is not a Canadian Loan) or Canadian
Prime Rate (if such loan is a Canadian Loan), as applicable, for such day plus
the Applicable Margin for such Loan on such day.
(b) Each Committed LIBO Rate Loan in any Currency shall accrue interest on
the unpaid principal amount thereof for each day during each Interest Period
applicable thereto at a rate per annum equal to the sum of the LIBO Rate (or
(i), in the case of U.S. Loans, LIBO Rate (Reserve
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Adjusted) and (ii) in the case of U.K. Loans, LIBO Rate (Additional Cost
Adjusted)) for such Currency and Interest Period plus the Applicable Margin for
such Loan on such day.
(c) Each Uncommitted Revolving Loan shall accrue interest on the unpaid
principal amount thereof for each day from and including the day upon which
such Loan was made to but excluding the date such Loan is repaid at a rate per
annum equal to the Uncommitted Interest Rate for such Loan.
(d) Anything in the Section 3.2.1 to the contrary notwithstanding, each
U.S. Term B Loan shall accrue interest on the unpaid principal amount thereof
for each day from and including the day upon which such Term B Loan was made to
but excluding the Amendment Effective Date at the rates per annum set forth in
the DS Holding Credit Agreement.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION III.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan shall have become due and payable (whether on the applicable Stated
Maturity Date, upon acceleration or otherwise), or any other monetary
Obligation (other than overdue Reimbursement Obligations which shall bear
interest as provided in Section 2.8.2) of any Borrower shall have become due
and payable, such Borrower shall pay, but only to the extent permitted by law,
interest (after, as well as before, judgment) on such amounts at a rate per
annum equal to (i) in the case of any overdue principal of Loans, overdue
interest thereon, overdue commitment fees or other overdue amounts in respect
of Loans or other obligations (or the related Commitments) under a particular
Tranche,(x) in the case of Loans other than Foreign Currency Loans, the rate
that would otherwise be applicable to Base Rate Loans under such Tranche
pursuant to clause (a) of Section 3.2.1 plus 2%, (y) in the case of Committed
Foreign Currency Loans, the rate that would otherwise be applicable to such
Loans under clause (b) of Section 3.2.1 plus 2%, and (z) in the case of
Uncommitted Revolving Loans, the rate that would otherwise be applicable to
such Loans pursuant to clause (c) of Section 3.2.1 plus 2%, and (ii) in the
case of other overdue monetary Obligations, the rate that would otherwise be
applicable to Committed Revolving Loans that were Base Rate Loans plus 2%.
SECTION III.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) in the case of a LIBO Rate Loan or an Uncommitted Absolute Rate
Revolving Loan, on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan, to the extent of the unpaid
interest accrued through such date on the principal so paid or prepaid;
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(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the Closing Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period);
(e) with respect to the principal amount of any Base Rate Loans
converted into Fixed Rate Loans on a day when interest would not otherwise
have been payable pursuant to clause (c) above, on the date of such
conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION III.3. Fees. The Borrowers agree to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION III.3.1. Commitment Fee. Each Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment to such Borrower, for each day during the period (including any
portion thereof when any of the Lenders' applicable Revolving Loan Commitments
are suspended by reason of the Company's inability to satisfy any condition of
Article V) commencing on the Original Closing Date and continuing to but
excluding the Revolving Loan Commitment Termination Date, a commitment fee on
such Lender's Percentage of the unused portion, whether or not then available,
of the Revolving Loan Commitment Amount with respect to such Revolving Loan
Commitment (net of Letter of Credit Outstandings in respect of the related
Letter of Credit Commitment) for such day at a rate per annum equal to the
Applicable Commitment Fee for such day. Such commitment fees shall be payable
by the applicable Borrower in arrears on each Quarterly Payment Date,
commencing with the first such day following the Original Closing Date, and on
the Revolving Loan Commitment Termination Date. The making of Swing Line Loans
and Uncommitted Revolving Loans shall not constitute usage of the applicable
Revolving Loan Commitment with respect to the calculation of commitment fees to
be paid by the Borrowers to the applicable Lenders however, the acceptance of
Canadian BAs shall constitute usage of the Canadian Revolving Loan Commitment
with respect to the calculation of such commitment fee. Any term or provision
hereof to the contrary notwithstanding, commitment fees payable for any period
prior to the Original Closing Date shall be payable in accordance with the Fee
Letter. Payments by the Company to the Swing Line Lender in respect of accrued
interest on Swing Line Loans shall be
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net of the commitment fee payable in respect of the Swing Line Lender's
Revolving Loan Commitment.
SECTION III.3.2. Administrative Agent Fee. The Company agrees to pay an
annual administration fee to the Administrative Agent, for its own account, in
the amount set forth in the Administrative Agent's Fee Letter, payable in
advance on the Original Closing Date and quarterly thereafter.
SECTION III.3.3. Letter of Credit Fee. Each Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the applicable Issuer and
each other Lender that has a Percentage greater than zero in respect of the
applicable Revolving Loan Commitment Amount, a Letter of Credit fee (the
"Letter of Credit Fee") for each day on which there shall be any Letters of
Credit outstanding under any Letter of Credit Commitment to such Borrower, at a
rate per annum equal to (i) with respect to each standby Letter of Credit, the
then Applicable Margin for Revolving Loans maintained as LIBO Rate Loans,
multiplied by the Stated Amount of each such Letter of Credit; and (ii) with
respect to each commercial Letter of Credit, 1.25%, multiplied by the Stated
Amount of each such Letter of Credit, such fees being payable in U.S. Dollars
(or the U.S. Dollar Equivalent with respect to Foreign Currency Letters of
Credit) quarterly in arrears on each Quarterly Payment Date. Each Borrower
further agrees to pay to the applicable Issuer quarterly in arrears on each
Quarterly Payment Date, an issuance fee in an amount equal to .125% (or, if the
Company and the applicable Issuer shall have agreed to another percentage, such
other percentage), multiplied by the Stated Amount of each such Letter of
Credit, such fees being payable in U.S. Dollars (or the U.S. Dollar Equivalent
with respect to Foreign Currency Letters of Credit) quarterly in arrears on
each Quarterly Payment Date.
SECTION III.3.4. PSM Fee Letter. The Company acknowledges its having
succeeded by operation of law pursuant to the Mergers to the obligations of DS
Holding under the PSM Fee Letter (and hereby confirms its obligation to perform
such obligations), including the obligation to pay all amounts set forth in the
PSM Fee Letter, such payments to be made to the Persons entitled to receive
such payments, in each case, in accordance with the terms of the PSM Fee
Letter.
ARTICLE IV
CERTAIN LIBO RATE, CANADIAN BA AND OTHER PROVISIONS
SECTION IV.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Company and the Lenders,
be conclusive and binding on the Borrowers) that the introduction of or any
change in or in the interpretation of any law, in each case after (i) in the
case of any such introduction or change with respect to Committed Loans, the
date upon which such Lender shall have become a Lender hereunder, and (ii) in
the case of any such introduction or change with respect to Uncommitted
Revolving Loans,
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the date on which such Lender submitted an Uncommitted Interest Quote in
respect of such Uncommitted Revolving Loan pursuant to Section 2.4, makes it
unlawful, or any central bank or other governmental authority asserts, after
such date, that it is unlawful, for such Lender to make, continue or maintain
any Loan as, or to convert any Loan into, a LIBO Rate Loan, the obligations of
such Lender to make, continue, maintain or convert any Loans as or to LIBO Rate
Loans shall, upon such determination, forthwith be suspended until such Lender
shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist (with the date of such notice being the
"Reinstatement Date"), and (i) all LIBO Rate Loans previously made by such
Lender shall (A) in the case of U.S. Loans, automatically convert into Base
Rate Loans and (B) in the case of Foreign Currency Loans, accrue interest at
each applicable Lender's cost of funds, as reasonably determined and as
notified by such Lender to the Administrative Agent and the Company, plus the
Applicable Margin in respect of such Foreign Currency Loans, in each case at
the end of the then current Interest Periods with respect thereto or sooner, if
required by such law or assertion, and (ii) all Loans thereafter to be made by
such Lender and outstanding prior to the Reinstatement Date shall (A) in the
case of U.S. Loans, be made as Base Rate Loans, with interest thereon being
payable on the same date that interest is payable with respect to the
corresponding Borrowing of LIBO Rate Loans made by Lenders not so affected, and
(B) in the case of Foreign Currency Loans, accrue interest at each applicable
Lender's cost of funds, as reasonably determined and as notified by such Lender
to the Administrative Agent and the Company, plus the Applicable Margin in
respect of such Foreign Currency Loans.
SECTION IV.2. Deposits Unavailable; Circumstances Making Canadian BAs
Unavailable. (a) If the Administrative Agent shall have determined that (i)
deposits in the relevant Currency and amount and for the relevant Interest
Period are not available to the Administrative Agent in its relevant market, or
(ii) by reason of circumstances affecting the Administrative Agent's relevant
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans in a particular Currency, then, upon
notice from the Administrative Agent to the Company and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended and, in the case of U.S. Loans, such Loans shall accrue
interest at the Base Rate plus the Applicable Margin in respect of such Loans
and, in the case of Foreign Currency Loans, such Loans shall accrue interest at
each applicable Lender's cost of funds, as reasonably determined and as
notified by such Lender to the Administrative Agent and the Company, plus the
Applicable Margin in respect of such Loans, in each case from the end of the
then current Interest Period applicable thereto, until the Administrative Agent
shall notify the Company and the Lenders that the circumstances causing such
suspension no longer exist, and subsequent LIBO Rate Loans in respect of such
Currency shall be made at an interest rate equal to, in the case of U.S. Loans,
the Base Rate plus the Applicable Margin in respect of such Loans and, in the
case of Foreign Currency Loans, each applicable Lender's cost of funds, as
reasonably determined and as notified by such Lender to the Administrative
Agent and the Company, plus the Applicable Margin in respect of such Loans.
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(b) If the Administrative Agent shall have determined that by reason of
circumstances affecting the Canadian money market, there is no market for
Canadian BAs, then the right of the Canadian Borrower to request the acceptance
of Canadian BAs and the acceptance thereof shall be suspended until the
Administrative Agent determines that the circumstances causing such suspension
no longer exist and the Administrative Agent so notifies the Canadian Borrower
and any Committed Loan Borrowing Request or Continuation/Conversion Notice
requesting the acceptance of Canadian BAs shall be canceled and the Loans
requested therein shall be made as, continued as or converted into Canadian
Prime Rate Loans or, in the case of a Credit Extension, if requested by the
Canadian Borrower at least one Business Day prior to the scheduled date of the
Credit Extension, not be made.
SECTION IV.3. Increased Fixed Rate Loan Costs, etc. The applicable
Borrower agrees to reimburse each Lender for any increase in the cost to such
Lender of, or any reduction in the amount of any sum receivable by such Lender
in respect of, making, continuing or maintaining (or of its obligation to make,
continue or maintain) any Loans as, or of converting (or of its obligation to
convert) any Loans into, Fixed Rate Loans (excluding any amounts, whether or
not constituting Taxes, referred to in Section 4.6) arising as a result of any
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any court,
central bank, regulator or other governmental authority that occurs after (i)
in the case of any such increased costs or reduced return in respect of
Committed Loans, the date upon which such Lender became a Lender hereunder and
(ii) in the case of any such increased costs or reduced return in respect of
Uncommitted Revolving Loans, the date on which such Lender submitted an
Uncommitted Interest Quote with respect to such Uncommitted Revolving Loan
pursuant to Section 2.4. Such Lender shall promptly notify the Administrative
Agent and the Company in writing of the occurrence of any such event, and such
notice shall state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the
applicable Borrower directly to such Lender within five days of its receipt of
such notice, and such notice shall, in the absence of manifest error, be
conclusive and binding on the Borrowers.
SECTION IV.4. Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a Fixed Rate
Loan, but excluding any loss of margin after the date of any such conversion,
repayment, prepayment or failure to borrow, continue or convert) as a result of
(i) any conversion or repayment or prepayment of the principal amount of any
Fixed Rate Loans on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Section 3.1 or otherwise, (ii)
any Loans not being borrowed as Fixed Rate Loans in accordance with the
Borrowing Request therefor, or (iii) any Loans not being continued as, or
converted into, Fixed Rate Loans in accordance with the Continuation/Conversion
Notice therefor, then, upon the
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written notice of such Lender to the applicable Borrower (with a copy to the
Administrative Agent), such Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on such
Borrower.
SECTION IV.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority, in each case occurring after (i) in the case
of any such change, introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in in respect of Committed Loans, the applicable
Lender becomes a Lender hereunder, (ii) in the case of any such change,
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in respect of Uncommitted Revolving Loans, the date upon which such
Lender submitted an Uncommitted Interest Quote in respect of such Uncommitted
Revolving Loan pursuant to Section 2.4, and (iii) in the case of any such
change, introduction, adoption, effectiveness, interpretation, reinterpretation
or phase-in in respect of Letters of Credit, the applicable Issuer becomes an
Issuer hereunder, affects or would affect the amount of capital required or
expected to be maintained by any Lender or Issuer or any Person controlling
such Lender or Issuer or affects or would affect the cost or revenue associated
with the issuance of or participation in Letters of Credit, and such Lender or
Issuer determines (in its sole and absolute discretion) that the rate of return
on its or such controlling Person's capital as a consequence of its
Commitments, issuance of or participation in Letters of Credit, acceptance of
or funding of Canadian BAs or the Loans made by such Lender is reduced to a
level below that which such Lender or Issuer or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any
such case upon notice from time to time by such Lender or Issuer to the
Company, the applicable Borrower shall immediately pay directly to such Lender
or Issuer additional amounts sufficient to compensate such Lender or Issuer or
such controlling Person for such reduction in rate of return. A statement of
such Lender or Issuer as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrowers. In determining such amount,
such Lender or Issuer may use any method of averaging and attribution that it
(in its sole and absolute discretion) shall deem applicable; provided that such
Lender or Issuer may not impose materially greater costs on the Borrowers than
on other similarly situated borrowers by virtue of any such averaging or
attribution method.
SECTION IV.6. Taxes. (a) All payments by the Borrowers of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations, fees and expenses) shall be made free and clear of
and without deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, but excluding (i) any
income, excise, stamp or franchise taxes and other similar taxes, fees, duties,
withholdings or other charges imposed on any of the Agents as a result of a
present or former connection between
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the applicable lending office (or office through which it performs any of its
actions as Agent) of such Agent, and any income, excise, stamp or franchise
taxes and other similar taxes, fees, duties, withholdings or other charges
imposed on any Lender as a result of a present or former connection between the
applicable lending office of such Lender, in each case, and the jurisdiction of
the governmental authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from such Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or taken any action to enforce,
this Agreement or any Note) or (ii) any income, excise, stamp or franchise
taxes and other similar taxes, fees, duties, withholdings or other charges to
the extent that they are in effect and would apply (x) as of the date any
Person becomes a Lender or Assignee Lender to the extent such taxes, fees,
duties, withholdings or other charges relate to payments other than payments in
respect of Uncommitted Revolving Loans, (y) as of the date on which such Lender
submitted an Uncommitted Interest Quote with respect to such Uncommitted
Revolving Loans pursuant to Section 2.4, to the extent such taxes, fees,
duties, withholdings or other charges become applicable as a result of or in
connection with the Uncommitted Revolving Loans, or (z) in either case, as of
the date that any Lender changes its applicable lending office, to the extent
such taxes become applicable as a result of such change (other than a change in
an applicable lending office made pursuant to Section 4.10 below) (such
non-excluded items being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by any Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
such Borrower will 1) pay directly to the relevant taxing authority the full
amount required to be so withheld or deducted, 2) promptly forward to the
Administrative Agent an official receipt or other documentation available to
such Borrower reasonably satisfactory to the Administrative Agent evidencing
such payment to such authority, and 3) pay to the Administrative Agent for the
account of the applicable Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by each Lender will
equal the full amount such applicable Lender would have received had no such
withholding or deduction been required; provided, however, that the Company
shall not be required to pay any such additional amounts in respect of amounts
payable to any Lender or Agent that is not organized under the laws of the
United States or a state thereof if such Lender or Agent fails to comply with
the requirements of clause (b) of Section 4.6.
Moreover, if any Taxes are directly asserted against any of the Agents or
any Lender with respect to any payment received by such Agents or such Lender
hereunder, such Agents or such Lender may pay such Taxes and the applicable
Borrower will promptly pay to such Person such additional amount (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such Person (including any Taxes on such additional amount) shall
equal the amount of such Taxes paid by such Person; provided, however, that the
applicable Borrower shall not be obligated to make payment to the Lenders or
the Agents (as the case may be) pursuant to this sentence in respect of
penalties or interest attributable to any Taxes, if written demand therefor has
not been made by such Lenders or the Agents within 60 days from the date on
which such Lenders or the Agents knew of the imposition of Taxes by the
relevant taxing authority or for any additional imposition which may arise from
the failure of the Lenders or the
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Agents to apply payments in accordance with the applicable tax law after any
Borrower has made the payments required hereunder; provided, further, that the
Company shall not be required to pay any such additional amounts in respect of
any amounts payable to any Lender or Agent (as the case may be) that is not
organized under the laws of the United States or a state thereof to the extent
the related Tax is imposed as a result of such Lender or Agent failing to
comply with the requirements of clause (b) of Section 4.6. After a Lender or an
Agent (as the case may be) learns of the imposition of Taxes, such Lender or
Agent will act in good faith to notify the Borrowers of their obligations
hereunder as soon as reasonably possible.
If any Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, such Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
(b) Each Non-U.S. Lender shall, (i) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender listed on
the signature pages hereof, or, in the case of an Assignee Lender, on or prior
to the date it becomes a Lender, execute and deliver to the Company and the
Administrative Agent, two or more (as the Company or the Agents may reasonably
request) United States Internal Revenue Service Forms 4224 or Forms 1001 (or
successor forms) or, solely if such Lender is claiming exemption from United
States withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", United States Internal Revenue Service
Forms W-8 and a certificate signed by a duly authorized officer of such Lender
representing that such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, or such other forms or documents (or successor forms
or documents), appropriately completed, establishing that payments to such
Lender are exempt from withholding or deduction of Taxes imposed by the United
States; and (ii) deliver to the Company and the Administrative Agent two
further copies of any such form or documents on or before the date that any
such form or document expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recent such form or document
previously delivered by it to the Company.
(c) If the Company determines in good faith that a reasonable basis exists
for contesting the imposition of a Tax with respect to a Lender or any of the
Agents, the relevant Lender or Agent, as the case may be, shall cooperate with
the Borrowers in challenging such Tax at the Borrowers' expense if requested by
the Company; provided, however, that nothing in this Section 4.6 shall require
any Lender to submit to the Company or any other Person any tax returns or any
part thereof, or to prepare or file any tax returns other than as such Lender
in its sole discretion shall determine.
(d) If a Lender or an Agent shall receive a refund (including any offset
or credits) from a taxing authority (as a result of any error in the imposition
of Taxes by such taxing authority) of any Taxes paid by any Borrower pursuant
to subsection 4.6(a) above, such Lender or the Agent
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(as the case may be) shall promptly pay such Borrower the amount so received,
together with any interest from the taxing authority with respect to such
refund, net of any tax liability incurred by such Lender or Agent that is
attributable to the receipt of such refund and such interest.
(e) Each Lender and each Agent agrees, to the extent reasonable and
without material cost to it, to cooperate with the Borrowers to minimize any
amounts payable by the Borrowers under this Section 4.6.
SECTION IV.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrowers pursuant to this
Agreement or any other Loan Document shall be made by the Borrowers to the
Administrative Agent for the pro rata account of the Lenders, Agents or
Arranger, as applicable, entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 1:00 p.m., New York time (1:00 p.m.,
London time, in the case of Foreign Currency Loans other than Canadian Loans),
on the date due, in same day or immediately available funds, to such account as
the Administrative Agent shall specify from time to time by notice to the
Company and the applicable Borrower. Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next succeeding
Business Day. The Administrative Agent shall promptly remit in same day funds
to each Lender (or, with respect to any LIBO Rate Loan made by any foreign
branch or Affiliate of any Lender, if requested by such Lender, directly to
such foreign branch or Affiliate), Agent or Arranger, as the case may be, its
share, if any, of such payments received by the Administrative Agent for the
account of such Lender, Agent or Arranger, as the case may be. All interest and
fees shall be computed on the basis of the actual number of days (including the
first day but excluding the last day) occurring during the period for which
such interest or fee is payable over a year comprised of 360 days (or, in the
case of interest on (i) a Base Rate Loan or (ii) a LIBO Rate Loan denominated
in British Pounds, 365 days or, if appropriate, 366 days). Whenever any payment
to be made shall otherwise be due on a day which is not a Business Day, such
payment shall (except as otherwise required by clause (i) of the definition of
the term "Interest Period") be made on the next succeeding Business Day and
such extension of time shall be included in computing interest and fees, if
any, in connection with such payment.
SECTION IV.8. Sharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan or Reimbursement Obligations (other than
pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro rata
share of payments then or therewith obtained by all Lenders entitled thereto,
such Lender shall purchase from the other Lenders such participation in the
Credit Extensions made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase
shall be rescinded and each Lender which has sold a participation to the
purchasing Lender shall repay to the purchasing Lender the purchase price to
the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to
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the proportion of (i) the amount of such selling Lender's required repayment to
the purchasing Lender in respect of such recovery, to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrowers agree that any Lender so purchasing a participation from another
Lender pursuant to this Section may, to the fullest extent permitted by law,
exercise all its rights of payment (including pursuant to Section 4.9) with
respect to such participation as fully as if such Lender were the direct
creditor of the applicable Borrower in the amount of such participation. If
under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section applies,
such Lender shall, to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights of the Lenders
entitled under this Section to share in the benefits of any recovery on such
secured claim.
SECTION IV.9. Setoff. Each Lender shall, upon the occurrence of any Event
of Default described in clauses (b) through (d) of Section 8.1.9 with respect
to any Obligor (other than Immaterial Subsidiaries) or, with the consent of the
Required Lenders, upon the occurrence of any other Event of Default, to the
fullest extent permitted by law, have the right to appropriate and apply to the
payment of the Obligations then due to it from such Borrower, and (as security
for such Obligations) each Borrower hereby grants to each Lender a continuing
security interest in, any and all balances, credits, deposits, accounts or
moneys of such Borrower then or thereafter maintained with or otherwise held by
such Lender; provided, however, that any such appropriation and application
shall be subject to the provisions of Section 4.8. Each Lender agrees promptly
to notify the applicable Borrower and the Company and the Administrative Agent
after any such setoff and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff under
applicable law or otherwise) which such Lender may have.
SECTION IV.10. Mitigation. Each Lender agrees that if it makes any demand
for payment under Sections 4.3, 4.4, 4.5 or 4.6, or if any adoption or change
of the type described in Section 4.1 shall occur with respect to it, it will
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for a Borrower to make payments under Section 4.3, 4.4, 4.5 or
4.6, or would eliminate or reduce the effect of any adoption or change
described in Section 4.1.
SECTION IV.11. Replacement of Lenders. Each Lender hereby severally agrees
as set forth in this Section. If any Lender (a "Subject Lender") makes demand
upon any Borrower for (or if any Borrower is otherwise required to pay) amounts
pursuant to Section 4.3, 4.5 or 4.6, or gives notice pursuant to Section 4.1
requiring a conversion of such Subject Lender's LIBO Rate Loans to Base Rate
Loans or any other change in the basis upon which interest is to accrue in
respect of such Subject Lender's Fixed Rate Loans or suspending such Lender's
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obligation to make Loans as, or to convert Loans into, Fixed Rate Loans, the
Company may, within 90 days of receipt by such Borrower of such demand or
notice (or the occurrence of such other event causing any Borrower to be
required to pay such compensation), as the case may be, give notice (a
"Replacement Notice") in writing to the Agents and such Subject Lender of its
intention to replace such Subject Lender with a financial institution (a
"Replacement Lender") designated in such Replacement Notice. If the Agents
shall, in the exercise of their reasonable discretion and within 30 days of
their receipt of such Replacement Notice, notify the Company and such Subject
Lender in writing that the designated financial institution is satisfactory to
the Agents (such consent not being required where the Replacement Lender is
already a Lender), then such Subject Lender shall, subject to the payment of
any amounts due pursuant to Section 4.4, assign, in accordance with Section
11.11.1, all of its Commitments, Loans and other rights and obligations under
this Agreement and all other Loan Documents (including, without limitation,
Reimbursement Obligations) to such designated financial institution; provided,
however, that (i) such assignment shall be without recourse, representation or
warranty and shall be on terms and conditions reasonably satisfactory to such
Subject Lender and such designated financial institution and (ii) the purchase
price paid by such designated financial institution shall be in the amount of
such Subject Lender's Loans and its Percentage in respect of any Revolving Loan
Commitment under which there are outstanding Reimbursement Obligations of such
Reimbursement Obligation, together with all accrued and unpaid interest and
fees in respect thereof, plus all other amounts (including the amounts demanded
and unreimbursed under Sections 4.3, 4.5 and 4.6), owing to such Subject Lender
hereunder. Upon the effective date of an assignment described above, the
assignee financial institution or Replacement Lender shall become a "Lender"
for all purposes under this Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION V.1. [INTENTIONALLY OMITTED].
SECTION V.2. All Credit Extensions. The obligation of each Lender and, if
applicable, each Issuer, to make any Credit Extension shall be subject to the
satisfaction of each of the conditions precedent set forth in this Section 5.2.
SECTION V.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) the representations and warranties set forth in Article
VI and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
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(b) in the case of a Committed Revolving Loan or Letter of
Credit issuance, the sum of (i) the aggregate outstanding principal
amount of all Committed Revolving Loans and, if applicable, Swing Line
Loans under the applicable Revolving Loan Commitment plus (ii) the
aggregate amount of all Letter of Credit Outstandings under such
Revolving Loan Commitment does not exceed the then existing Revolving
Loan Commitment Amount in respect of such Revolving Loan Commitment;
(c) the sum of (i) the aggregate outstanding principal amount of
all Revolving Loans (included in the case of Foreign Currency Revolving
Loans at the U.S. Dollar Equivalent thereof) and Swing Line Loans and (ii)
the Letter of Credit Outstandings shall not exceed the Total Revolving
Loan Commitment Amount;
(d) the sum of (i) the aggregate outstanding principal amount of
all Foreign Currency Revolving Loans (included at the U.S. Dollar
Equivalent thereof) and (ii) the Foreign Currency Letter of Credit
Outstandings shall not exceed the Foreign Currency Revolving Loan Limit;
and
(e) no Default shall have then occurred and be continuing.
SECTION V.2.2. Credit Extension Request. The Administrative Agent shall
have received a Borrowing Request if Loans are being requested, or an Issuance
Request if a Letter of Credit is being requested or extended. Each of the
delivery of a Borrowing Request or Issuance Request and the acceptance by any
Borrower of proceeds of any Credit Extension shall constitute a representation
and warranty by the Company that on the date of such Credit Extension (both
immediately before and after giving effect thereto and the application of the
proceeds thereof) the statements made in Section 5.2.1 are true and correct.
SECTION V.3. First Borrowing by Each Foreign Subsidiary. The obligation of
any Lender to make a Loan on the occasion of the first Borrowing by any Foreign
Borrower (other than the U.K. Revolver Borrower, the U.K. Term Borrower, the
Canadian Borrower, the French Revolver Borrower and the Spanish Revolver
Borrower) is subject to the satisfaction of the following further conditions:
(a) receipt by the Administrative Agent for the account of
each Lender with an applicable Foreign Currency Revolving Loan
Commitment that shall have requested a Note not less than two Business
Days prior to the date of such Borrowing of a duly executed Note of
such Foreign Borrower, dated on or before the date of such Borrowing,
complying with the provisions of Section 2.9;
(b) receipt by the Administrative Agent of an opinion of
counsel for such Foreign Borrower acceptable to the Administrative
Agent, in form and substance satisfactory to the Agents and covering
such additional matters relating to the transactions contemplated
hereby as the Required Lenders may reasonably request; and
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(c) receipt by the Administrative Agent of a duly executed
Foreign Currency Revolving Loan Commitment Addendum, Term Loan
Commitment Addendum or Uncommitted Revolving Borrowing Addendum,
together with all documents which it may reasonably request relating
to the existence of such Foreign Borrower, its corporate authority for
and the validity of its entry into this Agreement and the other Loan
Documents to which it is a party, and any other matters relevant
thereto, all in form and substance satisfactory to the Administrative
Agent.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuers and the Agents to enter into
this Agreement and to make Credit Extensions hereunder, the Company represents
and warrants unto the Agents, each Issuer and each Lender as set forth in this
Article VI.
SECTION VI.1. Organization, etc. The Company and each of its Restricted
Subsidiaries (a) is a corporation validly organized and existing and in good
standing to the extent required under the laws of the jurisdiction of its
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation to the extent required under the laws of each jurisdiction
where the nature of its business requires such qualification, except to the
extent that the failure to qualify would not reasonably be expected to result
in a Material Adverse Effect, and (b) has full power and authority and holds
all requisite governmental licenses, permits and other approvals to (i) enter
into and perform its Obligations under this Agreement and each other Loan
Document to which it is a party and (ii) own and hold under lease its property
and to conduct its business substantially as currently conducted by it except,
in the case of this clause (b)(ii), where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION VI.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Company of this Agreement and each other Loan
Document executed or to be executed by it, and the execution, delivery and
performance by each other Obligor of each Loan Document executed or to be
executed by it, are within the Company's and each such Obligor's company
powers, have been duly authorized by all necessary company action, and do not
(i) contravene the Company's or any such Obligor's Charter Documents, (ii)
contravene any contractual restriction, law or governmental regulation or court
decree or order binding on or affecting the Company or any such Obligor, where
such contravention, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, or (iii) result in, or require the
creation or imposition of, any Lien on any of the Company's or any other
Obligor's properties, except pursuant to the terms of a Loan Document.
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SECTION VI.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due
execution, delivery or performance by the Company or any other Obligor of this
Agreement or any other Loan Document to which it is a party, except as have
been duly obtained or made and are in full force and effect or those which the
failure to obtain or make could not reasonably be expected to have a Material
Adverse Effect. None of the Company or any other Obligor, or any of the
Company's Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION VI.4. Validity, etc. This Agreement constitutes, and each other
Loan Document executed by any Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of any Borrower
party thereto enforceable in accordance with their respective terms; and each
Loan Document executed pursuant hereto by each other Obligor will, on the due
execution and delivery thereof by such Obligor, be the legal, valid and binding
obligation of such Obligor enforceable in accordance with its terms, in each
case with respect to this Section 6.4 subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
SECTION VI.5. Financial Information. The Company has delivered to the
Agents and each Lender copies of an audited consolidated balance sheet of the
Company and its Subsidiaries as at December 31, 1999 and the related audited
consolidated statements of operations, cash flows and changes in stockholders'
equity for the Fiscal Year then ended (collectively, the "Base Financial
Statements"). The Base Financial Statements have been prepared in accordance
with GAAP consistently applied and present fairly in all material respects the
consolidated financial position of FMH and its Subsidiaries as of the date
thereof and their results of operations and cash flows for the periods then
ended.
SECTION VI.6. No Material Adverse Change. Since December 31, 1999, there
has been no material adverse change in the financial condition, operations,
assets, business, properties or prospects of the Company and its Restricted
Subsidiaries, taken as a whole.
SECTION VI.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Company, threatened litigation, action, proceeding,
labor controversy, arbitration or governmental investigation affecting any
Obligor, or any of their respective properties, businesses, assets or revenues,
which could reasonably be expected to result in a Material Adverse Effect
except as disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule. No
material adverse development has occurred in any litigation, action, labor
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controversy, arbitration or governmental investigation or other proceeding
disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule.
SECTION VI.8. Subsidiaries. The Company has only those Subsidiaries (i)
which are identified in Item 6.8 ("Existing Subsidiaries") of the Disclosure
Schedule, or (ii) which are permitted to have been acquired in accordance with
Section 7.2.5 or 7.2.8.
SECTION VI.9. Ownership of Properties. Except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, the Company and each of its Restricted Subsidiaries owns good title to,
or leasehold interests in, all of its properties and assets (other than
insignificant properties and assets), real and personal, tangible and
intangible, of any nature whatsoever (including patents, trademarks, trade
names, service marks and copyrights), free and clear of all Liens or material
claims (including material infringement claims with respect to patents,
trademarks, copyrights and the like), except as permitted pursuant to Section
7.2.3.
SECTION VI.10. Taxes. Each of Holdings, FMH, the Company and each of the
Company's Subsidiaries has filed all Federal, State and other material tax
returns required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or
charges which are being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set aside
on its books.
SECTION VI.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the Original Closing Date, no steps
have been taken to terminate any Pension Plan under section 4041(c) or section
4042 of ERISA, and no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA,
which, singly or in the aggregate, is reasonably expected to lead to a
liability to such Pension Plan in excess of $5,000,000. Except as disclosed in
Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule, no condition
exists or event or transaction has occurred with respect to any Pension Plan
which could reasonably be expected to result in the incurrence by the Company
or any member of the Controlled Group of any material liability, fine or
penalty other than such condition, event or transaction which would not
reasonably be expected to have a Material Adverse Effect. Except as disclosed
in Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule or otherwise
approved by the Agents (such approval not to be unreasonably withheld or
delayed), since the date of the last financial statement the Company has not
increased any contingent liability with respect to any post-retirement benefit
under a Welfare Plan, other than liability for continuation coverage described
in Part 6 of Subtitle B of Title I of ERISA, except as would not have a
Material Adverse Effect.
SECTION VI.12. Environmental Warranties. Except as set forth in Item 6.12
("Environmental Matters") of the Disclosure Schedule or as, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect and except to the extent the Company and its Restricted Subsidiaries
would be entitled to be indemnified by the PSM Seller pursuant to the terms of
the PSM Acquisition Agreement for the liabilities arising therefrom (so long as
the PSM Seller is not contesting such indemnification):
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(a) all facilities and property (including underlying
groundwater) owned or leased by the Company or any of its Subsidiaries
are, and continue to be, owned or leased by the Company and its
Subsidiaries in compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or
threatened (i) written claims, complaints, notices or requests for
information received by the Company or any of its Subsidiaries with
respect to any alleged violation of any Environmental Law, or (ii)
written complaints, notices or inquiries to the Company or any of its
Subsidiaries regarding potential liability under any Environmental
Law;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by the Company or any
of its Subsidiaries;
(d) the Company and its Subsidiaries have been issued and are
in compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary
for their businesses;
(e) no property now owned or leased by the Company or any of
its Subsidiaries is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Company or any of its
Subsidiaries;
(g) the Company and its Subsidiaries have not directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or to the knowledge
of the Company or any of its Subsidiaries, proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list;
(h) there are no polychlorinated biphenyls or friable
asbestos present in a manner or condition at any property now or
previously owned or leased by the Company or any Subsidiary of the
Company; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Company or any of its Subsidiaries
which, with the passage of time, or the giving of notice or both,
would give rise to liability to the Company or any of its Subsidiaries
under any Environmental Law.
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SECTION VI.13. Regulations U and X. Neither the Company nor FMH or
Holdings is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Credit Extension
will be used in violation of F.R.S. Board Regulation U or X. Terms for which
meanings are provided in F.R.S. Board Regulation U or X or any regulations
substituted therefor, as from time to time in effect, are used in this Section
with such meanings.
SECTION VI.14. Accuracy of Information. All material factual information
concerning the financial condition, operations or prospects of Holdings, FMH,
the Company, and the Company's Subsidiaries heretofore or contemporaneously
furnished by or on behalf of the Company in writing to the Agents, the
Arranger, any Issuer or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Company, or any of its
Subsidiaries to the Agents, the Arranger, any Issuer or any Lender will be,
taken as a whole, true and accurate in every material respect on the date as of
which such information is dated or certified and such information is not, or
shall not be, taken as a whole, as the case may be, incomplete by omitting to
state any fact necessary to make such information not materially misleading;
provided that this Section 6.14 shall only relate to information regarding
Unrestricted Subsidiaries to the extent such information was (i) required to be
provided hereunder or pursuant to any other Loan Document, or (ii) requested by
the Agents or the Lenders and was provided by Holdings, FMH, the Company or any
of its Subsidiaries, but shall not apply to any such information on
Unrestricted Subsidiaries which is otherwise received by the Agents or the
Lenders or was inadvertently provided to the Agents or the Lenders.
Any term or provision of this Section to the contrary notwithstanding,
insofar as any of the factual information described above includes assumptions,
estimates, projections or opinions, no representation or warranty is made
herein with respect thereto; provided, however, that to the extent any such
assumptions, estimates, projections or opinions are based on factual matters,
the Company has reviewed such factual matters and nothing has come to its
attention in the context of such review which would lead it to believe that
such factual matters were not or are not true and correct in all material
respects or that such factual matters omit to state any material fact necessary
to make such assumptions, estimates, projections or opinions not misleading in
any material respect.
SECTION VI.15. Solvency. On the Original Closing Date, after giving effect
to the Transaction, the Company was Solvent.
SECTION VI.16. Status of Obligations as Senior Indebtedness, etc. The
subordination provisions relating to the Senior Subordinated Debt (including
the subordination provisions set forth in the Indenture dated as of February
22, 1999 (the "Senior Subordinated Note Indenture"), between the Company and
Summit Bank, as trustee, relating to the 10 7/8% Senior Subordinated Notes due
2009 of the Company) are enforceable against the holders of the applicable
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Senior Subordinated Debt by the holder of any "Senior Indebtedness" or similar
term referring to the Obligations (as defined in the applicable Senior
Subordinated Debt Documents). All Obligations, including those to pay principal
of and interest (including interest accruing subsequent to the filing of, or
which would have accrued but for the filing of, a petition for bankruptcy,
reorganization or similar proceeding, whether or not allowed as a claim under
such proceeding) on the Loans and Reimbursement Obligations, and fees and
expenses in connection therewith, constitute "Senior Indebtedness" or similar
term relating to the Obligations (as defined in the applicable Senior
Subordinated Debt Documents) and all such Obligations are entitled to the
benefits of the subordination created by such Senior Subordinated Debt
Documents. The Company acknowledges that each Agent, each Lender and each
Issuer is entering into this Agreement in reliance upon the subordination
provisions of the Senior Subordinated Note Indenture.
ARTICLE VII
COVENANTS
SECTION VII.1. Affirmative Covenants. The Company agrees with the
Agents, each Issuer and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Company will
perform the obligations set forth in this Section 7.1.
SECTION VII.1.1. Financial Information, Reports, Notices, etc. The Company
will furnish, or will cause to be furnished, to each Lender and each Agent
copies of the following financial statements, reports, notices and information:
(a) as soon as available and in any event within 55 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year of the Company (or, if the Company is required to file
such information on a Form 10-Q with the Securities and Exchange
Commission, promptly following such filing), a consolidated balance
sheet of the Company and its Subsidiaries as of the end of such Fiscal
Quarter, together with the related consolidated statement of
operations for such Fiscal Quarter and for the period commencing at
the end of the previous Fiscal Year and ending with the end of such
Fiscal Quarter and the related consolidated statements of cash flows
for such period (it being understood that the foregoing requirement
may be satisfied by delivery of the Company's report to the Securities
and Exchange Commission on Form 10-Q, if any), certified by the
president, chief executive officer, treasurer, assistant treasurer,
controller or chief financial Authorized Officer of the Company;
(b) as soon as available and in any event within 100 days
after the end of each Fiscal Year of the Company (or, if the Company
is required to file such information on a Form 10-K with the
Securities and Exchange Commission, promptly following such filing), a
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copy of the annual audit report for such Fiscal Year for the Company
and its Subsidiaries, including therein a consolidated balance sheet
for the Company and its Subsidiaries as of the end of such Fiscal
Year, together with the related consolidated statements of operations
and cash flows for such Fiscal Year (it being understood that the
foregoing requirement may be satisfied by delivery of the Company's
report to the Securities and Exchange Commission on Form 10-K, if
any), in each case certified (without any Impermissible Qualification)
by a "Big Six" firm of independent public accountants, together with a
certificate from such accountants as to whether, in making the
examination necessary for the signing of such annual report by such
accountants, they have become aware of any Default that has occurred
and is continuing and, if in the opinion of such accounting firm such
a Default has occurred and is continuing, a statement as to the nature
thereof;
(c) together with the delivery of the financial information
required pursuant to clauses (a) and (b), a Compliance Certificate,
executed by the president, chief executive officer, treasurer,
assistant treasurer, controller or chief financial Authorized Officer
of the Company, showing (in reasonable detail and with appropriate
calculations and computations in all respects satisfactory to the
Agents) compliance with the financial covenants set forth in Section
7.2.4;
(d) as soon as possible and in any event within five Business
Days after obtaining knowledge of the occurrence of any Default, if
such Default is then continuing, a statement of the president, chief
executive officer, treasurer, assistant treasurer, controller or chief
financial Authorized Officer of the Company setting forth details of
such Default and the action which the Company has taken or proposes to
take with respect thereto;
(e) as soon as possible and in any event within ten Business
Days after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding or labor controversy
described in Section 6.7 or (y) the commencement of any labor
controversy, litigation, action or proceeding of the type described in
Section 6.7, notice thereof and of the action which the Company has
taken or proposes to take with respect thereto;
(f) promptly after the sending or filing thereof, copies of
all reports and registration statements (other than exhibits thereto
and any registration statement on Form S-8 or its equivalent) which
the Company or any of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(g) as soon as practicable after the chief financial officer
or the chief executive officer of the Company or a member of the
Company's Controlled Group becomes aware of (i) formal steps in
writing to terminate any Pension Plan or (ii) the occurrence of any
event with respect to a Pension Plan which, in the case of (i) or
(ii), could reasonably be expected to result in a contribution to such
Pension Plan by (or a liability to) the Company or a member of the
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Company's Controlled Group in excess of $10,000,000, (iii) the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA in an
amount in excess of $10,000,000, (iv) the taking of any action with
respect to a Pension Plan which could reasonably be expected to result
in the requirement that the Company furnish a bond to the PBGC or such
Pension Plan in an amount in excess of $10,000,000 or (v) any material
increase in the contingent liability of the Company with respect to
any post-retirement Welfare Plan benefit, notice thereof and copies of
all documentation relating thereto;
(h) within 20 days after the end of each calendar month, a
certificate, in substantially the form of Exhibit E-2, executed by the
president, chief executive officer, treasurer, controller or chief
financial Authorized Officer of the Company showing the U.S. Dollar
Equivalent of the aggregate outstanding principal amount of all
Foreign Currency Revolving Loans, as of the end of such month, for (i)
all Foreign Borrowers, taken as a whole, and (ii) each Foreign
Borrower, individually;
(i) to the extent requested by the Agents, copies of the
Closing Balance Sheet and the Final Figures (as such terms are defined
in the PSM Acquisition Agreement) when delivered under the PSM
Acquisition Agreement; and
(j) such other information respecting the condition or
operations, financial or otherwise, of the Company or any of its
Restricted Subsidiaries as any Lender through the Administrative Agent
may from time to time reasonably request.
SECTION VII.1.2. Compliance with Laws, etc. The Company will, and will
cause each of its Restricted Subsidiaries to, comply in all material respects
with all applicable laws, rules, regulations and orders, such compliance to
include (i) except as permitted under Section 7.2.8, the maintenance and
preservation of its existence and qualification as a foreign business entity,
except where the failure to so qualify could not reasonably be expected to have
a Material Adverse Effect, and (ii) the payment, before the same become
delinquent, of all material taxes, assessments and governmental charges imposed
upon it or upon its property, except to the extent being contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
SECTION VII.1.3. Maintenance of Properties. Except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, the Company will, and will cause each of its Restricted Subsidiaries
to, maintain, preserve, protect and keep its properties (other than
insignificant properties) in good repair, working order and condition (ordinary
wear and tear excepted), and make necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times unless the Company determines in good faith
that the continued maintenance of any of its properties is no longer
economically desirable
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SECTION VII.1.4. Insurance. The Company will, and will cause each of
its Restricted Subsidiaries to, maintain or cause to be maintained with
responsible insurance companies insurance with respect to its properties and
business against such casualties and contingencies and of such types and in
such amounts as is customary in the case of similar businesses and with such
provisions and endorsements as the Agents may reasonably request and will, upon
request of the Agents, furnish to the Agents and each Lender a certificate of
an Authorized Officer of the Company setting forth the nature and extent of all
insurance maintained by the Company and its Restricted Subsidiaries in
accordance with this Section.
SECTION VII.1.5. Books and Records. The Company will, and will cause each
of its Restricted Subsidiaries to, keep books and records which accurately
reflect in all material respects all of its business affairs and transactions
and permit the Agents, each Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
but, unless an Event of Default shall have occurred and be continuing, not more
frequently than once in each Fiscal Year, to visit its corporate offices, to
discuss its financial matters with its officers and, only in the presence of a
representative of the Company (whose attendance at such discussion cannot be
unreasonably refused), its independent public accountants (and the Company
hereby authorizes such independent public accountants to discuss the Company's
financial matters with each Issuer and each Lender or its representatives, so
long as a representative of the Company is present) and to examine any of its
books or other financial records. The cost and expense of each such visit shall
be borne by the applicable Agent or Lender.
SECTION VII.1.6. Environmental Covenant. The Company will and will cause
each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith,
and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply
with the terms of this clause could not reasonably be expected to have
a Material Adverse Effect;
(b) promptly notify the Agents and provide copies of all
written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with
Environmental Laws which would have, or would reasonably be expected
to have, a Material Adverse Effect, and promptly cure and have
dismissed with prejudice any material actions and proceedings relating
to compliance with Environmental Laws, except to the extent being
diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP have been set aside on
its books; and
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(c) provide such information and certifications which the
Agents may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
SECTION VII.1.7. Future Subsidiaries. The Company hereby covenants and
agrees as follows:
(a) Upon any Person becoming, after the Closing Date, a
Subsidiary of the Company or (in the case of clause (a)(ii) below
only) upon the Company or any Subsidiary of the Company acquiring
additional Capital Stock of any existing Subsidiary other than an
Unrestricted Subsidiary, the Company shall notify the Agents thereof
and:
(i) the Company shall promptly cause any such
Subsidiary that is a U.S. Subsidiary (unless such U.S.
Subsidiary is an Unrestricted Subsidiary or the Trademark
Subsidiary) to execute and deliver to the Administrative
Agent, with counterparts for each Lender, the Subsidiary
Security Agreement (or a supplement thereto) (and, if such
Subsidiary owns any real property, to the extent required by
clause (b) of Section 7.1.8, a Mortgage), together with
Uniform Commercial Code financing statements (Form UCC-1)
executed and delivered by such U.S. Subsidiary naming such
U.S. Subsidiary as the debtor and the Administrative Agent as
the secured party, or other similar instruments or documents,
in appropriate form for filing under the Uniform Commercial
Code and any other applicable recording statutes, in the case
of real property, of all jurisdictions as may be necessary
or, in the opinion of the Administrative Agent, desirable to
perfect the security interest of the Administrative Agent
pursuant to the Subsidiary Security Agreement or a Mortgage,
as the case may be (other than the perfection of security
interests in motor vehicles); and
(ii) the Company shall promptly deliver, or cause to
be delivered, to the Administrative Agent under a Pledge
Agreement (or a supplement thereto) certificates (if any)
representing all of the issued and outstanding shares of
Capital Stock of such Subsidiary (other than any Unrestricted
Subsidiary) owned by the Company or any Subsidiary of the
Company that is a U.S. Subsidiary or a Subsidiary Guarantor
(other than any Unrestricted Subsidiary), as the case may be,
along with undated stock powers for such certificates,
executed in blank, or, if any securities subject thereto are
uncertificated securities, the Administrative Agent shall
have obtained "control" (as defined in the Uniform Commercial
Code applicable to the perfection of such securities) over
such securities, or other appropriate steps shall have been
taken under applicable law resulting in the perfection of the
security interest granted in such securities in favor of the
Administrative Agent pursuant to the terms of such Pledge
Agreement;
together, in each case, with such opinions, in form and substance and
from counsel satisfactory to the Agents, as the Agents may reasonably
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require; provided, however, that notwithstanding the foregoing, no
Non-U.S. Subsidiary shall be required to execute and deliver a
Mortgage or a Subsidiary Security Agreement (or a supplement thereto),
nor will the Company or any Subsidiary of the Company be required to
deliver in pledge pursuant to a Pledge Agreement in excess of 65% of
the total combined voting power of all classes of Capital Stock of a
Non-U.S. Subsidiary entitled to vote.
(b) Upon any Person (other than the Trademark Subsidiary or
any Unrestricted Subsidiary) becoming, after the Closing Date, a U.S.
Subsidiary of the Company, the Company shall notify the Agents of such
event, and the Company shall promptly cause such Subsidiary to execute
and deliver to the Administrative Agent, with counterparts for each
Lender, a Subsidiary Guaranty, together with such opinions, in form
and substance and from counsel satisfactory to the Agents, as the
Agents may reasonably require.
(c) If the election is made to treat any Restricted
Subsidiary that is a Non-U.S. Subsidiary, whether existing on the date
of this Agreement or acquired or created hereafter, as a partnership
or a branch of the Company for United States federal income tax
purposes, within 60 days after the election is made, the Company shall
notify the Agents of such event, and the Company shall promptly cause
such Restricted Subsidiary to execute and deliver to the
Administrative Agent, with counterparts for each Lender, a Subsidiary
Guaranty, together with such opinions, in form and substance and from
counsel satisfactory to the Agents, as the Agents may reasonably
require. Notwithstanding the foregoing, if any such Restricted
Subsidiary shall cease to be treated as a partnership or branch of the
Company, then, as of the date of such status termination, such
Restricted Subsidiary's status as a Subsidiary Guarantor hereunder
shall also cease.
SECTION VII.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property.
(a) Prior to entering into any new lease of real property or
renewing any existing lease of real property following the Closing
Date, the Company shall, and shall cause each of its U.S. Subsidiaries
(other than the Trademark Subsidiary or any Unrestricted Subsidiary)
to, use its (and their) commercially reasonable efforts (which shall
not require the expenditure of cash or the making of any material
concessions under the relevant lease) to deliver to the Administrative
Agent a Waiver executed by the lessor of any real property that is to
be leased by the Company or such U.S. Subsidiary for a term in excess
of one year in any state which by statute grants such lessor a
"landlord's" (or similar) Lien which is superior to the Administrative
Agent's, to the extent the value of any personal property of the
Company or its U.S. Subsidiaries (other than the Trademark Subsidiary
or any Unrestricted Subsidiary) to be held at such leased property
exceeds (or it is anticipated that the value of such personal property
will, at any point in time during the term of such leasehold, exceed)
$5,000,000.
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(b) In the event that the Company or any of its U.S.
Subsidiaries (other than any Unrestricted Subsidiary) shall acquire
any real property having a value as determined in good faith by the
Administrative Agent in excess of $3,000,000, the Company or the
applicable U.S. Subsidiary shall, promptly after such acquisition,
execute a Mortgage and provide the Administrative Agent with (i)
evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of such Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable effectively to create a valid, perfected, first priority
Lien, subject to the Liens permitted by Section 7.2.3, against the
properties purported to be covered thereby, (ii) mortgagee's title
insurance policies in favor of the Agents and the Lenders in amounts
and in form and substance and issued by insurers, reasonably
satisfactory to the Agents, with respect to the property purported to
be covered by such Mortgage, insuring that title to such property is
indefeasible and that the interests created by the Mortgage constitute
valid first Liens thereon free and clear of all defects and
encumbrances other than as approved by the Agents, and such policies
shall also include, to the extent available, a revolving credit
endorsement and such other endorsements as the Agents shall reasonably
request and shall be accompanied by evidence of the payment in full of
all premiums thereon, and (iii) such other approvals, opinions, or
documents as the Agents may reasonably request.
(c) In accordance with the terms and provisions of the Loan
Documents, the Company and each of its U.S. Subsidiaries (other than
any Unrestricted Subsidiary) shall provide the Agents with evidence of
all recordings and filings as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable to create a valid,
perfected, first priority Lien, subject to the Liens permitted by
Section 7.2.3, against all property acquired after the Closing Date
(excluding motor vehicles and (except to the extent required under
clause (b) of this Section 7.1.8) leases of and fee interests in real
property).
SECTION VII.1.9. Use of Proceeds, etc. The Borrowers shall
(a) apply the proceeds of the Revolving Loans and Swing Line
Loans for working capital and general corporate purposes of the
Company and its Subsidiaries; and
(b) use Letters of Credit only for purposes of supporting
working capital and general corporate purposes of the Company and its
Subsidiaries.
SECTION VII.1.10. Hedging Obligations. Within six months following the
Closing Date, the Administrative Agent shall have received evidence
satisfactory to it that the Borrowers have entered into Rate Protection
Agreements which shall protect the Borrowers against fluctuations in interest
rates with respect to at least 50% of the aggregate principal amount of the
Term Loans and the Senior Subordinated Debt for a period of at least three
years from the Amendment Effective Date, with terms reasonably satisfactory to
the Company and the Agents.
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SECTION VII.2. Negative Covenants. The Company agrees with the Agents and
each Lender that, from and after the Closing Date, until all Commitments have
terminated, and all Obligations have been paid and performed in full, the
Company will perform the obligations set forth in this Section 7.2.
SECTION VII.2.1. Business Activities. The Company will not, and will not
permit any of its Restricted Subsidiaries to, engage in any business activity,
except business activities in the building products industry and any business
reasonably ancillary or related thereto (the "Formica Business"); provided,
however, that, any term or provision hereof (including this Section 7.2) to the
contrary notwithstanding, the Trademark Subsidiary shall conduct no business
activity other than that directly connected with the ownership or licensing of
trademarks, trade names, trade secrets, trade dress, service marks, patents,
copyrights, mask works and other intellectual property associated with the
Formica Business and the licensing of such trademarks, trade names, trade
secrets, trade dress, service marks, patents, copyrights, mask works and other
intellectual property associated with the Formica Business to Holdings and its
Restricted Subsidiaries and the lending of the proceeds thereof to the Company
and its Restricted Subsidiaries and, without limiting the generality of the
foregoing, may not create, incur, assume or suffer to exist or otherwise become
or be liable in respect of any Indebtedness other than Indebtedness held by the
Company or any Subsidiary Guarantor.
SECTION VII.2.2. Indebtedness. The Company will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist
or otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness outstanding on the Original Closing Date and
identified in Item 7.2.2(a) ("Ongoing Indebtedness") of the Disclosure
Schedule and Indebtedness of PSM and its Subsidiaries outstanding on
the DS Holding Credit Agreement Closing Date and identified in Item
7.2.2(a) ("Ongoing Indebtedness") of the Disclosure Schedule and
guarantees by the Company or any of its Subsidiaries of any such
Indebtedness of PSM and its Subsidiaries whether or not such guarantee
was outstanding on the Amendment Effective Date, and refinancings and
replacements thereof in a principal amount not exceeding the principal
amount of the Indebtedness so refinanced or replaced and with an
average life to maturity of not less than the then average life to
maturity of the Indebtedness so refinanced or replaced;
(b) Indebtedness in respect of the Credit Extensions and other
Obligations;
(c) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries that is represented by Capitalized Lease
Liabilities, mortgage financings or purchase money obligations (but
only to the extent otherwise permitted by Section 7.2.7); provided
that the maximum aggregate amount of all Indebtedness permitted under
this clause (c) shall not at any time exceed $25,000,000;
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(d) Hedging Obligations of the Company or any of its
Restricted Subsidiaries in respect of the Credit Extensions or
otherwise entered into by the Company or any Restricted Subsidiary to
hedge against interest rate, currency exchange rate or commodity price
risk, in each case arising in the ordinary course of business of the
Company and its Restricted Subsidiaries and not for speculative
purposes;
(e) intercompany Indebtedness of (x) any Restricted
Subsidiary of the Company owing to the Company or any of its other
Restricted Subsidiaries or (y) the Company to any of its Restricted
Subsidiaries, which Indebtedness (i) to the extent requested by the
Administrative Agent or the Syndication Agent, shall be evidenced by
one or more promissory notes in form and substance satisfactory to the
Agents which (except in the case of any such notes held by a non-U.S.
Subsidiary or the Trademark Subsidiary) have been duly executed and
delivered to (and indorsed to the order of) the Administrative Agent
in pledge pursuant to a Pledge Agreement, and (ii) in the case of any
such Indebtedness owed by a Person other than the Company or any
Subsidiary Guarantor, shall not be forgiven or otherwise discharged
for any consideration other than payment (dollar for dollar or, if
denominated in a Foreign Currency, the applicable Currency) in cash
unless the Agents otherwise consent; provided that intercompany
Indebtedness incurred pursuant to this clause (e) which is owed by a
Non-U.S. Subsidiary of the Company that is not a Subsidiary Guarantor
(other than any such intercompany Indebtedness incurred to finance any
acquisition permitted hereunder) to the Company or a U.S. Subsidiary
or other Subsidiary Guarantor shall not exceed, at any time
outstanding, an aggregate principal amount equal to (w) $30,000,000
plus (x) the principal amount of any Indebtedness permitted pursuant
to clause (a) of this Section 7.2.2 which is refinanced or replaced
(in accordance with such clause (a)) with intercompany Indebtedness
pursuant to this clause (e) plus (y) the amount of such Indebtedness
constituting an Investment permitted under clause (f) of Section 7.2.5
plus (z) an amount equal to the aggregate principal amount of
intercompany Indebtedness outstanding on the Original Closing Date and
identified on Item 7.2.2(e) ("Ongoing Intercompany Indebtedness") of
the Disclosure Schedule and the aggregate principal amount of
Intercompany Indebtedness of Formica Enterprises B.V. and its
Subsidiaries resulting from the PSM Acquisition and outstanding on the
Amendment Effective Date and identified in Item 7.2.2(e) ("Ongoing
Intercompany Indebtedness") of the Disclosure Schedule;
(f) Senior Subordinated Debt and guarantees thereof in an
aggregate outstanding principal amount not to exceed $215,000,000;
(g) Assumed Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed
$25,000,000 at any time outstanding incurred as a result of an
Investment permitted pursuant to clause (k) of Section 7.2.5;
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(h) Indebtedness of Non-U.S. Subsidiaries of the Company
which are Restricted Subsidiaries but not Subsidiary Guarantors owing
to a Person other than the Company or any of its Subsidiaries (other
than Unrestricted Subsidiaries) in an aggregate principal amount not
to exceed (except if such excess is caused by changes in exchange
rates and is eliminated within five Business Days) at any time
outstanding the sum of (i) $10,000,000 plus (ii) the lesser of (A)
$30,000,000 and (B) the excess of (1) $120,000,000 over (2) the sum of
the aggregate principal amount of all Revolving Loans and Swing Line
Loans outstanding at such time (included, in the case of any Foreign
Currency Revolving Loan, at the U.S. Dollar Equivalent thereof) plus
the Letter of Credit Outstandings at such time (other than Letter of
Credit Outstandings in respect of Letters of Credit issued as credit
support to the Persons providing the loans or other extensions of
credit permitted and made pursuant to this clause (h));
(i) other unsecured Indebtedness of the Company and its U.S.
Subsidiaries and other Subsidiary Guarantors which are, in either
case, Restricted Subsidiaries in an aggregate amount at any time
outstanding not to exceed $25,000,000 plus the difference between the
maximum amount of Additional Loan Commitments that have been or could
be provided under clause (h) of Section 2.1.2 and the then outstanding
principal amount of Additional Loans made pursuant to clause (h) of
Section 2.1.2; and
(j) Indebtedness of a Spanish Subsidiary of the Company in an
aggregate principal amount the U.S. Dollar Equivalent of which
(determined as of the date such Indebtedness was incurred) does not
exceed $30,000,000 and the net proceeds of which are applied to prepay
Term Loans;
provided, however, that (i) no Indebtedness otherwise permitted hereunder
(other than Indebtedness permitted under clause (c)) may be incurred by the
Trademark Subsidiary and (ii) no Indebtedness otherwise permitted by clause
(c), (e), (g), (h) or (i) may be incurred if, after giving effect to the
incurrence thereof, any Default shall have occurred and be continuing.
SECTION VII.2.3. Liens. The Company will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
(a) Liens existing on the Original Closing Date and
identified in Item 7.2.3(a) ("Ongoing Liens") of the Disclosure
Schedule and Liens on the property or assets of PSM and its
Subsidiaries existing on the Amendment Effective Date and identified
in Item 7.2.3(a) ("Ongoing Liens") of the Disclosure Schedule, and
extensions and renewals thereof; provided that no such extension or
renewal shall increase the obligations secured by such Lien, extend
such Lien to additional assets or otherwise result in a Default
hereunder;
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(b) Liens securing payment of the Obligations or any obligation
under any Rate Protection Agreement granted pursuant to any Loan Document;
(c) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (c) of Section 7.2.2;
(d) Liens for taxes, assessments or other governmental
charges or levies, including Liens pursuant to Section 107(l) of
CERCLA or other similar law, not at the time delinquent or thereafter
payable without penalty or being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(e) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen, contractors, laborers and landlords or other like Liens
incurred in the ordinary course of business for sums not overdue for a
period of more than 30 days or being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;
(f) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, bids, statutory or regulatory obligations,
insurance obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(g) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or
the payment of which is covered in full by a bond or letter of credit
or (subject to a customary deductible) by insurance maintained with
responsible insurance companies and liens in existence during such
30-day period which liens secure any such bond or reimbursement
obligations with respect to any such letter of credit;
(h) Liens with respect to minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and
fixtures which do not materially detract from the value or materially
impair the use by the Company or any such Restricted Subsidiary in the
ordinary course of their business of the property subject thereto;
(i) licenses, leases or subleases granted by the Company or any
of its Restricted Subsidiaries to any other Person in the ordinary course
of business;
(j) Liens in the nature of trustees' Liens granted pursuant
to any indenture governing any Indebtedness permitted by Section
7.2.2, in each case in favor of the trustee under such indenture and
securing only obligations to pay compensation to such trustee, to
reimburse its expenses and to indemnify it under the terms thereof;
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(k) Liens of sellers of goods to the Company and its
Restricted Subsidiaries arising under Article 2 of the UCC or similar
provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase
price for such goods and related expenses;
(l) Liens securing Assumed Indebtedness of the Company and
its Subsidiaries permitted pursuant to clause (g) of Section 7.2.2;
provided, however, that such Liens shall only be permitted if (i) such
Liens attach solely to the assets and property acquired (or the assets
and property of the Person acquired) in connection with such Assumed
Indebtedness and not to any other assets of the Company or any of its
Restricted Subsidiaries theretofore or thereafter existing and (ii)
the Assumed Indebtedness and other secured Indebtedness of the Company
and its Subsidiaries secured by any such Lien shall not exceed 100% of
the fair market value of the assets being acquired in connection with
such Assumed Indebtedness;
(m) Liens on assets of Non-U.S. Subsidiaries of the Company that
are Restricted Subsidiaries securing Indebtedness permitted pursuant to
clause (h) or (j) of Section 7.2.2;
(n) Liens on the Capital Stock of Unrestricted Subsidiaries;
provided, however, that no Liens (other than Liens permitted pursuant to
clauses (a), (b), (d) and (g)) may be created, incurred, assumed or otherwise
permitted to exist upon any property, revenues or assets of the Trademark
Subsidiary.
SECTION VII.2.4. Financial Covenants.
(a) EBITDA. The Company will not permit EBITDA for the period
of four consecutive Fiscal Quarters ending on the last day of any
Fiscal Quarter occurring after the Closing Date and during any period
set forth below to be less than the amount set forth opposite such
period:
Period EBITDA
------ ------
07/01/98 to 09/30/98 $40,000,000
10/01/98 to 12/31/98 $42,500,000
01/01/99 to 03/31/99 $45,000,000
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07/01/99 to 09/30/99 $50,000,000
10/01/99 to 03/31/00 $55,000,000
04/01/00 to 09/30/00 $85,000,000
10/01/00 to 12/31/00 $90,000,000
01/01/01 to 06/30/02 $100,000,000
07/01/02 to 09/30/03 $110,000,000
07/01/03 to 06/30/04 $115,000,000
07/01/04 and thereafter $120,000,000
(b) Leverage Ratio. The Company will not permit the Leverage
Ratio as of the end of any Fiscal Quarter occurring after the Closing
Date and during any period set forth below to be greater than the
ratio set forth opposite such period:
Period Leverage Ratio
------ --------------
04/01/99 to 06/30/99 6.75:1
07/01/99 to 09/30/99 6.50:1
10/01/99 to 03/31/00 6.00:1
04/01/00 to 12/31/00 5.50:1
01/01/01 to 03/31/01 5.25:1
04/01/01 to 09/30/01 5.00:1
10/01/01 to 06/30/02 4.75:1
07/01/02 to 06/30/03 4.00:1
07/01/03 to 06/30/04 3.75:1
07/01/04 and thereafter 3.5:1
(c) Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter ending
after the Closing Date and occurring during any period set forth below
to be less than the ratio set forth opposite such period:
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Interest Coverage
Period Ratio
------ -----------------
07/01/98 to 12/31/98 1.20:1
01/01/99 to 06/30/99 1.30:1
07/01/99 to 09/30/99 1.50:1
10/01/00 to 06/30/02 1.75:1
07/01/02 to 06/30/03 2.25:1
07/01/03 to 6/30/04 2.50:01
07/01/04 and thereafter 2.75:1
(d) Fixed Charge Coverage Ratio. The Company will not permit
the Fixed Charge Coverage Ratio as of the end of any Fiscal Quarter
ending after the Amendment Effective Date to be less than 1.00 to
1.00.
SECTION VII.2.5. Investments. The Company will not, and will not permit
any of its Restricted Subsidiaries to, make, incur, assume or suffer to exist
any Investment in any other Person, except:
(a) (i) Investments existing on the Original Closing Date and
identified in Item 7.2.5(a) ("Ongoing Investments") of the Disclosure
Schedule and Investments of PSM and its Subsidiaries existing on the
Amendment Effective Date and identified in Item 7.2.5(a) ("Ongoing
Investments") of the Disclosure Schedule, and extensions and renewals
thereof; provided that no such extension or renewal shall increase the
amount of such Investment at the time of such extension or renewal and
(ii) Investments resulting from the conversion or recharacterization
of Ongoing Investments (including the conversion of any Ongoing
Investments constituting equity Investments into debt Investments);
provided that no such Investment may be made in reliance on this
clause (a)(ii) if such Investment would require, at the time of the
making thereof, the contribution or other payment by the Borrower or
any of its Restricted Subsidiaries of any additional cash or other
assets;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7 (including any such Investments
which would otherwise constitute Capital Expenditures but for the
operation of clause (i) of the proviso to the definition of "Capital
Expenditures");
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(e) Investments by the Company in any of its Restricted
Subsidiaries, or by any such Restricted Subsidiary in any other
Restricted Subsidiary or the Company, by way of contributions to
capital, so long as, after giving effect to such Investment, the
Company and its Restricted Subsidiaries have maintained or increased
their equity ownership in the Restricted Subsidiary in which such
Investment was made; provided that Investments made by the Company,
any U.S. Subsidiary or any Subsidiary Guarantor pursuant to this
clause (e) in any Non-U.S. Subsidiaries of the Company that are not
Subsidiary Guarantors (exclusive of (i) any Investment permitted as
intercompany Indebtedness pursuant to clause (y) of the proviso to
clause (e) of Section 7.2.2 or (ii) any Investment made to finance any
acquisition permitted hereunder) shall not exceed $15,000,000 in the
aggregate;
(f) additional Investments by the Company or any of its
Restricted Subsidiaries made with the proceeds of cash capital
contributions by FMH to the Company, cash proceeds from sales of
Capital Stock by the Company to FMH or repayments in cash of the
Company Intercompany Loan by FMH to the Company, in each case after
the Original Closing Date for the purpose of making an Investment
identified in a written notice to the Agents on or prior to the date
that such contribution, sale or repayment is made (provided that in no
event shall such Investments be made with any portion of Net Equity
Proceeds required to be applied as a mandatory prepayment pursuant to
clause (d) of Section 3.1.1);
(g) Investments to the extent the consideration received pursuant
to clause (c)(i) of Section 7.2.9 is not all cash;
(h) Investments in the form of loans to officers, directors
and employees of the Company and its Restricted Subsidiaries for the
sole purpose of purchasing Holdings common stock (or purchases of such
loans made by others) so long as Holdings makes a Capital Contribution
of the proceeds of any such purchase to FMH and FMH makes a Capital
Contribution of such proceeds to the Company;
(i) the Company Intercompany Loan;
(j) Investments in Unrestricted Subsidiaries of the Company in an
aggregate amount at any time outstanding not to exceed $10,000,000; or
(k) other Investments (including Assumed Indebtedness) made
by the Company or any of its Restricted Subsidiaries in an aggregate
amount not to exceed (x) $35,000,000 in any single transaction or
series of related transactions or (y) $85,000,000 in the aggregate
over the term of this Agreement, which Investments shall result in the
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Company or such Restricted Subsidiary acquiring (subject to Section
7.2.1) a majority controlling interest in the Person in which such
Investment was made or increasing any such controlling interest
maintained by it in such Person; provided that, (i) at all times when
the Leverage Ratio exceeds 6.00:1 (as set forth in the most recent
Compliance Certificate), the amount set forth in clause (x) above
shall be reduced to $10,000,000, and (ii) for purposes of determining
compliance with this clause (k), the aggregate amount of any Assumed
Indebtedness incurred pursuant to clause (g) of Section 7.2.2 by the
Company or any Restricted Subsidiary shall be included, dollar for
dollar, in computing the amount of any Investment made or to be made
pursuant to this clause (k);
(l) Investments in an aggregate amount not to exceed $17,500,000
in connection with the Fountainhead Acquisition;
(m) extensions of trade credit in the ordinary course of
business;
(n) Investments in Hedging Obligations permitted hereunder;
(o) Investments (including debt obligations and Capital
Stock) received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of
and other disputes with customers and suppliers arising in the
ordinary course of business;
(p) Investments arising in connection with the Contribution and
the Mergers;
(q) Letters of Credit issued in support of, and guarantees by
the Company or any Restricted Subsidiary of, Indebtedness permitted
under clauses (b), (c) , (d) (to the extent pursuant to a Rate
Protection Agreement) and (i) of Section 7.2.2; and
(r) the acquisition by the Company of 100% of the outstanding
Capital Stock of Stel Industries, Inc, a Washington corporation
("Stel"), for a purchase price (including the refinancing of
substantially all of Stel's outstanding indebtedness) of approximately
$48,500,000, subject to certain adjustments, pursuant to the Stock
Purchase Agreement among the Company and all of the stockholders of
Stel substantially in the form of the draft thereof dated December 7,
1999;
provided, however, that
(i) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held, notwithstanding that such
Investment if made thereafter would not comply with such requirements;
and
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(ii) no Investment otherwise permitted by clause (c) (except
to the extent permitted under Section 7.2.2), (e), (f), (h), (j), (k)
or (q) of this Section 7.2.5 shall be permitted to be made if,
immediately before or after giving effect thereto, any Default shall
have occurred and be continuing.
SECTION VII.2.6. Restricted Payments, etc. On and at all times after the
date hereof:
(a) the Company will not, and will not permit any of its
Restricted Subsidiaries to, declare, pay or make any payment,
dividend, distribution or exchange (in cash, property or obligations)
on or in respect of any shares of any class of Capital Stock of the
Company (now or hereafter outstanding) or on any warrants, options or
other rights with respect to any shares of any class of Capital Stock
of the Company (now or hereafter outstanding) (other than (i)
dividends or distributions payable in its common stock or warrants to
purchase its common stock and (ii) splits or reclassifications of its
stock into additional or other shares of its common stock) or apply,
or permit any of its Restricted Subsidiaries to apply, any of its
funds, property or assets to the purchase, redemption, exchange,
sinking fund or other retirement of, or agree or permit any of its
Restricted Subsidiaries to purchase, redeem or exchange, any shares of
any class of Capital Stock of the Company (now or hereafter
outstanding), or any warrants, options or other rights with respect to
any shares of any class of Capital Stock of the Company (now or
hereafter outstanding);
(b) the Company will not, and will not permit any of its
Restricted Subsidiaries to, (i) directly or indirectly make any
payment or prepayment of principal of, or make any payment of interest
on, any Senior Subordinated Debt on any day other than the stated,
scheduled date for such payment or prepayment set forth in the Senior
Subordinated Debt Documents, or which would violate the subordination
provisions of such Senior Subordinated Debt, or (ii) redeem, purchase
or defease any Senior Subordinated Debt (the foregoing prohibited acts
referred to in clauses (a) and (b) above are herein collectively
referred to as "Restricted Payments");
provided, however, that
(c) notwithstanding the provisions of clause (a) above, the
Company shall be permitted to make Restricted Payments to FMH to the
extent necessary to enable FMH and/or Holdings to:
(i) pay its overhead expenses in an amount not to
exceed $2,000,000 in the aggregate in any Fiscal Year
(exclusive of advisory fees in an amount not to exceed
$250,000 in the aggregate in any Fiscal Year);
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(iii) so long as (A) no Default shall have occurred
and be continuing on the date such Restricted Payment is
declared or to be made, nor would a Default result from the
making of such Restricted Payment, (B) after giving effect to
the making of such Restricted Payment, the Company shall be
in pro forma compliance with the covenant set forth in
Section 7.2.4(b) for the most recent full Fiscal Quarter
immediately preceding the date of the making of such
Restricted Payment for which the relevant financial
information has been delivered pursuant to clause (a) or
clause (b) of Section 7.1.1, and (C) an Authorized Officer of
the Company shall have delivered a certificate to the
Administrative Agent in form and substance satisfactory to
the Administrative Agent (including a calculation of the
Company's pro forma compliance with the covenant set forth in
Section 7.2.4(b) in reasonable detail) certifying as to the
accuracy of clauses (c)(iii)(A) and (c)(iii)(B) above,
repurchase, redeem or otherwise acquire or retire for value
any Capital Stock of Holdings or FMH, or any warrant, option
or other right to acquire Capital Stock of Holdings or FMH,
held by any member of management of the Company or any of its
Subsidiaries (including Management Investors) pursuant to any
management equity subscription agreement or stock option
agreement; provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Capital
Stock, warrants, options and other rights shall not exceed
(I) $7,500,000 over the life of this Agreement plus (II) the
aggregate cash proceeds received by the Company after the
Original Closing Date (net of any such proceeds constituting
Net Equity Proceeds required to be applied pursuant to
Section 3.1.1) from any issuance of Capital Stock of Holdings
or FMH, and warrants, options and other rights to acquire
Capital Stock of Holdings or FMH, by Holdings or the Company
to members of management of the Company and its Restricted
Subsidiaries;
(d) notwithstanding the provisions of clauses (a) and (b)
above, the Company and its Subsidiaries shall be permitted to make the
Restricted Payments included in the Transaction or the PSM
Transaction; and
(e) notwithstanding the provisions of clauses (a) and (b)
above, the Company may pay a non-cash dividend to FMH consisting
solely of a transfer of all or a portion of the Company Intercompany
Loan.
SECTION VII.2.7. Capital Expenditures, etc. With respect to Capital
Expenditures, the parties covenant and agree as follows:
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year, except Capital Expenditures of the
Company and its Restricted Subsidiaries which do not aggregate in
excess of (x) the amount set forth below opposite such Fiscal Year:
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Maximum Capital
Fiscal Year Expenditures
----------- ---------------
1998 $50,000,000
1999 $30,000,000
2000 and thereafter $35,000,000;
plus (y) an additional aggregate amount equal to $25,000,000 over the
term of this Agreement; provided, however, that, to the extent the
amount of Capital Expenditures permitted to be made in any Fiscal Year
pursuant to clause (x) of this Section exceeds the aggregate amount of
Capital Expenditures actually made during such Fiscal Year, such
excess amount (up to an aggregate of 50% of the amount of Capital
Expenditures permitted for such Fiscal Year, without giving effect to
this proviso) may be carried forward to (but only to) the next
succeeding Fiscal Year (any such amount to be certified by the Company
to the Agents in the Compliance Certificate delivered for the last
Fiscal Quarter of such Fiscal Year, and any such amount carried
forward to a succeeding Fiscal Year shall be deemed to be used prior
to the Company and its Restricted Subsidiaries using the amount of
Capital Expenditures permitted by this Section in such succeeding
Fiscal Year, without giving effect to such carry-forward).
(b) The parties acknowledge and agree that the permitted
Capital Expenditure level set forth in clause (a) above shall be
exclusive of the amount of (i) Capital Expenditures made with respect
to the Cost Savings Program which do not, together with all other
amounts paid or to be paid by the Company and its Restricted
Subsidiaries with respect to the Cost Savings Program, exceed in the
aggregate, in the case of Phase I Cost Savings (as defined in the
Information Memorandum), $19,800,000, and, in the case of Phase II
Cost Savings (as defined in the Information Memorandum) $6,200,000,
(ii) Capital Expenditures actually made with cash capital
contributions (other than any portion of Net Equity Proceeds required
to be applied as a mandatory prepayment pursuant to clause (d) of
Section 3.1.1) made, directly or indirectly, to the Company or any of
its Restricted Subsidiaries by FMH or Holdings, the proceeds of equity
issuances made by the Company or any of its Restricted Subsidiaries,
directly or indirectly, to FMH or Holdings, and repayments by FMH or
Holdings of the Intercompany Loans, in each case after the Original
Closing Date and specifically identified in a certificate delivered by
an Authorized Officer of the Company to the Agents on or before the
time such capital contribution or equity issuance is made; provided
that, to the extent any such cash capital contributions constitute Net
Equity Proceeds, only that portion of such Net Equity Proceeds which
are not required to be applied as a prepayment pursuant to clause (d)
of Section 3.1.1 may be used for Capital Expenditures pursuant to this
clause (b) and (iii) any portion of any acquisition that is permitted
under Section 7.2.5 (other than pursuant to clause (d) thereof) that
is accounted for as a Capital Expenditure (provided that, for the
avoidance of doubt, in the event the clause (or subclause) in Section
7.2.5 utilized in permitting such acquisition contains a dollar limit
for the aggregate amount of acquisitions permitted under such clause
(or subclause), such limit shall be decreased dollar-for-dollar by the
amount expended in respect of such acquisition that is so accounted as
a Capital Expenditure).
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SECTION VII.2.8. Consolidation, Merger, etc. The Company will not, and
will not permit any of its Restricted Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof) except:
(a) any such Restricted Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Company (so long as
the Company is the surviving corporation of such combination or
merger) or any other Restricted Subsidiary, and the assets or stock of
any Restricted Subsidiary may be purchased or otherwise acquired by
the Company or any other Restricted Subsidiary; provided that,
notwithstanding the above, a Restricted Subsidiary may only liquidate
or dissolve into, or merge with and into, another Restricted
Subsidiary of the Company if, after giving effect to such combination
or merger, the Company continues to own (directly or indirectly), and
the Administrative Agent continues to have pledged to it pursuant to a
Pledge Agreement, a percentage of the issued and outstanding shares of
Capital Stock (on a fully diluted basis) of the Restricted Subsidiary
surviving such combination or merger that is equal to or in excess of
the percentage of the issued and outstanding shares of Capital Stock
(on a fully diluted basis) of the Restricted Subsidiary that does not
survive such combination or merger that was (immediately prior to the
combination or merger) owned by the Company or pledged to the
Administrative Agent; and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Company or any of its
Restricted Subsidiaries (other than the Trademark Subsidiary) may
purchase all or substantially all of the assets of any Person (or any
division thereof) not then a Subsidiary, or acquire such Person by
merger, if permitted (without duplication) pursuant to Section 7.2.7
or clauses (f), (j), (k), (l) or (o) of Section 7.2.5; and
(c) the Borrower and its Restricted Subsidiaries may Consummate
the contribution and the Mergers.
SECTION VII.2.9. Asset Dispositions, etc. The Company will not, and will
not permit any of its Restricted Subsidiaries to, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or other rights with
respect to, all or any part of its assets, whether now owned or hereafter
acquired (including accounts receivable and Capital Stock of Restricted
Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does
not constitute a sale, transfer, lease, contribution or other
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conveyance of all or a substantial part of the Company's and its
Restricted Subsidiaries' assets, taken as a whole) or is of obsolete
or worn-out property, (ii) permitted by Section 7.2.8, or (iii)
between the Company and one of its Restricted Subsidiaries or between
Restricted Subsidiaries of the Company;
(b) such sale, transfer, lease, contribution or conveyance
constitutes (i) an Investment permitted under Section 7.2.5, (ii) a
Lien permitted under Section 7.2.3 or (iii) a Restricted Payment
permitted under Section 7.2.6;
(c) (i) such sale, transfer, lease, contribution or
conveyance of such assets is for fair market value and the
consideration consists of no less than 75% in cash, (ii) the Net
Disposition Proceeds received from such assets, together with the Net
Disposition Proceeds of all other assets sold, transferred, leased,
contributed or conveyed pursuant to this clause (c) since the Closing
Date, does not exceed (individually or in the aggregate) $75,000,000
over the term of this Agreement and (iii) an amount equal to the Net
Disposition Proceeds generated from such sale, transfer, lease,
contribution or conveyance is reinvested in the business of the
Company and its Restricted Subsidiaries, or, to the extent required
thereunder, is applied to prepay the Loans pursuant to the terms of
Section 3.1.1 and Section 3.1.2;
(d) such sale, transfer or conveyance results from a casualty or
condemnation in respect of such property or assets; or
(e) such sale, transfer or conveyance consists of the sale or
discount of overdue accounts receivable in the ordinary course of
business, but only in connection with the compromise or collection
thereof.
SECTION VII.2.10. Modification of Certain Agreements. Without the prior
written consent of the Required Lenders, the Company will not, and will not
permit any of its Restricted Subsidiaries to, consent to any amendment,
supplement, amendment and restatement, waiver or other modification of any of
the terms or provisions contained in, or applicable to, any Senior Subordinated
Debt Document, any Material Document or any schedules, exhibits or agreements
related thereto (the "Restricted Agreements"), in each case which would (i)
materially adversely affect the rights or remedies of the Lenders, or
materially increase the obligations of the Company or any Restricted Subsidiary
thereunder (other than adjustments to the cash consideration payable in respect
of the PSM Acquisition made pursuant to the terms of the PSM Acquisition
Agreement), or the Company's or any other Obligor's ability to perform
hereunder or under any Loan Document, (ii) in the case of the Stock Purchase
Agreement, which would increase Holdings', FMH's, the Company's or any of the
Company's Restricted Subsidiaries' obligations or liabilities, contingent or
otherwise, (iii) increase the principal amount of, or increase the interest
rate on, or add or increase any fee with respect to such Senior Subordinated
Debt or any such Restricted Agreement, advance any dates upon which payments of
principal or interest are due thereon or change any of the covenants with
respect thereto in a manner which is more restrictive to the Company or any of
its Restricted Subsidiaries or (iv) change the subordination provisions thereof
(including any default or conditions to an event of default relating thereto),
or change any collateral therefor (other than to release such collateral), if
(in the case of this clause (iv)), the effect of such amendment or change,
individually or together with all other amendments or changes made, is to
increase the obligations of the obligor thereunder or to confer any additional
rights on the holders of such Senior Subordinated Debt, or any such Restricted
Agreement (or a trustee or other representative on their behalf).
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SECTION VII.2.11. Transactions with Affiliates. The Company will not,
and will not permit any of its Restricted Subsidiaries to, enter into, or
cause, suffer or permit to exist any arrangement or contract with any of its
other Affiliates (other than any Obligor or any other Restricted Subsidiary of
the Company) unless such arrangement or contract is fair and equitable to the
Company or such Restricted Subsidiary and is an arrangement or contract of the
kind which would be entered into by a prudent Person in the position of the
Company or such Subsidiary with a Person which is not one of its Affiliates;
provided, however, that the Company and its Restricted Subsidiaries shall be
permitted to (i) perform any covenants or obligations (or receive any
benefits), or take any other actions contemplated under the Transaction
Documents, (ii) make any Restricted Payment permitted under Section 7.2.6,
(iii) enter into and perform their obligations under arrangements with the
Institutional Investors and their Affiliates for underwriting, investment
banking and advisory services on usual and customary terms and (iv) consummate
the Contribution and the Mergers.
SECTION VII.2.12. Negative Pledges, Restrictive Agreements, etc. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
enter into any agreement prohibiting:
(a) (i) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired securing any Obligation or any refinancing thereof that is
not contractually subordinated to other Indebtedness (other than, in
the case of any assets acquired with the proceeds of any Indebtedness
permitted under clause (c) of Section 7.2.2, customary limitations and
prohibitions contained in such Indebtedness and in the case of any
Indebtedness permitted under clause (g), (h), (i) or (j) of Section
7.2.2, customary limitations in respect of the Non-U.S. Subsidiaries
of the Company that shall have incurred such Indebtedness and their
assets), or (ii) the ability of the Company or any other Obligor to
amend or otherwise modify this Agreement or any other Loan Document;
or
(b) any Restricted Subsidiary from making any payments,
directly or indirectly, to the Company by way of dividends, advances,
repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Restricted Subsidiary to make any payment,
directly or indirectly, to the Company (other than (i) any limitations
or prohibitions existing in any Indebtedness permitted under clauses
(a) and (b) of Section 7.2.2 or any Lien permitted under clause (a) of
Section 7.2.3 or (ii) customary limitations and prohibitions in any
Indebtedness permitted under clause (h), (i) or (j) of Section 7.2.2
that are applicable to the Non-U.S. Subsidiaries of the Company that
have incurred such Indebtedness and their assets).
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SECTION VII.2.13. Stock of Subsidiaries. The Company will not permit any
Restricted Subsidiary to issue any Capital Stock (whether for value or
otherwise) to any Person other than the Company or another wholly-owned
Subsidiary of the Company. Notwithstanding any provision to the contrary
hereunder, the Company will not issue any class of Capital Stock (whether for
value or otherwise) which, either by its terms, by the terms of any security
into which it is convertible or exchangeable or otherwise, (i) is or upon the
happening of an event or passage of time would be required to be redeemed on or
prior to the first anniversary of the Stated Maturity Date for the U.S. Term B
Loans, (ii) is redeemable at the option of the holder thereof at any time prior
to such anniversary or (iii) is convertible into or exchangeable for debt
securities of the Company or any of its Restricted Subsidiaries at any time
prior to such anniversary.
SECTION VII.2.14. Sale and Leaseback. The Company will not, and will not
permit any of its Restricted Subsidiaries to, enter into any agreement or
arrangement with any other Person providing for the leasing by the Company or
any of its Restricted Subsidiaries of real or personal property which has been
or is to be sold or transferred by the Company or any of its Restricted
Subsidiaries to such other Person or to any other Person to whom funds have
been or are to be advanced by such Person on the security of such property or
rental obligations of the Company or any of its Restricted Subsidiaries;
provided that the Company and its Restricted Subsidiaries may enter into
operating leases of equipment in the ordinary course of business
notwithstanding that (i) the Company and its Restricted Subsidiaries may have
made progress or installment payments, deposits or other similar payments to or
for the benefit of the vendor or installer with respect to such equipment and
(ii) the Company or any such Restricted Subsidiary may receive from the lessor,
in connection with entering into such lease, payments on account of the
Company's or such Restricted Subsidiary's interests in such equipment arising
from such progress or installment payments, deposits or similar payments, so
long as such lease is entered into prior to or within 30 days after the making
of the final payment or deposit (which payment or deposit may be made by the
Company or any of its Restricted Subsidiaries or by the applicable lessor).
SECTION VII.2.15. Designation of Senior Indebtedness. The Company will not
designate any Indebtedness as "Designated Senior Indebtedness" pursuant to
clause (b) of the definition of such term in the Senior Subordinated Note
Indenture without the consent of the Required Lenders.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION VIII.1.1. Non-Payment of Obligations. (a) Any Borrower shall
default in the payment or prepayment of any principal of any Loan when due or
any Reimbursement Obligations or any deposit of cash for collateral purposes
pursuant to Section 2.8.4, as the case may be, or (b) any Obligor (including
any Borrower) shall default (and such default shall continue unremedied for a
period of three Business Days) in the payment when due of any interest or
commitment fee with respect to the Loans or Commitments or of any other
monetary Obligation.
SECTION VIII.1.2. Breach of Warranty. Any representation or warranty
of the Company or any other Obligor made or deemed to be made hereunder or in
any other Loan Document executed by it or any other writing or certificate
(including the Closing Date Certificate and Amendment Effective Date
Certificate) furnished by or on behalf of the Company or any other Obligor to
the Agents, any Issuer, the Arranger or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when
made in any material respect.
SECTION VIII.1.3. Non-Performance of Certain Covenants and Obligations.
The Company shall default in the due performance and observance of any of its
obligations under Sections 7.1.2(d), 7.1.9, 7.1.10, 7.1.11, 7.1.12 or 7.2
(other than Section 7.2.1).
SECTION VIII.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Company by the Administrative Agent at the
direction of the Required Lenders.
SECTION VIII.1.5. Default on Other Indebtedness. A default shall occur (i)
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 8.1.1, of the Company, any of its Restricted Subsidiaries,
FMH or Holdings having a principal amount, individually or in the aggregate, in
excess of $5,000,000, or (ii) a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness
having a principal amount, individually or in the aggregate, in excess of
$5,000,000 if the effect of such default is to accelerate the maturity of any
such Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such Indebtedness,
or any trustee or agent for such holders, to cause such Indebtedness to become
due and payable prior to its expressed maturity.
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SECTION VIII.1.6. Judgments. Any judgment or order for the payment of
money in excess of $5,000,000 (not covered by insurance from a responsible
insurance company that is not denying its liability with respect thereto) shall
be rendered against the Company, any of its Restricted Subsidiaries, FMH or
Holdings and remain unvacated, unpaid and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order, or (ii)
there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
SECTION VIII.1.7. Pension Plans. Any of the following events shall
occur with respect to any Pension Plan: (i) the termination of any Pension Plan
if, as a result of such termination, the Company would be required to make a
contribution to such Pension Plan, or would reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $5,000,000, or (ii)
a contribution failure occurs with respect to any Pension Plan sufficient to
give rise to a Lien under section 302(f) of ERISA in an amount in excess of
$5,000,000.
SECTION VIII.1.8. Change in Control. Any Change in Control shall occur.
SECTION VIII.1.9. Bankruptcy, Insolvency, etc. The Company or any of its
Restricted Subsidiaries (other than Immaterial Subsidiaries) or any other
Obligor shall:
(a) become insolvent or generally fail to pay, or admit in writing
its inability to pay, its debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for the
Company or any of such Restricted Subsidiaries (other than Immaterial
Subsidiaries) or any other Obligor or any property of any thereof, or
make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent, acquiescence
or assignment, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Company or any of
its Restricted Subsidiaries (other than Immaterial Subsidiaries) or
any other Obligor or for a substantial part of the property of any
thereof, and such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days, provided that the Company,
each such Restricted Subsidiary and each other Obligor hereby
expressly authorizes the Agents, each Issuer and each Lender to appear
in any court conducting any relevant proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan
Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Company or any
of its Restricted Subsidiaries (other than Immaterial Subsidiaries) or
any other Obligor, and, if any such case or proceeding is not
commenced by the Company or such Restricted Subsidiary or such other
Obligor, such case or proceeding shall be consented to or acquiesced
in by the Company or such Restricted Subsidiary or such other Obligor
or shall result in the entry of an order for relief or shall remain
for 60 days undismissed, provided that the Company, each such
Restricted Subsidiary and each other Obligor hereby expressly
authorizes the Agents, each Issuer and each Lender to appear in any
court conducting any such case or proceeding during such 60-day period
to preserve, protect and defend their rights under the Loan Documents;
or
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(e) take any action (corporate or otherwise) authorizing, or in
furtherance of, any of the foregoing.
SECTION VIII.1.10. Impairment of Security, etc. Any Loan Document, or
any Lien granted thereunder, shall (except in accordance with its terms or
pursuant to an agreement of the parties thereto), in whole or in part,
terminate, cease to be in full force and effect or cease to be the legally
valid, binding and enforceable obligation of any Obligor party thereto; the
Company or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof;
or any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by the Loan Documents, except to the extent any event referred to
above (a) relates to assets of the Company or any of its Subsidiaries which are
immaterial, (b) results from the failure of the Administrative Agent to
maintain possession of certificates representing securities pledged under any
Pledge Agreement or to file continuation statements under the Uniform
Commercial Code of any applicable jurisdiction or (c) is covered by a lender's
title insurance policy and the relevant insurer promptly after the occurrence
thereof shall have acknowledged in writing that the same is covered by such
title insurance policy.
SECTION VIII.1.11. Senior Subordinated Debt. The subordination provisions
relating to the Senior Subordinated Debt (the "Subordination Provisions") shall
fail to be enforceable by the Lenders (which have not effectively waived the
benefits thereof) in accordance with the terms thereof, or the principal or
interest on any Loan, Reimbursement Obligation or other Obligations shall fail
to constitute "Senior Debt" (as defined in any Senior Subordinated Debt) or
"senior indebtedness" (or any other similar term)), or the Company or any of
its Subsidiaries shall, directly or indirectly, disavow or contest in any
manner (i) the effectiveness, validity or enforceability of any of the
Subordination Provisions or (ii) that any of such Subordination Provisions
exist for the benefit of the Agents and the Lenders.
SECTION VIII.2. Action if Bankruptcy, etc. If any Event of Default
described in clauses (b), (c) and (d) of Section 8.1.9 shall occur with respect
to any Obligor, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations (including Reimbursement Obligations) shall
automatically be and become immediately due and payable, without notice or
demand and the Company shall automatically and immediately be obligated to
deposit with the Administrative Agent cash collateral in an amount equal to all
Letter of Credit Outstandings.
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SECTION VIII.3. Action if Other Event of Default. If any Event of Default
(other than an Event of Default described in clauses (b), (c) and (d) of
Section 8.1.9 with respect to any Obligor) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Company declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations (including Reimbursement Obligations) to be due and payable,
require applicable Borrowers to provide cash collateral (in the relevant
Currency) to be deposited with the Administrative Agent in an amount equal to
the undrawn amount of all Letters of Credit outstanding and/or declare the
Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the applicable Borrowers shall deposit with the
Administrative Agent cash collateral (in the relevant Currency) in an amount
equal to all Letter of Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION IX.1. Actions. Each Lender hereby appoints DLJ as its Syndication
Agent, BTCo as its Administrative Agent and CSFB as its Documentation Agent
under and for purposes of this Agreement and each other Loan Document. Each
Lender authorizes the Agents to act on behalf of such Lender under this
Agreement and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agents
(with respect to which each of the Agents agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Agents by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) the Agents,
ratably in accordance with their respective Term Loans outstanding and
Commitments (or, if no Term Loans or Commitments are at the time outstanding
and in effect, then ratably in accordance with the principal amount of Term
Loans held by such Lender, and their respective Commitments as in effect in
each case on the date of the termination of this Agreement), from and against
any and all liabilities, obligations, losses, damages, claims, costs or
expenses of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against, any of the Agents in any way relating to or
arising out of this Agreement and any other Loan Document, including reasonable
attorneys' fees, and as to which any Agent is not reimbursed by the Company or
any other Obligor (and without limiting the obligation of the Company or any
other Obligor to do so); provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from such Agent's
gross negligence or willful misconduct. The Agents shall not be required to
take any action hereunder or under any other Loan Document, or to prosecute or
defend any suit in respect of this Agreement or any other Loan Document, unless
it is indemnified hereunder to its satisfaction. If any indemnity in favor of
any of the Agents shall be or become, in such Agent's determination,
inadequate, the Agent may call for additional indemnification from the Lenders
and cease to do the acts indemnified against hereunder until such additional
indemnity is given.
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SECTION IX.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York time (5:00 p.m., London time, in the case of Foreign Currency
Loans other than Canadian Loans), on the day prior to a Borrowing or
Disbursement with respect to a Letter of Credit pursuant to Section 2.8.2 that
such Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the applicable Borrower a corresponding amount. If and to the extent that such
Lender shall not have made such amount available to the Administrative Agent,
such Lender severally agrees and the applicable Borrower agrees to repay the
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date the Administrative Agent made
such amount available to such Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing.
SECTION IX.3. Exculpation. None of the Agents or the Arranger nor any of
their respective directors, officers, employees or agents shall be liable to
any Lender for any action taken or omitted to be taken by it under this
Agreement or any other Loan Document, or in connection herewith or therewith,
except for its own willful misconduct or gross negligence (determined by a
court of competent jurisdiction in a final proceeding), nor responsible for any
recitals or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or any other Loan
Document, nor for the creation, perfection or priority of any Liens purported
to be created by any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by any Borrower of its
obligations hereunder or under any other Loan Document. Any such inquiry which
may be made by any Agent or any Issuer shall not obligate it to make any
further inquiry or to take any action. The Agents and the Issuers shall be
entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Agents or the
Issuers, as applicable, believe to be genuine and to have been presented by a
proper Person.
SECTION IX.4. Successor. The Syndication Agent or the Documentation Agent
may resign as such upon one Business Day's notice to the Company and the
Administrative Agent. The Administrative Agent may resign as such at any time
upon at least 30 days' prior notice to the Company and all Lenders. If the
Administrative Agent at any time shall resign, the Required Lenders may, with
the prior consent of the Company (which consent shall not be unreasonably
withheld), appoint another Lender as a successor Administrative Agent which
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shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the United States or a United States
branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from
the retiring Administrative Agent such documents of transfer and assignment as
such successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of (i) this Article IX shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement, and (ii) Section 11.3 and Section 11.4 shall
continue to inure to its benefit.
SECTION IX.5. Credit Extensions by Each Agent and Issuer. Each Agent and
each Issuer shall have the same rights and powers with respect to (x) (i) in
the case of an Agent, the Credit Extensions made by it or any of its Affiliates
and (ii) in the case of an Issuer, the Loans made by it or any of its
Affiliates, and (y) the Notes, if any, held by it or any of its Affiliates as
any other Lender and may exercise the same as if it were not an Agent or an
Issuer. Each Agent, each Issuer and each of their respective Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Company or any Subsidiary or Affiliate of any Borrower as if
such Agent or Issuer were not an Agent or Issuer hereunder.
SECTION IX.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent, the Arranger, each Issuer and each other Lender,
and based on such Lender's review of the financial information of the
Borrowers, this Agreement, the other Loan Documents (the terms and provisions
of which being satisfactory to such Lender) and such other documents,
information and investigations as such Lender has deemed appropriate, made its
own credit decision to extend its Commitments. Each Lender also acknowledges
that it will, independently of each Agent, the Arranger, each Issuer and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION IX.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by such Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for such Lender's account and copies of all other communications
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received by the Administrative Agent from any Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of this
Agreement.
SECTION IX.8. The Syndication Agent, the Administrative Agent and the
Documentation Agent. Notwithstanding anything else to the contrary contained in
this Agreement or any other Loan Document, the Agents, in their respective
capacities as such, shall have no duties or responsibilities under this
Agreement or any other Loan Document nor any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against any Agent, in such capacity, except as are explicitly set forth herein
or in the other Loan Documents.
ARTICLE X
COMPANY GUARANTY
SECTION X.1. Guaranty. The Company hereby absolutely, unconditionally and
irrevocably
(a) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of each Foreign
Borrower and each other Obligor now or hereafter existing under this
Agreement and each other Loan Document to which such Foreign Borrower
and each other Obligor is or may become a party, whether for
principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic
stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. ss.362(a), and the operation of Sections 502(b) and 506(b) of
the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)),
and
(b) indemnifies and holds harmless each Lender for any and
all costs and expenses (including reasonable attorney's fees and
expenses) incurred by such Lender or such holder, as the case may be,
in enforcing any rights under this Article X;
This Article X constitutes a guaranty of payment when due and not of
collection, and the Company specifically agrees that it shall not be necessary
or required that any Lender exercise any right, assert any claim or demand or
enforce any remedy whatsoever against any Foreign Borrower or any other Obligor
(or any other Person) before or as a condition to the obligations of the
Company hereunder.
SECTION X.2. Acceleration of Obligations Hereunder. The Company agrees
that, in the event of the dissolution or insolvency of any Foreign Borrower or
any other Obligor, or the inability or failure of any Foreign Borrower or any
other Obligor to pay its debts as they become due, or an assignment by any
Foreign Borrower or any other Obligor for the benefit of creditors, or the
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commencement of any case or proceeding in respect of any Foreign Borrower or
any other Obligor under any bankruptcy, insolvency or similar laws, and if such
event shall occur at a time when any of the Obligations of any Foreign Borrower
or any other Obligor may not then be due and payable, the Company agrees that
it will pay to the Lenders forthwith the full amount which would be payable
hereunder by such Foreign Borrower if all such Obligations were then due and
payable. The foregoing provisions of this Section 10.2 shall not be applicable
if the dissolution, insolvency or other events described above relate to an
Immaterial Subsidiary.
SECTION X.3. Obligations Hereunder Absolute, etc. The obligations of the
Company under this Article X shall in all respects be a continuing, absolute,
unconditional and irrevocable guaranty of payment, and shall remain in full
force and effect until all Obligations of all Foreign Borrowers and each other
Obligor have been paid in full and all Commitments shall have terminated. The
Company guarantees that the Obligations of the Foreign Borrowers and each other
Obligor will be paid strictly in accordance with the terms of this Agreement
and each other Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of any Lender or any holder of any Note with
respect thereto. The liability of the Company under this Article X shall be
absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of other
provisions of this Agreement or any other Loan Document;
(b) the failure of any Lender
(i) to assert any claim or demand or to enforce any
right or remedy against any Foreign Borrower, any other
Obligor or any other Person (including any other guarantor)
under the provisions of this Agreement, any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Obligations
of any Foreign Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of any Foreign
Borrower or any other Obligor, or any other extension, compromise or
renewal of any Obligation of any Foreign Borrower or any other
Obligor;
(d) any reduction, limitation, impairment or termination of
any Obligation of any Foreign Borrower or any other Obligor for any
reason, including any claim of waiver, release, surrender, alteration
or compromise, and shall not be subject to (and the Company hereby
waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligation of any
Foreign Borrower, any other Obligor or otherwise;
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(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the other
terms of this Agreement or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Lender securing any of the Obligations of any
Foreign Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any
Foreign Borrower, any other Obligor, any surety or any guarantor.
SECTION X.4. Reinstatement, etc. The Company agrees that this Article X
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations of any Foreign
Borrower is rescinded or must otherwise be restored by any Lender upon the
insolvency, bankruptcy or reorganization of any Foreign Borrower or any other
Obligor or otherwise, all as though such payment had not been made.
SECTION X.5. Waiver, etc. The Company hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the
Obligations of the Foreign Borrowers or any other Obligor and this Article X
and any requirement that the Administrative Agent and any other Lender protect,
secure or perfect or insure any security interest or Lien, or any property
subject thereto, or exhaust any right or take any action against any Foreign
Borrower, any other Obligor or any other Person (including any other guarantor)
or entity or any collateral securing the Obligations of the Foreign Borrowers
or any other Obligor, as the case may be.
SECTION X.6. Postponement of Subrogation. The Company agrees that it will
not exercise any rights which it may acquire by way of subrogation under this
Article X, by any payment made hereunder or otherwise, until the prior payment,
in full and in cash, of all Obligations of the Foreign Borrowers and each other
Obligor. Any amount paid to the Company on account of any such subrogation
rights prior to the payment in full of all Obligations of the Foreign Borrowers
and each other Obligor shall be held in trust for the benefit of the Lenders
and shall immediately be paid to the Lenders and credited and applied against
the Obligations of the Foreign Borrowers and each other Obligor whether matured
or unmatured, in accordance with the terms of this Agreement; provided,
however, that if all Obligations of the Foreign Borrowers and each other
Obligor have been paid in full and all Commitments have been permanently
terminated, each Lender agrees that, at the Company's request, the Lenders will
execute and deliver to the Company appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to the Company of an interest in the Obligations of the Foreign
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Borrowers and each other Obligor resulting from such payment by the Company. In
furtherance of the foregoing, for so long as any Obligations of any Foreign
Borrowers or any Commitments remain outstanding, the Company shall refrain from
taking any action or commencing any proceeding against any Foreign Borrower or
any other Obligor (or its successors or assigns), whether in connection with a
bankruptcy proceeding or otherwise to recover any amounts in respect of
payments made under this Article X to any Lender.
SECTION X.7. Successors, Transferees and Assigns; Transfers of Notes, etc.
Without limiting the generality of Section 11.11, any Lender may assign or
otherwise transfer (in whole or in part) any Obligation of any Borrower held by
it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including this Article X) or otherwise,
subject, however, to any contrary provisions in such assignment or transfer,
and to the provisions of Section 11.11 and Article IX of this Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION XI.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented
to by the Company and each Obligor party thereto and by the Required Lenders;
provided, however, that no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 11.1, or clause (i) of Section 11.10,
change the definitions of "Required Lenders" or "Total Exposure
Amount", increase any Commitment Amount or the Percentage of any
Lender (other than pursuant to Section 2.5 or clause (h) of Section
2.1.2), reduce any fees described in Section 3.3 (other than the
administration fee referred to in Section 3.3.2), release any material
Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty, if any, release all or substantially all of the collateral
security (except in each case as otherwise specifically provided in
this Agreement, the Subsidiary Guaranty, a Security Agreement or a
Pledge Agreement) or extend any Commitment Termination Date, shall be
made without the consent of each Lender adversely affected thereby;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment of principal of or interest on or fees payable in
respect of any Loan or reduce the principal amount of or rate of
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interest on or fees payable in respect of any Loan or any
Reimbursement Obligations (which shall in each case include the
conversion of all or any part of the Obligations into equity of any
Obligor), shall be made without the consent of the Lender which has
made such Loan or, in the case of a Reimbursement Obligation, the
Issuer owed, and those Lenders participating in, such Reimbursement
Obligation;
(d) affect adversely the interests, rights or obligations of
any Agent, Issuer or Arranger (in its capacity as Agent, Issuer or
Arranger), shall be made unless consented to by such Agent, Issuer or
Arranger, as the case may be;
(e) have the effect (either immediately or at some later
time) of enabling any Borrower to satisfy a condition precedent to the
making of a Revolving Loan or the issuance of a Letter of Credit,
shall be made without the consent of Lenders holding at least 51% of
the Revolving Loan Commitments; or
(f) amend, modify or waive the provisions of clause (a)(i) of
Section 3.1.1 or clause (b) of Section 3.1.2 or effect any amendment,
modification or waiver that by its terms adversely affects the rights
of Lenders participating in any Tranche differently from those of
Lenders participating in other Tranches, shall be made without the
consent of the holders of at least 51% of the aggregate amount of
Loans outstanding under the Tranche or Tranches affected by such
amendment, modification or waiver, or, in the case of an amendment,
modification or waiver affecting any Tranche or Tranches of Revolving
Credit Commitments, the Lenders holding at least 51% of the Revolving
Loan Commitments in respect of such Tranche or Tranches.
No failure or delay on the part of any Agent, any Issuer or any Lender in
exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on any Borrower in
any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by any Agent, any Issuer or any Lender
under this Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
SECTION XI.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party
at its address or facsimile number set forth on Schedule II hereto or, in the
case of a Lender that becomes a party hereto after the date hereof, as set
forth in the Lender Assignment Agreement pursuant to which such Lender becomes
a Lender hereunder or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted
(and telephonic confirmation of receipt thereof has been received).
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SECTION XI.3. Payment of Costs and Expenses. The Company agrees to pay on
demand all reasonable expenses of each of the Agents (including the reasonable
fees and out-of-pocket expenses of a single counsel to the Agents and of local
or foreign counsel, if any, who may be retained by counsel to the Agents) in
connection with
(a) the syndication by the Syndication Agent and the Arranger
of the Loans, the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements or
other modifications to this Agreement or any other Loan Document as
may from time to time hereafter be required, whether or not the
transactions contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each
Mortgage, each Pledge Agreement and each Security Agreement and/or any
Uniform Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any and
all other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or of
such Mortgage, Pledge Agreement or Security Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Company further agrees to pay, and to save the Agents, the Issuers and the
Lenders harmless from all liability for, any stamp or other similar taxes which
may be payable in connection with the execution or delivery of this Agreement,
the Credit Extensions made hereunder or the issuance of any Notes or Letters of
Credit or any other Loan Documents. The Company also agrees to reimburse each
Agent, each Issuer and each Lender upon demand for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and legal expenses) incurred by
such Agent, such Issuer or such Lender in connection with (x) the negotiation
of any restructuring or "work-out", whether or not consummated, of any
Obligations and (y) the enforcement of any Obligations.
SECTION XI.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Company hereby, to the fullest extent permitted under applicable law,
indemnifies, exonerates and holds each Agent, each Issuer, the Arranger and
each Lender and each of their respective Affiliates, and each of their
respective partners, officers, directors, employees and agents, and each other
Person controlling any of the foregoing within the meaning of either Section 15
of the Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended (collectively, the "Indemnified Parties"),
free and harmless from and against any and all actions, causes of action,
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suits, losses, costs, liabilities and damages, and expenses actually incurred
in connection therewith (irrespective of whether any such Indemnified Party is
a party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (excluding
any successful action brought by or on behalf of any Borrower as the
result of any failure by any Lender to make any Credit Extension
hereunder);
(c) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by the Company or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not such Agent, such Issuer, such Arranger or such
Lender is party thereto;
(d) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter relating
to the Company's or any of its Subsidiaries' compliance with or
liability under Environmental Law or the Release by the Company or any
of its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission or release from, any real
property owned or operated by the Company or any Subsidiary thereof of
any Hazardous Material present on or under such property in a manner
giving rise to liability under any Environmental Law at or prior to
the time the Company or such Subsidiary owned or operated such
property (including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, the Company
or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or willful misconduct (determined by a court of competent
jurisdiction in a final proceeding) or any Hazardous Materials that are first
manufactured, emitted, generated, treated, released, stored or disposed of on
any real property of the Company or any of its Subsidiaries or any violation of
Environmental Law or any other condition that gives rise to liability under any
Environmental Law, to the extent that the Company can demonstrate, to the
reasonable satisfaction of the Agents, and that such event first occurred on or
with respect to any real property of the Company or any of its Subsidiaries
after such real property was transferred to any Indemnified Person or its
successor by foreclosure sale, deed in lieu of foreclosure, or similar transfer
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and such manufacture, emission, release, generation, treatment, storage,
disposal, violation or condition was not actually caused by Holdings, FMH, the
Company or any of the Company's Subsidiaries. The Company and its permitted
successors and assigns hereby waive, release and agree not to make any claim,
or bring any cost recovery action against, any Agent, any Issuer, the Arranger
or any Lender under CERCLA or any state equivalent, or any similar law now
existing or hereafter enacted, except to the extent arising out of the gross
negligence or willful misconduct of any Indemnified Party determined by a court
of competent jurisdiction in a final proceeding. It is expressly understood and
agreed that to the extent that any of such Persons is strictly liable under any
Environmental Laws, the Company's obligation to such Person under this
indemnity shall likewise be without regard to fault on the part of the Company,
to the extent permitted under applicable law, with respect to the violation or
condition which results in liability of such Person. Notwithstanding anything
to the contrary herein, each Agent, each Issuer, the Arranger and each Lender
shall be responsible with respect to any Hazardous Materials that are first
manufactured, emitted, generated, treated, released, stored or disposed of on
any real property of the Company or any of its Subsidiaries or any violation of
Environmental Law or any other condition that gives rise to liability under any
Environmental Law that first occurs on or with respect to any such real
property after such real property is transferred to any Agent, Issuer, Arranger
or Lender or to its successor by foreclosure sale, deed in lieu of foreclosure,
or similar transfer, except to the extent such manufacture, emission, release,
generation, treatment, storage, disposal, violation or condition is actually
caused by Holdings, FMH, the Company or any of the Company's Subsidiaries. If
and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
SECTION XI.5. Survival. The obligations of the Company under Sections 4.3,
4.4, 4.5, 4.6, 11.3 and 11.4, and the obligations of the Lenders under Sections
4.8 and 9.1, shall in each case survive any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by the Company and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION XI.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION XI.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
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SECTION XI.8. Execution in Counterparts. This Agreement may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION XI.9. Governing Law; Entire Agreement. THIS AGREEMENT AND, EXCEPT
TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED THEREIN, EACH OTHER LOAN DOCUMENT
SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK. This Agreement and the other Loan Documents
constitute the entire understanding among the parties hereto with respect to
the subject matter hereof and supersede any prior agreements, written or oral,
with respect thereto. Upon the execution and delivery of this Agreement by the
parties hereto, all obligations and liabilities of the Institutional Investors
and any of their Affiliates under or relating or with respect to the Commitment
Letter shall be terminated and of no further force or effect.
SECTION XI.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that (i) no Borrower may assign or
transfer its rights or obligations hereunder without the prior written consent
of each of the Agents and all Lenders, and (ii) the rights of sale, assignment
and transfer of the Lenders are subject to Section 11.11.
SECTION XI.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons, on a non pro rata basis (except
as provided below), in accordance with this Section 11.11.
SECTION XI.11.1. Assignments. Any Lender (the "Assignor Lender"),
(a) with the written consents of the Company, the
Administrative Agent, the Syndication Agent and (in the case of any
assignment of participations in Letters of Credit or Revolving Loan
Commitments) the applicable Issuer (which consents shall not be
unreasonably delayed or withheld and which consents of the Agents and
the Issuers shall not be required in the case of assignments made by
the Agents or any of their Affiliates), may at any time assign and
delegate to one or more commercial banks or other financial
institutions or funds which are regularly engaged in making,
purchasing or investing in loans or securities, and
(b) with notice to the Company, the Administrative Agent, the
Syndication Agent and (in the case of any assignment of participations
in Letters of Credit or Revolving Loan Commitments) the applicable
Issuer, but without the consent of the Company, the Agents or any
Issuer, may assign and delegate to any of its Affiliates or Related
Funds or to any other Lender or any Affiliate or Related Fund of any
other Lender
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(each Person described in either of the foregoing clauses as being the Person
to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), all or any fraction of such Lender's Term
Loans of any Tranche, Uncommitted Revolving Loans of any Tranche or Committed
Revolving Loans, participations in Letters of Credit, Letter of Credit
Outstandings with respect thereto and related Commitment of any Tranche (which
assignment and delegation shall be, as among Revolving Loan Commitments,
Committed Revolving Loans and participations in Letters of Credit in any
Currency, of a constant, and not a varying, percentage) in, unless the Company,
the Administrative Agent and the Syndication Agent otherwise agree, a minimum
aggregate amount of (i) $5,000,000 (or, in the case of U.S. Term B Loans and
Additional U.S. Term Loans, $2,500,000) or, so long as after giving effect to
such assignment and delegation the aggregate amount of the Assignor Lender's
outstanding Term Loans and Commitments and the Assignee Lender's outstanding
Term Loans and Commitments are each greater than $5,000,000, $1,000,000 (or, in
the case of Foreign Currency Loans, the multiple of 100,000 units of the
Currency of such Loans the U.S. Dollar Equivalent of which is nearest to
$5,000,000 or $1,000,000, as the case may be) (provided that (A) assignments
that are made on the same day to funds that (1) invest in commercial loans and
(2) are managed or advised by the same investment advisor or any Affiliate of
such investment advisor may be treated as a single assignment for purposes of
such minimum amount and (B) no such minimum amount shall be required in the
case of any assignment of U.S. Term B Loans or Additional U.S. Term Loans
between two Lenders so long as after giving effect to such assignment the
aggregate amount of the Assignor Lender's outstanding U.S. Term B Loans or
Additional U.S. Term Loans, as the case may be, equals or exceeds $2,500,000)
or (ii) with respect to the Tranche in which such assignment is to occur, the
then remaining amount of such Lender's Term Loans, Uncommitted Revolving Loans
or Committed Revolving Loans, participations in Letters of Credit and related
Commitment in any Currency, as the case may be; provided, however, that any
such Assignee Lender will comply, if applicable, with the provisions contained
in Section 4.6 and the Borrowers, each other Obligor and the Agents shall be
entitled to continue to deal solely and directly with such Lender in connection
with the interests so assigned and delegated to an Assignee Lender until
(i) written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee Lender, shall have been given to the
Company, the applicable Borrower (if other than the Company) and the
Agents by such Lender and such Assignee Lender;
(ii) such Assignee Lender shall have executed and delivered
to the applicable Borrower and the Agents a Lender Assignment
Agreement, accepted by the Agents;
(iii) the processing fees described below shall have been paid; and
(iv) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to clause (b) of
Section 2.9.
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From and after the date that the Agents accept such Lender Assignment Agreement
and such assignment and delegation is registered in the Register pursuant to
clause (b) of Section 2.9, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the Assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Any Assignor Lender that shall have previously requested and
received any Note or Notes in respect of any Tranche to which any such
assignment applies shall, upon the acceptance by the Administrative Agent of
the applicable Lender Assignment Agreement, ▇▇▇▇ such Note or Notes "exchanged"
and deliver them to the applicable Borrower (against, if the Assignor Lender
has retained Loans or Commitments with respect to the applicable Tranche and
has requested replacement Notes pursuant to clause (b)(ii) of Section 2.9, its
receipt from the applicable Borrower of replacement Notes in the principal
amount of the Loans and Commitments of the applicable Tranche retained by it).
Such Assignor Lender or such Assignee Lender (unless the Assignor Lender or the
Assignee Lender is an Agent or one of its Affiliates) must also pay a
processing fee to the Administrative Agent upon delivery of any Lender
Assignment Agreement in the amount of $1,500, unless such assignment and
delegation is by a Lender to its Affiliate or Related Fund or if such
assignment and delegation is by a Lender to a Federal Reserve Bank, as provided
below or is otherwise consented to by the Administrative Agent. Any attempted
assignment and delegation not made in accordance with this Section 11.11.1
shall be, unless otherwise consented to by the Administrative Agent and the
Company, null and void. Nothing contained in this Section 11.11.1 shall prevent
or prohibit any Lender from pledging its rights (but not its obligations to
make Loans or participate in Letters of Credit or Letter of Credit
Outstandings) under this Agreement and/or its Loans and/or its Notes hereunder
(i) to a Federal Reserve Bank in support of borrowings made by such Lender from
such Federal Reserve Bank, (ii) in the case of a Lender that is an investment
fund, to its trustee in support of its obligations to its trustee, in either
case without notice to or consent of the Company or the Agents or (iii) in
connection with the securitization of all or any portion of its assets;
provided, however, that (A) such Lender shall remain a "Lender" under this
Agreement and shall continue to be bound by the terms and conditions set forth
in, and shall continue to exercise all of its voting rights under, this
Agreement and the other Loan Documents, and (B) any assignment by such trustee
of its rights under this Agreement shall be subject to the provisions of clause
(a) of this Section 11.11.1. In the event that S&P, ▇▇▇▇▇'▇ or ▇▇▇▇▇▇▇▇'▇
BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders that are
insurance companies (or Best's Insurance Reports, if such insurance company is
not rated by Insurance Watch Ratings Service)) shall, after the date that any
Lender with a Commitment to make Revolving Loans or participate in Letters of
Credit becomes a Lender, downgrade the long-term certificate of deposit rating
or long-term senior unsecured debt rating of such Lender, and the resulting
rating shall be below BBB-, Baa3 or C (or BB, in the case of Lender that is an
insurance company (or B, in the case of an insurance company not rated by
InsuranceWatch Ratings Service)) respectively, then the Issuers or the Company
(with the consent of the Agents and the Issuers) shall have the right, but not
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the obligation, upon notice to such Lender and the Agents, to replace such
Lender with an Assignee Lender in accordance with and subject to the
restrictions contained in this Section, and such Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in this Section) all its interests, rights and
obligations in respect of its Revolving Loan Commitments under this Agreement
to such Assignee Lender; provided, however, that (i) no such assignment shall
conflict with any law, rule, regulation or order of any governmental authority
and (ii) such Assignee Lender shall pay to such Lender in immediately available
funds on the date of such assignment the principal of and interest and fees (if
any) accrued to the date of payment on the Loans made, and Letters of Credit
participated in, by such Lender hereunder and all other amounts accrued for
such Lender's account or owed to it hereunder.
SECTION XI.11.2. Participations. Any Lender may at any time sell to one or
more commercial banks or other Persons (each such commercial bank and other
Person being herein called a "Participant") participating interests in any of
the Loans, Commitments, participations in Letters of Credit and Letter of
Credit Outstandings or other interests of such Lender hereunder; provided,
however, that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Company and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and
each of the other Loan Documents;
(d) no Participant, unless such Participant is itself a
Lender, shall be entitled to require such Lender to take or refrain
from taking any action hereunder or under any other Loan Document,
except that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, agree to (i) any
reduction in the interest rate or amount of fees that such Participant
is otherwise entitled to, (ii) a decrease in the principal amount, or
an extension of the final Stated Maturity Date, of any Loan in which
such Participant has purchased a participating interest or (iii) a
release of all or substantially all of the collateral security under
the Loan Documents or Holdings, FMH or any material Subsidiary
Guarantor under its guaranty hereunder, if any, in each case except as
otherwise specifically provided in a Loan Document; and
(e) no Borrower shall be required to pay any amount under
Sections 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4 that is greater than the
amount which it would have been required to pay had no participating
interest been sold.
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The Borrowers acknowledge and agree, subject to clause (e) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes
of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and 11.4, shall be considered a
Lender.
SECTION XI.12. Other Transactions. Nothing contained herein shall preclude
any Agent or any other Lender from engaging in any transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with any
Borrower or any of its Affiliates in which such Borrower or such Affiliate is
not restricted hereby from engaging with any other Person.
SECTION XI.13. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS,
THE ISSUERS OR THE BORROWERS RELATING THERETO SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE
STATE OF NEW YORK, NEW YORK COUNTY, OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWERS HEREBY EXPRESSLY AND
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
NEW YORK COUNTY, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE BORROWERS IRREVOCABLY CONSENT TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWERS HEREBY EXPRESSLY AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
THEY MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE BORROWERS HAVE OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO THEMSELVES OR THEIR PROPERTY, THE BORROWERS HEREBY IRREVOCABLY WAIVE
(TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) SUCH IMMUNITY IN RESPECT OF
THEIR OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
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SECTION XI.14. Waiver of Jury Trial. THE AGENTS, THE ISSUERS, THE
LENDERS AND THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS OR THE
BORROWERS RELATING THERETO. THE BORROWERS ACKNOWLEDGE AND AGREE THAT THEY HAVE
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH THEY ARE A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE ISSUERS AND THE LENDERS
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION XI.15. Judgment Currency. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due hereunder, under
any Note or under any other Loan Document in another currency into U.S. Dollars
or into a Foreign Currency, as the case may be, the parties hereto agree, to
the fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which, in accordance with normal banking procedures, the
applicable Secured Party could purchase such other currency with U.S. Dollars
or with such Foreign Currency, as the case may be, in New York City, at the
close of business on the Business Day immediately preceding the day on which
final judgment is given, together with any premiums and costs of exchange
payable in connection with such purchase.
(b) The obligation of each of the Borrowers in respect of any sum due from
it to any Agent, any Lender or any other Secured Party hereunder, under any
Note or under any other Loan Document shall, notwithstanding any judgment in a
currency other than U.S. Dollars or a Foreign Currency, as the case may be, be
discharged only to the extent that on the Business Day next succeeding receipt
by such Agent, such Lender or such other Secured Party of any sum adjudged to
be so due in such other currency, such Agent, such Lender or such other Secured
Party may, in accordance with normal banking procedures, purchase U.S. Dollars
or such Foreign Currency, as the case may be, with such other currency. If the
U.S. Dollars or such Foreign Currency so purchased are less than the sum
originally due to such Agent, such Lender or such other Secured Party in U.S.
Dollars or in such Foreign Currency, each of the Borrowers agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Agent, such Lender or such other Secured Party against such loss.
SECTION XI.16. Confidentiality. The Agents, the Issuers, the Arranger and
the Lenders shall hold all non-public information obtained pursuant to or in
connection with this Agreement or obtained by them based on a review of the
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books and records of the Company or any of its Subsidiaries in accordance with
their customary procedures for handling confidential information of this
nature, but may make disclosure to any of their examiners, regulators
(including, without limitation, the National Association of Insurance
Commissioners), Affiliates, outside auditors, counsel and other professional
advisors in connection with this Agreement or as reasonably required by any
potential bona fide transferee, participant or assignee, or in connection with
the exercise of remedies under a Loan Document, or as requested by any
governmental agency or representative thereof or pursuant to legal process;
provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Agent, each Issuer, the Arranger and each Lender shall
promptly notify the Company of any request by any governmental agency
or representative thereof (other than any such request in connection
with an examination of the financial condition of such Agent, Issuer,
Arranger or Lender by such governmental agency) for disclosure of any
such non-public information and, where practicable, prior to
disclosure of such information;
(b) prior to any such disclosure pursuant to this Section
11.16, each Agent, each Issuer, the Arranger and each Lender shall
require any such bona fide transferee, participant and assignee
receiving a disclosure of non-public information to agree in writing
(i) to be bound by this Section 11.16; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section 11.16;
(c) disclosure may, with the consent of the Agents and the
Company, be made by any Lender to any direct or indirect contractual
counterparties of such Lender in swap agreements or such contractual
counterparties' professional advisors; provided that such contractual
counterparty or professional advisor agrees in writing to keep such
information confidential to the same extent required of the Lenders
hereunder; and
(d) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by
the Company or any Subsidiary.
[END OF TEXT OF AMENDED AND RESTATED CREDIT AGREEMENT]
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SCHEDULE I
to Credit Agreement
DISCLOSURE SCHEDULE
[TO COME]
SCHEDULE II
to Credit Agreement
PERCENTAGES
[TO COME]
ADMINISTRATIVE INFORMATION
[TO COME]
SCHEDULE III
to Credit Agreement
ILLUSTRATIONS WITH RESPECT TO SECTION 2.5(D)
--------------------------------------------
I. Addition of Foreign Currency Revolving Loan Commitment as a Result of
Effectiveness of a Foreign Currency Revolving Loan Commitment Addendum
A. Assume:
1. U.S. Revolving Loan Commitment Amount equals $100,000,000 with
Lenders ("Lender A" and "Lender B") having Commitments
thereunder with Percentages of 50% each
2. Lender A agrees to a Foreign Currency Revolving Loan
Commitment Addendum pursuant to which it commits to
provide 100% of a Foreign Currency Revolving Loan
Commitment in French Francs with a U.S.
Dollar Equivalent of $10,000,000
B. Operation of Section 2.5(d)
1. Lender A's Commitment with respect to U.S. Revolving Loans is
decreased to equal:
(Prior U.S. Percentage x Prior Aggregate minus (New Percentage for New Foreign
U.S. Commitment) Commitment x New Aggregate Foreign
Commitment)
= (50% x $100,000,000) minus (100% x $10,000,000)
= $50,000,000 minus $10,000,000
= $40,000,000
2. Lender B's Commitment with respect to U.S. Revolving Loans remains
unchanged at $50,000,000
3. As a result of 1 and 2, the U.S. Revolving Loan Commitment Amount
adjusts to $90,000,000 (Lender A's $40,000,000 plus Lender B's
$50,000,000), and, consequently, Lender A's Percentage with respect
to the U.S. Revolving Loan Commitment is adjusted to equal
-151-
44.444444444% (i.e., $40,000,000 / $90,000,000) and Lender B's
Percentage with respect to the U.S. Revolving Loan Commitment is
adjusted to equal 55.555555555% (i.e., $50,000,000 / $90,000,000).
II. Optional Reduction of a Foreign Currency Revolving Loan Commitment
A. Assume:
1. U.S. Revolving Loan Commitment Amount equals $90,000,000 with Lenders
("Lender A" and "Lender B") having Commitments thereunder with
Percentages of 44.444444444% and 55.555555555%, respectively
2. A French Franc Revolving Loan Commitment in an amount equal to the
U.S. Dollar Equivalent of $10,000,000 is in effect with Lender A
having a Commitment thereunder with a Percentage of 100%
3. The Company elects to reduce the French Franc Revolving Loan
Commitment by an amount equal to the U.S. Dollar Equivalent of
$6,000,000; accordingly, Lender A's Commitment with respect to French
Franc Revolving Loans is decreased from a U.S. Dollar Equivalent of
$10,000,000 to $4,000,000
B. Operation of Section 2.5(d)
1. Lender A's Commitment with respect to U.S. Revolving Loans is
increased to equal:
(Prior U.S. Percentage x Prior Aggregate plus (Percentage for Applicable Foreign
U.S. Commitment) Commitment x Amount of Foreign
Commitment Reduction)
= (44.444444444% x $90,000,000) plus (100% x $6,000,000)
= $40,000,000 plus $6,000,000
= $46,000,000
2. Lender B's Commitment with respect to U.S. Revolving Loans remains
unchanged at $50,000,000
3. As a result of 1 and 2, the U.S. Revolving Loan Commitment Amount
adjusts to $96,000,000 (Lender A's $46,000,000 plus Lender B's
$50,000,000), and, consequently, Lender A's Percentage with respect
to the U.S. Revolving Loan Commitment is adjusted to equal
Schedule III 2
47.916666666% (i.e., $46,000,000 / $96,000,000) and Lender B's
Percentage with respect to the U.S. Revolving Loan Commitment is
adjusted to equal 52.083333333% (i.e., $50,000,000 / $96,000,000).
Schedule III 3
SCHEDULE IV
to Credit Agreement
ADDITIONAL COSTS RATE
---------------------
1. Additional = BD + C (D - E) + A x .01
Cost ------------------------
Rate 100 - (B + C)
Where on the day upon which the calculation fails to be made
A is the rate payable by the Agent to the Financial Services
Authority pursuant to the Fees Regulations (but, for this
purpose, the figure at paragraph [2.02b]/[2.03b] of the Fees
Regulations shall be deemed to be zero) and expressed in
pounds per (pound)1,000,000 of the Fee Base of the Agent;
B is the percentage of eligible liabilities (assuming these to
be in excess of any stated minimum) which the Agent is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England, to comply with cash
ratio requirements;
C is the percentage of eligible liabilities which the Agent is
required from time to time to maintain as interest-bearing
special deposits with the Bank of England;
D is the percentage rate per annum at which Sterling deposits
are offered by the Agent in accordance with its normal
practice, for a period equal to (a) the relevant Interest
Period (or, as the case may be, remainder of such Interest
Period) in respect of the relevant Credit Extension or (b)
three months, whichever is the shorter, to a leading bank in
the London Interbank Market at or about 11:00 a.m. in a sum
approximately equal to the amount of such Credit Extension;
E is the percentage rate per annum payable by the Bank of
England to the Agent on interest-bearing special deposits.
2. For the purposes of this Schedule:
(a) "eligible liabilities" and "special deposits" shall
bear the meanings ascribed to them from time to time
under or pursuant to the Bank of England Act 1988 or
(as appropriate) by the Bank of England;
(b) "Fee Regulations" means the Banking Supervision
(Fees) Regulations 1998 or such other regulations as
may be in force from time to time in respect of the
payment of fees for banking supervision; and
(c) "Fee Base" shall bear the meaning ascribed to it, and
shall be calculated in accordance with, the Fees
Regulations.
3. The percentages used in B and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with D above.
4. In application of the above formula, B, C, D and E will be included in the
formula as figures and not as percentages e.g. if B is 0.5 per cent. and D
is 12 per cent., BD will be calculated as 0.5 x 12 and not as 0.5 per cent.
x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting E from D shall be taken as zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty-second of one per
cent. per annum.
8. Additional amounts calculated in accordance with this Schedule are payable
on the last day of the Interest Period to which they relate.
9. The determination of the Additional Costs Rate by the Agent in
relation to any period shall, in the absence of manifest error, be
conclusive and binding on all of the parties hereto.
10. The Agent may from time to time, after consultation with the Lenders and
the Borrowers, determine and notify to all the parties to this Agreement
any amendments or variations which are required to be made to the formula
set out above in order to comply with any requirements from time to time
imposed by the Bank of England or the Financial Services Authority (or any
other authority which replaces all or any of their functions) in relation
to any Credit Extension (including, without limitation, any requirements
relating to Sterling primary liquidity) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all the
parties to this Agreement.
Schedule IV 2