Credit Agreement
$155,000,000
dated as of July 31, 1998
as amended and restated as of March 29, 2000
among
The Lenders Party Hereto,
The Swingline Bank Referred to Herein,
The Issuers Referred to Herein,
DLJ Capital Funding, Inc.,
as Syndication Agent,
and
Fleet Bank, N.A.,
as Administrative Agent
DLJ Capital Funding, Inc.,
as Sole Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS...................................................................................1
Section 1.01. Definitions...............................................................................1
Section 1.02 Accounting Terms and Determinations.......................................................23
Section 1.03 Classes and Types of Loans and Borrowings................................................23
Section 1.04. Other Definitional Provisions............................................................23
ARTICLE 2 THE CREDITS...................................................................................24
Section 2.01. Commitments to Lend......................................................................24
Section 2.02. Notice of Borrowing......................................................................25
Section 2.03 Notice to Lenders; Funding of Loans.......................................................26
Section 2.04 Maturity of Loans; Contingent Prepayments.................................................27
Section 2.05 Interest Rates............................................................................30
Section 2.06 Method of Electing Interest Rates.........................................................31
Section 2.07 Fees......................................................................................33
Section 2.08 Termination or Reduction of Commitments...................................................34
Section 2.09. Optional Prepayments.....................................................................34
Section 2.10 General Provisions as to Payments.........................................................35
Section 2.11 Funding Losses............................................................................36
Section 2.12 Computation of Interest and Fees..........................................................36
Section 2.13 Notes.....................................................................................36
Section 2.14 Letters of Credit.........................................................................37
Section 2.16 Registry..................................................................................45
Section 2.17 Monthly Statement.........................................................................45
ARTICLE 3. CONDITIONS...................................................................................46
Section 3.01 Effective Date............................................................................46
Section 3.02 Consequences of Effectiveness.............................................................47
Section 3.03 Borrowings and Issuances of Letters of Credit.............................................48
ARTICLE 4 REPRESENTATIONS AND WARRANTIES...............................................................49
Section 4.01 Corporate Existence and Power.............................................................49
Section 4.02 Corporate and Governmental Authorization; No
Contravention......................................................................................49
Section 4.03 Binding Effect; Liens Enforceable.........................................................49
Section 4.04 Financial Information.....................................................................49
Section 4.05 Litigation................................................................................50
Section 4.06 Compliance with ERISA.....................................................................50
Section 4.07 Environmental Matters.....................................................................50
Section 4.08 Taxes.....................................................................................52
Section 4.09 Subsidiaries..............................................................................52
Section 4.10 No Regulatory Restrictions on Borrowing...................................................52
Section 4.11 Real Property Interests...................................................................52
Section 4.12 Full Disclosure...........................................................................52
Section 4.13 Solvency..................................................................................53
Section 4.14 Information Memorandum....................................................................53
ARTICLE 5 COVENANTS...................................................................................53
Section 5.01 Information...............................................................................53
Section 5.02 Payment of Obligations....................................................................56
Section 5.03 Maintenance of Property; Insurance........................................................56
Section 5.04 Conduct of Business and Maintenance of Existence..........................................57
Section 5.05 Compliance with Laws......................................................................58
Section 5.06 Inspection of Property, Books and Records.................................................58
Section 5.07 Mergers and Sales of Assets...............................................................58
Section 5.08 Use of Proceeds...........................................................................58
Section 5.09 Negative Pledge...........................................................................59
Section 5.10 Limitation on Debt........................................................................59
Section 5.11 Leverage Ratio............................................................................60
Section 5.12 Interest Coverage Ratio...................................................................60
Section 5.13 Fixed Charge Coverage Ratio...............................................................60
Section 5.14 Limitation on Capital Expenditures........................................................60
Section 5.15 Restricted Payments; Voluntary Prepayments................................................61
Section 5.16 Investments and Acquisitions..............................................................61
Section 5.17 Transactions with Affiliates..............................................................62
Section 5.18 Limitation on Restrictions Affecting Subsidiaries.........................................62
Section 5.19 Fiscal Year...............................................................................63
Section 5.20 Material Contracts; Occidental Indemnity..................................................63
Section 5.21 Change in Business........................................................................63
Section 5.22 Further Assurances........................................................................63
ARTICLE 6 DEFAULTS....................................................................................65
Section 6.01 Events of Default.........................................................................65
Section 6.02 Notice of Default.........................................................................68
Section 6.03 Cash Collateral...........................................................................68
ARTICLE 7 THE AGENTS..................................................................................68
Section 7.01 Appointment and Authorization.............................................................68
Section 7.02 Agents and Affiliates.....................................................................69
Section 7.03 Action by Agents..........................................................................69
Section 7.04 Consultation with Experts.................................................................69
Section 7.05 Liability of Agents.......................................................................69
Section 7.06 Indemnification...........................................................................70
Section 7.07 Credit Decision...........................................................................70
Section 7.08 Successor Agents..........................................................................70
Section 7.09 Agent's Fee...............................................................................70
ARTICLE 8 CHANGE IN CIRCUMSTANCES.....................................................................70
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair..................................70
Section 8.02 Illegality................................................................................71
Section 8.03 Increased Cost and Reduced Return.........................................................72
Section 8.04 Taxes.....................................................................................73
Section 8.05 Base Rate Loans Substituted for Affected Euro-Dollar Loans................................75
Section 8.06 Substitution of Bank......................................................................76
ARTICLE 9 MISCELLANEOUS...............................................................................76
Section 9.01 Notices...................................................................................76
Section 9.02 No Waivers................................................................................77
Section 9.03 Expenses; Indemnification.................................................................77
Section 9.04 Set-Offs..................................................................................77
Section 9.05 Amendments and Waivers....................................................................78
Section 9.06 Successors; Participations and Assignments................................................79
Section 9.07 Designated Lenders........................................................................81
Section 9.08 No Reliance on Margin Stock...............................................................82
Section 9.09 Governing Law; Submission to Jurisdiction.................................................82
Section 9.10 Counterparts; Integration; Consent........................................................82
Section 9.11 WAIVER OF JURY TRIAL......................................................................83
LOAN AND COMMITMENT SCHEDULE
PRICING SCHEDULE
SCHEDULE 1.01(A) -- MORTGAGES
SCHEDULE 1.01(B) -- SELLERS
SCHEDULE 4.07 -- ENVIRONMENTAL MATTERS
SCHEDULE 4.11 -- INVESTMENTS
EXHIBIT A -- NOTES
EXHIBIT A-1 -- SWINGLINE NOTE
EXHIBIT B -- SECURITY AGREEMENT
EXHIBIT C -- SUBSIDIARY GUARANTY
EXHIBIT D -- OPINION OF COUNSEL TO THE BORROWER
EXHIBIT E -- LOCAL COUNSEL OPINIONS
EXHIBIT F -- OPINION OF COUNSEL TO THE AGENTS
EXHIBIT G -- ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H -- DESIGNATION AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 29, 2000 among SYBRON CHEMICALS INC., the LENDERS party hereto, the
SWINGLINE BANK referred to herein, the ISSUERS referred to herein, DLJ CAPITAL FUNDING, INC., as Syndication Agent, and FLEET BANK,
N.A., as Administrative Agent.
WHEREAS, the
Borrower (as defined below), the Lenders party thereto, DLJ Capital Funding,
Inc., as Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Documentation Agent, and Mellon Bank, N.A., as Administrative Agent, are parties
to a Credit Agreement dated as of July 31, 1998 (the “Existing Credit
Agreement”);
WHEREAS,
pursuant to the Master Assignment and Assumption Agreement dated as of March 29,
2000 (i) the Loans and Commitments of the Pre-Effective Lenders (as defined
therein) under the Existing Credit Agreement were, to the extent set forth
therein, assigned and transferred to the Post-Effective Lenders (as defined
therein) and (ii) Mellon Bank, N.A. resigned as administrative agent under the
Existing Credit Agreement and the Administrative Agent was appointed as
successor administrative agent under the Existing Credit Agreement;
WHEREAS, the
parties hereto wish to amend and restate the Existing Credit Agreement as
provided in this Agreement and, upon satisfaction of the conditions specified in
Section 3.01, the Existing Credit Agreement will be so amended and restated;
NOW, THEREFORE, the parties hereto agree as follows:
Article 1.
Definitions
Section 1.01. Definitions. The following terms, as used herein, have the following meanings:
“Acquisition Agreement” means the Capital Stock and Membership Interest Purchase Agreement dated as of July 31, 1998 among
the Borrower and the Sellers.
“Adjusted
London Interbank Offered Rate” has the meaning set forth in Section
2.05(d).
“Administrative Agent means Fleet Bank, N.A.”
“Administrative
Questionnaire” means, with respect to each Lender, an administrative
questionnaire in the form prepared by the Administrative Agent, completed by
such Lender and returned to the Administrative Agent (with a copy to the
Borrower).
“Affiliate”
means (i) any Person that directly, or indirectly through one or more
intermediaries, controls the Borrower (a “Controlling Person”)
or (ii) any Person (other than the Borrower or a Subsidiary Guarantor) which is
controlled by or is under common control with a Controlling Person. As used
herein, the term “control” means possession, directly or
indirectly, of the power to vote 10% or more of any class of voting securities
of a Person or to direct or cause the direction of the management or policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise.
“Agents” means the Syndication Agent and the Administrative Agent, and "Agent" means either of them, as the context may
require.
“Aggregate
LC Exposure” means, at any time, the sum, without duplication, of (i)
the aggregate amount that is (or may thereafter become) available for drawing
under all Letters of Credit outstanding at such time and (ii) the aggregate
unpaid amount of all Reimbursement Obligations at such time.
“Applicable
Lending Office” means, with respect to any Lender, (i) in the case of
its Base Rate Loans and its participations in Letters of Credit, its Domestic
Lending Office and (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar
Lending Office.
“Asset
Sale” means any sale, lease or other disposition (including any such
transaction effected by way of merger or consolidation) by the Borrower or any
of its Subsidiaries of any asset, including without limitation any
sale-leaseback transaction, whether or not involving a capital lease, but
excluding (i) dispositions of inventory or obsolete, worn out or unnecessary
equipment, in each case in the ordinary course of business, (ii) dispositions of
Temporary Cash Investments and cash payments otherwise permitted under this
Agreement and (iii) dispositions to the Borrower or a Subsidiary of the
Borrower.
“Assignee” has the meaning set forth in Section 9.06(c).
“Base Rate” means, for any day, a rate per annum equal
to the higher of (i) the Prime Rate for such day and (ii) the sum of
2 of 1% plus the Federal Funds Rate for such day.
“Base
Rate Loan” means a Loan which bears interest at the Base Rate pursuant
to the applicable Notice of Borrowing or Notice of Interest Rate Election or the
provisions of Section 2.06(a) or Article 8.
“Base
Rate Margin” means (i) in the case of Term A Loans and Revolving Loans,
a rate per annum determined in accordance with the Pricing Schedule, and (ii) in
the case of Term B Loans, 2.25%.
“Borrower
” means Sybron Chemicals Inc., a Delaware corporation, and its successors.
“Borrower
Mortgage” means each mortgage or deed of trust entered into between the
Borrower, as mortgagor or trustor, and the Administrative Agent, as mortgagee or
beneficiary, and referred to in Part A of Schedule 1.01(A), in each case as amended from
time to time.
“Borrowing
” has the meaning set forth in Section 1.03.
“Business
Acquisition” means any acquisition, whether in a single transaction or
series of related transactions, by the Borrower or any one or more Subsidiaries,
or any combination thereof, of (i) all or a substantial part of the assets, or a
going concern business or division, of any Person, whether through purchase of
assets or securities, by merger or otherwise, (ii) control of securities of an
existing corporation or other Person having ordinary voting power (apart from
rights accruing under special circumstances) to elect a majority of the board of
directors of such corporation or other Person or (iii) control of a greater than
50% ownership interest in any existing partnership, joint venture or other
Person.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and any rules
or regulations promulgated thereunder.
“Change
of Control” shall occur if (i) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) other than Citicorp Venture Capital, Ltd. or any of its affiliates or
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act)
of 25% or more of the outstanding shares of common stock of the Borrower or (ii)
during any period of twelve consecutive calendar months, individuals who were
directors of the Borrower on the first day of such period (or who were appointed
or nominated for election as directors of the Borrower by at least a majority of
the individuals who were directors on the first day of such period or who were
so elected or appointed) shall cease to constitute a majority of the board of
directors of the Borrower.
“Class” has the meaning set forth in Section 1.03.
“Collateral”
means the collateral purported to be subject to the Liens of the Collateral
Documents.
“Collateral
Documents” means the Security Agreement, the Mortgages and any
additional security agreements, pledge agreements or mortgages required to be
delivered pursuant to the Loan Documents and any instruments of assignment,
lockbox letters or other instruments or agreements executed pursuant to the
foregoing.
“Commitment” means any Term Commitment or Revolving Commitment, and "Commitments" means any or all of the foregoing, as the
context may require.
“Commitment
Fee Rate” means a rate per annum determined in accordance with the
Pricing Schedule.
“Consolidated
Capital Expenditures” means, for any Fiscal Year, the additions to
property, plant and equipment and other capital expenditures of the Borrower and
its Consolidated Subsidiaries for such Fiscal Year, as the same are set forth in
a consolidated statement of cash flows of the Borrower and its Consolidated
Subsidiaries for such Fiscal Year.
“Consolidated Current Assets” means at any date the consolidated current assets of the Borrower and its Consolidated
Subsidiaries determined as of such date.
“Consolidated
Current Liabilities” means at any date (i) the consolidated current
liabilities of the Borrower and its Consolidated Subsidiaries plus (ii) the
current liabilities of any Person (other than the Borrower or any of its
Consolidated Subsidiaries) which are Guaranteed by the Borrower or a
Consolidated Subsidiary, all determined as of such date.
“Consolidated Debt means, at any date, the Debt of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
“Consolidated
EBITDA” means, for any period, Consolidated Net Income for such period
plus, to the extent deducted in determining Consolidated Net Income for such
period, the aggregate amount of (i) Consolidated Interest Expense, (ii) income
tax expense and (iii) depreciation, amortization and other non-cash charges.
“Consolidated Interest Expense” means, for any period, the interest expense of the Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis for such period.
“"Consolidated Net Income"” means, for any period, the net income of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis for such period, adjusted to exclude the effect of any extraordinary or other non-recurring gain
(but not loss).
“Consolidated
Net Working Investment” means at any date Consolidated Current Assets
(exclusive of cash and cash equivalents) minus Consolidated Current Liabilities
(exclusive of Debt).
“Consolidated
Subsidiary” means, at any date, any Subsidiary or other entity the
accounts of which would be consolidated with those of the Borrower in its
consolidated financial statements if such statements were prepared as of such
date.
“Credit
Exposure” means, with respect to any Lender at any time, the sum of (i)
such Lender’s Term Credit Exposure at such time plus (ii) such
Lender’s Tranche I Revolving Credit Exposure at such time plus (iii) such
Lender’s Tranche II Revolving Credit Exposure at such time.
“Debt”
of any Person means, at any date, without duplication, (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services, except
(A) trade accounts payable arising in the ordinary course of business and (B)
obligations in respect of deferred purchase price payments not exceeding
$10,000,000 under the Acquisition Agreement, (iv) all obligations of such Person
as lessee which are capitalized in accordance with GAAP, (v) all obligations
(contingent or otherwise) of such Person to reimburse any bank or other Person
in respect of amounts paid under a letter of credit or similar instrument, (vi)
all Debt secured by a Lien on any asset of such Person, whether or not such Debt
is otherwise an obligation of such Person and (vii) all Guarantees by such
Person of Debt of another Person (each such Guarantee to constitute Debt in an
amount equal to the amount of such other Person’s Debt Guaranteed thereby).
“Debt Incurrence” means the incurrence of any Debt by the Borrower or any of its Subsidiaries, other than Debt permitted by
Section 5.10(a)(i) through (v) inclusive.
“Default”
means any condition or event which constitutes an Event of Default or which with
the giving of notice or lapse of time or both would, unless cured or waived,
become an Event of Default.
“Default
Rate Period” means, if an Event of Default shall have occurred and be
continuing, the period from the date the Required Lenders notify the Borrower of
the commencement of a Default Rate Period to the earlier of the date on which
such notice is rescinded by the Required Lenders and the date no Event of
Default shall have occurred and be continuing.
“Derivatives
Obligations” of any Person means all obligations of such Person in
respect of any rate swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions.
“Designated
Lender” means, with respect to any Designating Lender, an Eligible
Designee designated by it pursuant to Section 9.07(a) as a Designated Lender for
purposes of this Agreement.
“Designating Lender” means, with respect to each Designated Lender, the Lender that designated such Designated Lender
pursuant to Section 9.07(a).
“Domestic Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to close.
“Domestic
Lending Office” means, as to each Lender, its office located at its
address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
“Effective Date” means the date on which all of the conditions set forth in Section 3.01 shall have been satisfied (or
waived in accordance with Section 9.05).
“Eligible
Designee” means a special purpose corporation that (i) is organized
under the laws of the United States or any state thereof, (ii) is engaged in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1
or the equivalent thereof by ▇▇▇▇▇’▇.
“Environmental
Laws” means any federal, state, local or foreign law, treaty, judicial
decision, regulation, rule, judgment, order, decree, injunction, permit,
agreement or governmental restriction or requirement, whether now or hereafter
in effect, relating to human health, the environment or to pollutants,
contaminants, wastes or chemicals or any toxic, radioactive, ignitable,
corrosive, reactive or otherwise hazardous substances, wastes or materials.
“Environmental
Liabilities” means any and all liabilities of or relating to the
Borrower and any Subsidiary (including any entity which is, in whole or in part,
a predecessor of the Borrower or any Subsidiary), whether vested or unvested,
contingent or fixed, actual or potential, known or unknown, which arise under or
relate to matters covered by applicable Environmental Laws (including without
limitation any matter disclosed or required to be disclosed in Schedule 4.07
hereto).
“Equity Issuance” means any issuance of equity securities by the Borrower or any of its Subsidiaries, other than any such
issuance to the Borrower or any of its Subsidiaries.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.
“ERISA
Group” means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
“Euro”
means the single currency of the participating member states in the third stage
of European economic and monetary union pursuant to the Treaty establishing the
European Community (as amended from time to time).
“Euro-Currency
Business Day” means a Euro-Dollar Business Day, unless such term is
used in connection with a Tranche II Revolving Borrowing or Tranche II Revolving
Loan for which funds are to be paid or made available in Euros on such day, in
which case such day shall not be a Euro-Currency Business Day unless commercial
banks are open for international business (including dealings in deposits in
Euros) in both London and the place where such funds are to be paid or made
available.
“Euro-Currency
Lending Office” means, as to each Lender, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Currency Lending
Office) or such other office, branch or affiliate of such Lender as it may
hereafter designate as its Euro-Currency Lending Office by notice to the
Borrower and the Administrative Agent; provided that any Lender may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Euro-Currency Lending Offices for its Loans in U.S. Dollars and its Loans in
Euros, in which case all references herein to the Euro-Currency Lending Office
of such Lender shall be deemed to refer to any or all of such offices, as the
context may require.
“Euro-Currency
Loan” means a Loan that is either a Euro-Dollar Loan or a Euro
Revolving Loan.
“Euro-Currency
Margin” means (i) in the case of Term A Loans and Revolving Loans, a
rate per annum determined in accordance with the Pricing Schedule, and (ii) in
the case of Term B Loans, 3.25%.
“Euro-Currency Rate” means a rate of interest determined pursuant to Section 2.05(b) on the basis of a London Interbank
Offered Rate.
“Euro-Currency
Reserve Percentage” means, for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect of
“Eurocurrency liabilities” (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Currency Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender to
United States residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Currency Reserve Percentage.
“Euro-Dollar Business Day” means any Domestic Business Day on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
“Euro-Dollar
Loan” means a U.S. Dollar-Denominated Loan which bears interest at a
Euro-Currency Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election.
“Euro Revolving Loan” means a Tranche II Revolving Loan denominated in Euros.
“Event of Default” has the meaning set forth in Section 6.01.
“Evergreen
Letter of Credit” means a Letter of Credit that is automatically
extended unless the relevant Issuer gives notice to the beneficiary thereof
stating that such Letter of Credit will not be extended.
“Excess Cash Flow” means, for any period:
(a) the sum of (i) Consolidated EBITDA for such period, and (ii) any decrease in Consolidated Net Working Investment
between the beginning and the end of such period;
less
(b) the sum of
(i) Consolidated Capital Expenditures for such period, (ii) any increase in
Consolidated Net Working Investment between the beginning and the end of such
period, (iii) mandatory and voluntary repayments during such period of the
non-revolving Debt of the Borrower and its Consolidated Subsidiaries which were
not made with the proceeds of other Debt (adjusted to eliminate the effect of
prepayments on account of Excess Cash Flow for a prior period), (iv)
Consolidated Interest Expense to the extent paid or payable in cash for such
period, (iv) income taxes paid or payable in cash for such period and
(v) to the extent not deducted in calculating Consolidated EBITDA for such
period, cash payments made to any third parties during such period in connection
with any Business Acquisition permitted under Section 5.16(b).
“Existing Credit Agreement” is defined in the recitals hereto.
“Existing Lenders” means the "Lenders" under, and as defined in, the Existing Credit Agreement immediately prior to the
Effective Date.
“Existing Letters of Credit” means "Letters of Credit" under, and as defined in, the Existing Credit Agreement that are
outstanding immediately prior to the Effective Date.
“Existing Loans” means "Loans" under, and as defined in, the Existing Credit Agreement that are outstanding immediately
prior to the Effective Date.
“Federal
Funds Rate” means, for any day, the rate per annum (rounded upward, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to Fleet Bank on such day on such transactions
as determined by the Administrative Agent.
“Fiscal Quarter” means a fiscal quarter of the Borrower.
“Fiscal Year” means a fiscal year of the Borrower.
“Fixed
Charge Coverage Ratio” means, at any date, the ratio of (i)
Consolidated EBITDA for the period of four consecutive Fiscal Quarters ended on
or most recently prior to such date to (ii) the sum of (A) Consolidated Interest
Expense for such period, plus (B) income tax expense for such period plus (C)
Consolidated Capital Expenditures for such period plus (D) the aggregate
principal amount of long term Debt of the Borrower and its Consolidated
Subsidiaries scheduled to be amortized during such period.
“Fleet Bank” means Fleet Bank, N.A.
“Foreign
Subsidiary” means any Subsidiary organized under the laws of a
jurisdiction, and conducting substantially all of its operations, outside of the
United States, other than any such Subsidiary that is, or shall have elected to
be treated as, a partnership or a branch of the Borrower or any U.S. Subsidiary,
or a Subsidiary of the Borrower or any U.S. Subsidiary that is a
“disregarded person”, for United States income tax purposes.
“GAAP” means generally accepted accounting principles as in effect on the date hereof, applied on a basis consistent with
the financial statements referred to in Section 4.04(a).
“Group of Funds” means a group of Related Funds.
“Group
of Loans” means at any time a group of Loans of any Class consisting of
(i) all Loans of such Class which are Base Rate Loans at such time or (ii) all
Loans of such Class which are Euro-Currency Loans denominated in the same
currency and having the same Interest Period at such time, provided that, if a
Loan of any particular Lender is converted to or made as a Base Rate Loan
pursuant to Article 8, such Loan shall be included in the same Group or Groups
of Loans from time to time as it would have been in if it had not been so
converted or made.
“Guarantee”
by any Person means any obligation, contingent or otherwise, of such Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt or
other obligation (whether arising by virtue of partnership arrangements, by
virtue of an agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or
otherwise), (ii) to reimburse a bank for amounts drawn under a letter of credit
for the purpose of paying such Debt or other obligation or (iii) entered into
for the purpose of assuring in any other manner the holder of such Debt or other
obligation of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part), provided that the term
“Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. The term
“Guarantee” used as a verb has a corresponding meaning.
“Hazardous
Substances” means any pollutant, contaminant, waste or chemical or any
toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous
substance, waste or material, or any substance, waste or material having any
constituent elements displaying any of the foregoing characteristics, including,
without limitation, petroleum, its derivatives, by-products and other
hydrocarbons, and any substance, waste or material regulated under applicable
Environmental Laws.
“Hicksville Facility” means Ruco Corp.'s facility in Hicksville, New York.
“Indemnitee” has the meaning set forth in Section 9.03(b).
“Interest
Coverage Ratio” means, at any date, the ratio of (i) Consolidated
EBITDA for the period of four consecutive Fiscal Quarters ended on or most
recently prior to such date to (ii) Consolidated Interest Expense for such
period.
“Interest
Period” means, with respect to each Euro-Currency Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election or Notice of Interest Period Election and ending one, two, three or six
months thereafter, as the Borrower may elect in such notice; provided that:
(a)any Interest
Period which would otherwise end on a day which is not a Euro-Currency Business
Day for the relevant currency shall be extended to the next succeeding
Euro-Currency Business Day for such currency unless such Euro-Currency Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Currency Business Day for such currency;
(b)any Interest
Period which begins on the last Euro-Currency Business Day for the relevant
currency in 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, subject to clauses (c) and (d) below, end on the last Euro-Currency
Business Day for such currency in a calendar month;
(c)no Interest Period for any Revolving Loan shall extend beyond the Revolving Credit Termination Date;
(d)no Interest
Period applicable to any Term Loan of any Class shall extend beyond any date
upon which is due any scheduled principal payment in respect of the Term Loans
of such Class unless the aggregate principal amount of Term Loans of such Class
represented by Base Rate Loans and Euro-Dollar Loans having Interest Periods
which end on or prior to such date equals or exceeds the amount of such
principal payment; and
(e)at no time
may there be more than eight different Interest Periods outstanding with respect
to Euro-Currency Borrowings.
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended, or
any successor statute.
“Investment”
means any investment in any Person, whether by means of share purchase, capital
contribution, loan, Guarantee, time deposit or otherwise (but not including any
demand deposit).
“Issuers”
means Fleet Bank (and if Fleet Bank shall be unable, or shall refuse, to issue
Letters of Credit hereunder, any other Tranche I Revolving Lender which shall
have agreed to issue Letters of Credit hereunder and confirmed such agreement in
a notice to the Administrative Agent), each in its capacity as an Issuer under
the letter of credit facility described in Section 2.14.
“LC
Exposure” means, with respect to any Tranche I Revolving Lender at any
time, an amount equal to its Tranche I Revolving Commitment Percentage of the
Aggregate LC Exposure at such time.
“LC Indemnitees” has the meaning set forth in Section 2.14(k).
“LC
Office” means, with respect to any Issuer, the office at which it books
any Letter of Credit issued by it.
“LC Payment Date” has the meaning set forth in Section 2.14(g).
“LC Reimbursement Due Date” has the meaning set forth in Section 2.14(h).
“Lead Arranger” means DLJ Capital Funding, Inc. and its successors.
“Lender” means (i) each lender listed on the Loan and Commitment Schedule, (ii) each Assignee which becomes a Lender
pursuant to Section 9.06(c) and (iii) their respective successors. The term "Lender" does not include the Swingline Bank in its
capacity as such.
“Lender Parties” means the Lenders, the Issuers, the Swingline Bank and the Agents.
“Letter of Credit” means a letter of credit issued hereunder by an Issuer.
“Leverage
Ratio” means, at any date, the ratio of (i) Consolidated Debt at such
date, less (which deduction will not, in any event, exceed $10,000,000) cash and
Temporary Cash Investments at such date to (ii) Consolidated EBITDA for the
period of four consecutive Fiscal Quarters most recently ended on or prior to
such date.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind, or any other type of preferential
arrangement that has substantially the same practical effect as a security
interest, in respect of such asset. For purposes hereof, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
“Loan”
means a Base Rate Loan or a Euro-Currency Loan and “Loans”
means any combination of the foregoing, as the context may require; provided
that, if any such Loan or Loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election or Notice of Interest Period
Election, the term “Loan” shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be. The term
“Loan” does not include a Swingline Loan.
“Loan
and Commitment Schedule” means the Schedule attached hereto and
identified as such.
“Loan
Documents” means this Agreement, the Notes, the Swingline Note, the
Subsidiary Guarantee and the Collateral Documents.
“London Interbank Offered Rate” has the meaning set forth in Section 2.05(e).
“Major
Casualty Proceeds” means (i) the aggregate insurance proceeds received
in connection with one or more related events by the Borrower and its
Subsidiaries under any Property Insurance Policy or (ii) any award or other
compensation with respect to any condemnation of property (or any transfer or
disposition of property in lieu of condemnation) received by the Borrower and
its Subsidiaries, if the amount of such aggregate insurance proceeds or award or
other compensation exceeds $500,000; provided that Major Casualty Proceeds shall
exclude up to $2,000,000 recovered from insurers in respect of environmental
clean up expenses incurred by the Borrower prior to the Effective Date.
“Master
Assignment and Assumption Agreement” means the Master Assignment and
Assumption Agreement dated as of March 29, 2000 among the Borrower, the Lenders
party thereto, Mellon Bank, N.A., the Administrative Agent and the Syndication
Agent.
“Material
Adverse Effect” means (i) any material adverse effect upon the
condition (financial or otherwise), results of operations, properties, assets,
business or prospects of the Borrower and its Subsidiaries, taken as a whole;
(ii) a material adverse effect on the ability of the Borrower or any other
Person to consummate the transactions contemplated hereby to occur on the
Effective Date; (iii) a material adverse effect on the ability of any Obligor to
perform its obligations under this Agreement, the Notes and the other Loan
Documents or (iv) a material adverse effect on the rights and remedies of the
Agents, the Issuers, the Swingline Bank and the Lenders under this Agreement,
the Notes, the Swingline Note and the other Loan Documents.
“Material
Debt” means Debt (other than the Loans, Swingline Loans and
Reimbursement Obligations) of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions, in an
aggregate outstanding principal amount exceeding $3,500,000.
“Material
Financial Obligations” means a principal or face amount of Debt (other
than the Loans, Swingline Loans and Reimbursement Obligations) and/or payment or
collateralization obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, exceeding in the aggregate $3,500,000.
“Material
Plan” means, at any time, a Plan or Plans having aggregate Unfunded
Liabilities in excess of $1,000,000.
“Mexican
Subsidiary Debt” means mortgage Debt of Sybron Quimica S.A. de C.V., a
Mexican company and wholly-owned Subsidiary of the Borrower, in an aggregate
principal amount not exceeding 12,000,000 Mexican pesos, the proceeds of which
have been or will be used to repay outstanding intercompany Debt owed to the
Borrower and any refinancing thereof which does not increase the outstanding
principal amount thereof and is not secured by additional collateral owned by
any Person other than Sybron Quimica S.A. de C.V.
“Moody's” means ▇▇▇▇▇'▇ Investors Service, Inc.
“Mortgages” means the Borrower Mortgages and the Subsidiary Mortgages, and "Mortgage" means any of them, as the context may
require.
“Multiemployer
Plan” means, at any time, an employee pension benefit plan within the
meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is
then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions, including for these purposes any
Person which ceased to be a member of the ERISA Group during such five year
period.
“Net
Cash Proceeds” means, with respect to any Reduction Event, an amount
equal to the cash proceeds received by the Borrower or any of its Subsidiaries
from or in respect of such Reduction Event (including any cash proceeds received
as interest or similar income or other proceeds of any noncash proceeds of any
Asset Sale), less (a) any fees, costs and expenses reasonably incurred by such
Person in respect of such Reduction Event, (b) if such Reduction Event is an
Asset Sale, (i) the amount of any Debt secured by a Lien on any asset disposed
of in such Asset Sale and required to be, and actually, discharged from the
proceeds thereof and (ii) any taxes actually paid or to be payable by such
Person (as estimated by a senior financial or accounting officer of the
Borrower, giving effect to the overall tax position of the Borrower) in respect
of such Asset Sale and (c) if such Reduction Event is the receipt of Major
Casualty Proceeds and if the Borrower shall have notified the Administrative
Agent within 30 days after the receipt of such Major Casualty Proceeds of its
intent to use some or all of such Major Casualty Proceeds to repair or replace
the affected assets within 180 days after the receipt thereof, the amount so
specified by the Borrower; provided that the portion of the Net Cash Proceeds
not so used in such 180 day period shall be deemed to have been received and
shall be applied to prepayments required under Section 2.04(d) on such 180th
day; provided, further, that Major Casualty Proceeds in excess of $5,000,000
shall be held and dispensed by the Administrative Agent in accordance with
Section 5 of the Security Agreement.
“Notes”
means promissory notes of the Borrower, substantially in the form of Exhibit A
hereto, evidencing the Borrower’s obligation to repay the Loans, and
“Note” means any one of such promissory notes issued hereunder.
“Notice of Borrowing” has the meaning set forth in Section 2.02.
“Notice of Interest Period Election” has the meaning set forth in Section 2.06(e).
“Notice of Interest Rate Election” has the meaning set forth in Section 2.06(a).
“Notice of Swingline Borrowing” has the meaning set forth in Section 2.15(b).
“Obligor” means the Borrower and each Subsidiary Guarantor.
“Occidental” means Occidental Chemical Corporation (formerly known as Hooker Chemicals and Plastics Corp.) and its successors.
“Occidental Indemnity” means the obligations of Occidental under Sections 7.01, 7.02 and 7.03 of the Agreement for the
Purchase by Ruco Corp. of the Specialty Polymers Business of Hooker Chemicals and Plastics Corp. dated February 12, 1982.
“Outstanding
Tranche I Revolving Amount” means, with respect to any Tranche I
Revolving Lender at any time, the sum of (i) the aggregate outstanding principal
amount of its Tranche I Revolving Loans, (ii) its LC Exposure and (iii) its
Swingline Exposure, all determined at such time after giving effect to any prior
assignments by or to such Tranche I Revolving Lender pursuant to Section
9.06(c).
“Outstanding
Tranche II Revolving Amount” means, with respect to any Tranche II
Revolving Lender at any time, the aggregate outstanding principal amount of its
Tranche II Revolving Loans (calculated, in the case of Euro Revolving Loans, at
the U.S. Dollar Equivalent thereof), all determined at such time after giving
effect to any prior assignments by or to such Tranche II Revolving Lender
pursuant to Section 9.06(c).
“Parent” means, with respect to any Lender, any Person controlling such Lender.
“Participant"” has the meaning set forth in Section 9.06(b).
“PBGC"”
means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.
“Person”
means an individual, a corporation, a limited liability company, a partnership,
an association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
“Plan”
means, at any time, an employee pension benefit plan (other than a Multiemployer
Plan) which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Internal Revenue Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
“Pricing Schedule” means the Pricing Schedule attached hereto.
“Prime Rate” means the variable per annum rate of interest so designated from time to time by the Administrative Agent as
its prime rate. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate being charged to any
customer.
“"Property
Insurance Policy” means any insurance policy maintained by the Borrower
or any of its Subsidiaries covering losses with respect to tangible real or
personal property or improvements or losses from business interruption.
“Quarterly
Payment Dates” means each March 31, June 30, September 30 and December
31.
“Reduction
Event” means (i) any Asset Sale in any Fiscal Year if, and solely to
the extent that, the aggregate Net Cash Proceeds from such Asset Sale, when
combined with the Net Cash Proceeds from all other Asset Sales previously made
during such Fiscal Year, exceed $1,000,000, (ii) any Debt Incurrence, (iii) any
Equity Issuance or (iv) receipt of Major Casualty Proceeds. The description of
any transaction as falling within the above definition does not affect any
limitation on such transaction imposed by Article 5 of this Agreement.
“Reduction Percentage” means (i) with respect to any Debt Incurrence, any Asset Sale or receipt of Major Casualty Proceeds,
100% and (ii) with respect to any Equity Issuance, 50%.
“Reference Lender” means Fleet Bank.
“Register” has the meaning set forth in Section 2.16.
“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
“Reimbursement
Obligation” means the obligation of the Borrower to reimburse an Issuer
for amounts paid by such Issuer in respect of drawings under a Letter of Credit,
including any portion of any such obligation to which a Lender has become
subrogated pursuant to Section 2.14(i).
“Related
Fund” means, with respect to any Lender which is a fund that invests in
loans, any other fund that invests in loans that is managed by the same
investment advisor as such Lender or by an affiliate of such Lender.
“Release”
means any discharge, emission or release, including a Release as defined in
CERCLA at 42 U.S.C. Section 9601(22).
“Required
Lenders” means, at any time, Lenders having at least a majority in
aggregate amount of the Credit Exposures of all Lenders at such time.
“Restricted
Payment” means (i) any dividend or other distribution on any shares of
the Borrower’s capital stock (except dividends payable solely in shares of
its capital stock other than mandatorily redeemable capital stock) or (ii) any
payment on account of the purchase, redemption, retirement or acquisition of (a)
any shares of the Borrower’s capital stock or (b) any option, warrant or
other right to acquire shares of the Borrower’s capital stock (but not
including payments of principal, premium (if any) or interest made pursuant to
the terms of convertible debt securities prior to conversion).
“Revolving
Commitment” means a Tranche I Revolving Commitment or a Tranche II
Revolving Commitment.
“Revolving Credit Exposure” means, with respect to any Lender at any time, its Tranche I Revolving Credit Exposure or its
Tranche II Revolving Credit Exposure.
“Revolving Credit Period” means the period from and including the Effective Date to but not including the Revolving Credit
Termination Date.
“Revolving
Credit Termination Date” means the fifth anniversary of the Effective
Date (or, if such date is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day).
“Revolving
Lender” means a Tranche I Revolving Lender or a Tranche II Revolving
Lender.
“Revolving Loan” means a Tranche I Revolving Loan or a Tranche II Revolving Loan.
“Ruco” means Ruco Corp. and Ruco LLC, collectively.
“Ruco Corp” means Ruco Polymer Corporation, a New York corporation.
“Ruco
LLC” means Ruco Polymer Company of Georgia, LLC, a Delaware limited
liability company.
“S&P”
means Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
“SEC” means the Securities and Exchange Commission.
“Security
Agreement” means the Security Agreement dated as of July 31, 1998 among
the Borrower, the Subsidiary Guarantors party thereto and the Administrative
Agent, substantially in the form of Exhibit B hereto, as amended from time to
time.
“Sellers” means each Person listed on Schedule 1.01(B).
“Subsidiary”
means, as to any Person, any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by such Person. Unless otherwise specified,
“Subsidiary” means a Subsidiary of the Borrower.
“Subsidiary
Guarantee” means the Subsidiary Guarantee dated as of July 31, 1998
from each Subsidiary Guarantor in favor of the Administrative Agent,
substantially in the form of Exhibit C, as amended from time to time.
“Subsidiary Guarantors” means each Subsidiary of the Borrower (other than a Foreign Subsidiary) on the Effective Date and
any other Person that becomes a party to the Subsidiary Guarantee pursuant to Section 5.22, and "Subsidiary Guarantor" means any one
of them.
“Subsidiary Mortgage” means each mortgage or deed of trust between a Subsidiary Guarantor, as mortgagor or trustor, and the
Administrative Agent, as mortgagee or beneficiary, and referred to in Part B of Schedule 1.01(A), in each case as amended from time
to time.
“Swingline Availability Period” means the period from and including the Effective Date to but excluding the Swingline
Maturity Date.
“Swingline Bank” means Fleet Bank, in its capacity as the Swingline Bank under the Swingline facility described in Section
2.15, and its successors in such capacity.
“Swingline
Borrowing” means a borrowing of a Swingline Loan pursuant to Section
2.15(a).
“Swingline
Commitment” means the obligation of the Swingline Bank to make
Swingline Loans to the Borrower in an aggregate principal amount at any one time
outstanding not to exceed $5,000,000, as such amount may be reduced pursuant to
Section 2.15(j).
“Swingline
Exposure” means, with respect to any Tranche I Revolving Lender at any
time, an amount equal to its Tranche I Revolving Commitment Percentage of the
aggregate outstanding principal amount of Swingline Loans at such time.
“Swingline
Loan” means a loan made by the Swingline Bank pursuant to Section
2.15(a).
“Swingline Maturity Date” means the Revolving Credit Termination Date.
“Swingline Note” has the meaning set forth in Section 2.15(d).
“Syndication Agent” means DLJ Capital Funding, Inc. in its capacity as syndication agent in respect of the Loan Documents.
“Temporary
Cash Investment” means any Investment in (i) direct obligations of the
United States or any agency thereof or obligations guaranteed by the United
States or any agency thereof, (ii) commercial paper rated at least A-1 by
S&P and P-1 by Moody’s, (iii) time deposits with, including
certificates of deposit issued by, any office located in the United States of
any bank or trust company which is organized or licensed under the laws of the
United States or any State thereof and has capital, surplus and undivided
profits aggregating at least $1,000,000,000, (iv) repurchase agreements with
respect to securities described in clause (i) above entered into with an office
of a bank or trust company meeting the criteria specified in clause (iii) above,
or (v) in the case of Investments made by a Foreign Subsidiary, substantially
similar investments denominated in the currency of the jurisdiction in which
such Foreign Subsidiary is organized or conducts its business, provided in each
case that such Investment matures within one year after it is acquired by the
Borrower or a Subsidiary.
“Term A
Commitment” means, (i) with respect to each Term A Lender listed on the
signature pages hereof, the amount set forth opposite the name of such Lender
under the heading “Term A Commitment” in the Loan and
Commitment Schedule, and (ii) with respect to each Assignee which becomes a Term
A Lender pursuant to Section 9.06(c), the amount of the Term A Commitment
thereby assumed by it, in each case as such amount may be reduced from time to
time pursuant to Section 2.08 or increased or reduced by reason of an assignment
to or by such Lender in accordance with Section 9.06(c).
“Term A
Lender” means each Lender identified in the Loan and Commitment
Schedule as having a Term A Loan or a Term A Commitment and each Assignee which
acquires a Term A Commitment and/or Term A Loans pursuant to Section 9.06(c),
and their respective successors.
“Term A
Loan” means a loan made by a Term A Lender pursuant to Section
2.01(a)(i) or an Existing Loan outstanding under the Existing Credit Agreement
immediately prior to the Effective Date and deemed to be a Term A Loan pursuant
to Section 3.02(c).
“Term A
Loan Final Maturity Date” means the fifth anniversary of the Effective
Date (or, if such date is not a Euro-Dollar Business Day, the next preceding
Euro-Dollar Business Day).
“Term B
Commitment” means, (i) with respect to each Term B Lender listed on the
signature pages hereof, the amount set forth opposite the name of such Lender
under the heading “Term B Commitment” in the Loan and
Commitment Schedule, and (ii) with respect to each Assignee which becomes a Term
B Lender pursuant to Section 9.06(c), the amount of the Term B Commitment
thereby assumed by it, in each case as such amount may be reduced from time to
time pursuant to Section 2.08 or increased or reduced by reason of an assignment
to or by such Lender in accordance with Section 9.06(c).
“Term B
Lender” means each Lender identified in the Loan and Commitment
Schedule as having a Term B Loan or a Term B Commitment and each Assignee which
acquires a Term B Commitment and/or Term B Loans pursuant to Section 9.06(c),
and their respective successors.
“Term B
Loan” means a loan made by a Term B Lender pursuant to Section
2.01(a)(ii) or an Existing Loan outstanding under the Existing Credit Agreement
immediately prior to the Effective Date and deemed to be a Term B Loan pursuant
to Section 3.02(c).
“Term B
Loan Final Maturity Date” means the seventh anniversary of the
Effective Date (or, if such date is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day).
“Term Commitment” means a Term A Commitment or a Term B Commitment.
“Term
Credit Exposure” means, with respect to any Term Lender at any time,
the sum, at such time, of (A) such Lender’s Term Commitments and (B) the
outstanding principal amount of such Lender’s Term Loans.
“Term Lender” means a Term A Lender or a Term B Lender.
“Term Loan” means a Term A Loan or a Term B Loan.
“Total
Combined Outstanding Revolving Amount” means, at any time, the sum of
(i) the Total Outstanding Tranche I Revolving Amount and (ii) the Total
Outstanding Tranche II Revolving Amount.
“Total
Combined Revolving Loan Commitment Amount” means, at any time, the sum
of (i) the Total Tranche I Revolving Loan Commitment Amount and (ii) the Total
Tranche II Revolving Loan Commitment Amount.
“Total
Outstanding Revolving Amount” means the Total Outstanding Tranche I
Revolving Amount or the Total Outstanding Tranche II Revolving Amount.
“Total
Outstanding Tranche I Revolving Amount” means, at any time, the sum, at
such time, of (i) the aggregate outstanding principal amount of the Tranche I
Revolving Loans, (ii) the Aggregate LC Exposure and (iii) except for purposes of
Section 2.07(a)(i), the aggregate outstanding principal amount of the Swingline
Loans.
“Total Outstanding Tranche II Revolving Amount” means, at any time, the aggregate outstanding principal amount of the
Tranche II Revolving Loans at such time (calculated, in the case of Euro Revolving Loans, at the U.S. Dollar Equivalent thereof at
such time).
“Total
Tranche I Revolving Loan Commitment Amount” means the aggregate of all
Tranche I Revolving Commitments.
“Total
Tranche II Revolving Loan Commitment Amount” means the aggregate of all
Tranche II Revolving Commitments.
“Tranche I Revolving Commitment” means,
(i with respect
to each Tranche I Revolving Lender listed on the signature pages hereof, the
amount set forth opposite the name of such Lender under the heading
“Tranche I Revolving Commitment” in the Loan and Commitment
Schedule; and
(ii with respect to each Assignee which becomes a Tranche I Revolving Lender pursuant to Section 9.06(c), the amount of
the Tranche I Revolving Commitment thereby assumed by it,
in each case as
such amount may be reduced from time to time pursuant to Section 2.08 or
increased or reduced by reason of an assignment to or by such Lender in
accordance with Section 9.06(c). The term “Tranche I Revolving
Commitment” does not include the Swingline Commitment.
“Tranche
I Revolving Commitment Percentage” means, with respect to any Tranche I
Revolving Lender at any time, the percentage which the amount of its Tranche I
Revolving Commitment at such time represents of the Total Tranche I Revolving
Loan Commitment ment Amount at such time. At any time after the Tranche I
Revolving Commitments shall have terminated, the term “Tranche I
Revolving ing Commitment Percentage” shall refer to a Tranche I
Revolving Lender’s Tranche I Revolving Commitment Percentage immediately
before such termination, adjusted to reflect any subsequent assignments pursuant
to Section 9.06(c).
“Tranche
I Revolving Credit Exposure” means, with respect to any Tranche I
Lender at any time, the greater, at such time, of (A) such Tranche I Revolving
Lender’s Tranche I Revolving Commitment and (B) such Tranche I Revolving
Lender’s Outstanding Tranche I Revolving Amount.
“Tranche
I Revolving Lender” means each Lender identified in the Loan and
Commitment Schedule as having a Tranche I Revolving Commitment and each Assignee
which acquires a Tranche I Revolving Commitment and/or Tranche I Revolving Loans
pursuant to Section 9.06(c), and their respective successors.
“Tranche
I Revolving Loan” means a loan made by a Tranche I Revolving Lender
pursuant to Section 2.01(b)(i) or a Revolving Loan outstanding under the
Existing Credit Agreement immediately prior to the Effective Date and deemed to
be a Tranche I Revolving Loan pursuant to Section 3.02(c).
“Tranche II Revolving Commitment” means:
(i) with respect
to each Tranche II Revolving Lender listed on the signature pages hereof, the
amount set forth opposite the name of such Lender under the heading
“Tranche II Revolving Commitment” in the Loan and Commitment
Schedule, and
(ii) with
respect to each Assignee which becomes a Tranche II Revolving Lender pursuant to
Section 9.06(c), the amount of the Tranche II Revolving Commitment thereby
assumed by it,
in each case as
such amount may be reduced from time to time pursuant to Section 2.08 or
increased or reduced by reason of an assignment to or by such Lender in
accordance with Section 9.06(c).
“Tranche
II Revolving Commitment Percentage” means, with respect to any Tranche
II Revolving Lender at any time, the percentage which the amount of its Tranche
II Revolving Commitment at such time represents of the Total Tranche II
Revolving Loan Commitment ment Amount at such time. At any time after the
Tranche II Revolving Commitments shall have terminated, the term
“Tranche II Revolving ing Commitment Percentage” shall refer to
a Tranche II Revolving Lender’s Tranche II Revolving Commitment Percentage
immediately before such termination, adjusted to reflect any subsequent
assignments pursuant to Section 9.06(c).
“Tranche
II Revolving Credit Exposure” means, with respect to any Tranche II
Revolving Lender at any time, the greater, at such time, of (A) such Tranche II
Revolving Lender’s Tranche II Revolving Commitment and (B) such Tranche II
Revolving Lender’s Outstanding Tranche II Revolving Amount.
“Tranche
II Revolving Lender” means each Lender identified in the Loan and
Commitment Schedule as having a Tranche II Revolving Commitment and each
Assignee which acquires a Tranche II Revolving Commitment and/or Tranche II
Revolving Loans pursuant to Section 9.06(c), and their respective successors.
“Tranche
II Revolving Loan” means a loan made by a Tranche II Revolving Lender
pursuant to Section 2.01(b)(ii) or a Revolving Loan outstanding under the
Existing Credit Agreement immediately prior to the Effective Date and deemed to
be a Tranche II Revolving Loan pursuant to Section 3.02(c).
“Type” has the meaning set forth in Section 1.03.
“Unfunded
Liabilities” means, with respect to any Plan at any time, the amount
(if any) by which (i) the value of all benefit liabilities under such Plan,
determined on a plan termination basis using the assumptions prescribed by the
PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market value
of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
“United States” means the United States of America.
“U.S. Dollar” and the sign“"$"” mean the lawful currency of the United States.
“U.S. Dollar-Denominated Borrowing” means a Borrowing comprised of one or more U.S. Dollar-Denominated Loans.
“"U.S. Dollar-Denominated Loan” means a Loan that is made in U.S. Dollars pursuant to the applicable Notice of Borrowing.
“U.S.
Dollar Equivalent” means on any date of determination with respect to
any amount of Euros, the equivalent amount in U.S. Dollars as determined by
reference to the New York foreign exchange selling rates, as determined by the
Administrative Agent (in accordance with its standard practices).
“U.S. Subsidiary” means a Subsidiary other than a Foreign Subsidiary.
“Working
Capital Facility” means a committed or uncommitted revolving credit
facility entered into by a Foreign Subsidiary to obtain working capital
financing in the ordinary course of business.