EXHIBIT 10.4
EXECUTION COPY
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 24, 1998
among
INSILCO CORPORATION
and
INSILCO DEUTSCHLAND GMBH
as Borrowers
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS ISSUING BANKS
and
DLJ CAPITAL FUNDING, INC.
as Syndication Agent
THE FIRST NATIONAL BANK OF CHICAGO
as Administrative Agent
ABN AMRO BANK N.V., Pittsburgh Branch
as Documentation Agent
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
as Lead Arranger
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CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of
November 24, 1998 (as amended, supplemented or otherwise modified from time to
time, this "Agreement"), entered into among Insilco Corporation, a Delaware
corporation (with its successors and permitted assigns, the "Company"),
Insilco Deutschland GmbH, a corporation organized under the laws of the
Federal Republic of Germany and wholly owned Subsidiary of the Company
("Insilco GmbH"), certain other foreign subsidiaries of the Company designated
herein as Foreign Borrowers (together with Insilco GmbH, the "Foreign
Borrowers"; and together with the Company, the "Borrowers"), the institutions
from time to time party hereto as Lenders, whether by execution of this
Agreement or an Assignment and Acceptance, the institutions from time to time
party hereto as Issuing Banks, whether by execution of this Agreement or an
Assignment and Acceptance, DLJ Capital Funding, Inc. ("DLJ"), in its capacity
as syndication agent for the Lenders and the Issuing Banks (the "Syndication
Agent"), ABN AMRO Bank N.V., Pittsburgh Branch ("ABN AMRO"), in its separate
capacity as documentation agent for the Lenders and the Issuing Banks (the
"Documentation Agent"; and, together with the Syndication Agent, the
"CoAgents"), and The First National Bank of Chicago ("First Chicago"), in its
separate capacity as administrative and collateral agent for the Lenders and
Issuing Banks (with its successors in such capacity, the "Administrative
Agent"; and, together with the CoAgents, the "Agents"), amends and restates in
its entirety that certain Credit Agreement, dated as of July 3, 1997, as
amended through the date hereof (the "Existing Credit Agreement"), among the
Company, the Lenders party thereto (the "Existing Lenders"), and the Issuing
Banks party thereto (the "Existing Issuing Banks"), DLJ, as Syndication Agent,
First Chicago, as Documentation Agent, and Citicorp USA, Inc., as
administrative and collateral agent for the Existing Lenders and the Existing
Issuing Banks (the "Existing Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Administrative Agent and
the Lenders to amend certain terms of the Existing Credit Agreement, among
other things, to provide for Term Loans to be made by the Term Loan Lenders in
an aggregate principal amount of $125,000,000;
WHEREAS, the Company has received gross proceeds in an amount
equal to $120,000,000 from the offering of the 1998 Subordinated Notes, the
net proceeds of which shall be used, together with proceeds of Loans, to
repurchase or defease Subordinated Notes, including those that were tendered
to the Company in connection with the Change of Control (as defined in the
Subordinated Note Indenture) caused by the consummation of the Recapitalization
Transactions;
WHEREAS, the Company, the Lenders, the CoAgents and the
Administrative Agent have agreed to amend and restate the Existing Credit
Agreement to provide for such amendments on the terms set forth in this
Agreement, which Agreement shall become effective upon satisfaction of certain
conditions precedent set forth herein;
WHEREAS, effective immediately prior to the Effective Date
referred to below, the Existing Administrative Agent resigned as collateral
and administrative agent for the Existing Lenders and the Existing Issuing
Banks and assigned to the Administrative Agent all of its rights and
obligations under the Existing Credit Agreement and the Loan Documents in its
capacity as administrative and collateral agent;
WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation of the obligations and liabilities
existing under the Existing Credit Agreement or evidence payment of all or any
of such obligations and liabilities, that this Agreement amend and restate in
its entirety the Existing Credit Agreement, and that from and after the
Effective Date the Existing Credit Agreement be of no further force or effect
except as to evidence the incurrence of the "Obligations" thereunder and the
representations and warranties made thereunder;
NOW, THEREFORE, in consideration of the above premises, the
Borrowers, the Lenders, the Issuing Banks, the CoAgents and the Administrative
Agent agree as follows:
ARTICLE
DEFINITIONS
1.0. Certain Defined Terms. In addition to the terms defined
above, the following terms used herein shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined:
"ABN AMRO" is defined in the preamble.
"Accommodation Obligation" means (without duplication) any
Contractual Obligation, contingent or otherwise, of one Person with respect to
any Indebtedness, obligation or liability of another, if the primary purpose
or intent thereof by the Person incurring the Accommodation Obligation is to
provide assurance to the obligee of such Indebtedness, obligation or liability
of another that such Indebtedness, obligation or liability shall be paid or
discharged, or that any agreements relating thereto shall be complied with, or
that the holders thereof shall be protected (in whole or in part) against loss
in respect thereof including, without limitation, direct and indirect
guarantees, endorsements (except for collection or deposit in the ordinary
course of business), notes co-made, recourse agreements, take-or-pay
agreements, keepwell agreements, agreements to purchase security therefor
(other than such agreements to purchase in the ordinary course of business) or
to provide funds for the payment or discharge thereof, agreements to maintain
solvency, assets, level of income, or other financial condition, and
agreements to make payment other than for value received.
"Administrative Agent" is defined in the preamble and shall
include any successor Administrative Agent appointed pursuant to Section 12.07.
"Affiliate" of any specified Person means any other Person
(i) which directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person,
(ii) which beneficially owns or holds 5% or more of any class of the Voting
Stock or other equity interest of such specified Person or (iii) of which 5% or
more of the Voting Stock or other equity interest is beneficially owned or
held by such specified Person or a Subsidiary of such specified Person, or, in
the case of any Lender which is an investment fund, the investment advisor
thereof and any investment fund having the same investment advisor. For the
purposes of this definition, (i) "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person directly or indirectly, whether through the ownership of Voting Stock,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing and (ii) Affiliates of the Company and
Subsidiaries of the Company shall not include the Company and Subsidiaries of
the Company.
"Agents" is defined in the preamble.
"Aggregate Pro Rata Share" means, with respect to any Lender,
the percentage obtained by dividing (i) the sum of (x) such Lender's Revolving
Credit Commitment at such time (as reduced from time to time in accordance
with the provisions of this Agreement) and (y) such Lender's Term Loan
Commitment (or, after the Effective Date, Term Loans) at such time by (ii) the
sum of (x) the aggregate amount of all Revolving Credit Commitments at such
time (as reduced from time to time in accordance with the provisions of this
Agreement) and (y) the aggregate amount of all Term Loan Commitments (or,
after the Effective Date, Term Loans) at such time; provided, however, if all
of the Commitments are terminated pursuant to the terms hereof, then
"Aggregate Pro Rata Share" means the percentage obtained by dividing (x) such
Lender's Term Loans and Revolving Credit Obligations by (y) the aggregate
amount of all Term Loans and Revolving Credit Obligations.
"Alternative Currency" means, subject to Section 3.06, (i) the
lawful currency of the United Kingdom, Japan, France or the Federal Republic
of Germany, (ii) after the commencement of the third stage of EMU (as defined
in Section 3.06), the euro and (iii) any additional currency approved by the
Administrative Agent (subject to the Administrative Agent's confirmation that
funding in such currency is generally provided by the Lenders); provided that
in the case of any such currency, such currency is freely transferable and
convertible into Dollars.
"Applicable Base Rate Margin" means at all times during the
applicable periods set forth below, (i) with respect to outstanding Term Loans
maintained as Base Rate Loans, 2.50% per annum and (ii) with respect to
outstanding Revolving Loans maintained as Base Rate Loans, the applicable rate
per annum set forth below under the heading "Applicable Base Rate Margin for
Revolving Loans";
Applicable Base Rate
Leverage Ratio Margin for Revolving Loans
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greater than or equal to 1.75%
5.00 to 1
Greater than or equal to
4.00 to 1 1.25%
less than 5.00 to 1
Greater than or equal to
3.00 to 1 0.75%
less than 4.00 to 1
less than 3.00 to 1 0.25%
The Leverage Ratio used to compute the Applicable Base Rate Margin for
Revolving Loans following the Effective Date shall be the Leverage Ratio set
forth in the Compliance Certificate most recently delivered by the Company to
the Administrative Agent pursuant to Section 7.01(d); changes in the
Applicable Base Rate Margin for Revolving Loans resulting from a change in the
Leverage Ratio shall become effective as to all Revolving Loans maintained as
Base Rate Loans upon delivery by the Company to the Administrative Agent of a
new Compliance Certificate pursuant to Section 7.01(d) and notice by the
Company to the Administrative Agent that a rate change is required.
Notwithstanding anything to the contrary set forth in this Agreement
(including the then effective Leverage Ratio), the Applicable Base Rate Margin
shall be 1.75% for Revolving Loans for the period commencing on the Effective
Date and ending on the delivery of a separate Compliance Certificate in
respect of the Company's fiscal month ending May 31, 1999. If the Company
shall fail to deliver a Compliance Certificate within 50 days after the end of
any fiscal month or quarter (or within 95 days, in the case of the last fiscal
quarter of any Fiscal Year) pursuant to Section 7.01(d), the Applicable Base
Rate Margin for Revolving Loans from and including the 51st (or 96th, as the
case may be) day after the end of such fiscal quarter to but not including the
date the Company delivers to the Administrative Agent a Compliance Certificate
shall conclusively equal the highest Applicable Base Rate Margin for Revolving
Loans set forth above.
"Applicable Eurocurrency Rate Margin" means at all times during
the applicable periods set forth below, (i) with respect to outstanding Term
Loans maintained as Eurocurrency Rate Loans, 3.75% per annum and (ii) with
respect to outstanding Revolving Loans maintained as Eurocurrency Rate Loans,
the applicable rate per annum set forth below under the heading "Applicable
Eurocurrency Rate Margin for Revolving Loans";
Applicable Base Rate
Leverage Ratio Margin for Revolving Loans
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greater than or equal to 5.00 to 1 3.00%
greater than or equal to 4.00 to 1
less than 5.00 to 1 2.50%
greater than or equal to 3.00 to 1
less than 4.00 to 1 2.00%
less than 3.00 to 1 1.50%
The Leverage Ratio used to compute the Applicable Eurocurrency Rate Margin for
Revolving Loans following the Effective Date shall be the Leverage Ratio set
forth in the Compliance Certificate most recently delivered by the Company to
the Administrative Agent pursuant to Section 7.01(d); changes in the
Applicable Eurocurrency Margin for Revolving Loans resulting from a change in
the Leverage Ratio shall become effective as to all Revolving Loans maintained
as Eurocurrency Rate Loans upon delivery by the Company to the Administrative
Agent of a new Compliance Certificate pursuant to Section 7.01(d) and notice
by the Company to the Administrative Agent that a rate change is required.
Notwithstanding anything to the contrary set forth in this Agreement
(including the then effective Leverage Ratio), the Applicable Eurodollar Rate
Margin shall be 3.00% for Revolving Loans for the period commencing on the
Effective Date and ending on the delivery of a separate Compliance Certificate
in respect of the Company's fiscal month ending May 31, 1999. If the Company
shall fail to deliver a Compliance Certificate within 50 days after the end of
any fiscal quarter (or within 95 days, in the case of the last fiscal quarter
of any Fiscal Year) as required pursuant to Section 7.01(d), the Applicable
Eurocurrency Rate Margin for Revolving Loans from and including the 51st (or
96th, as the case may be) day after the end of such fiscal month or quarter to
but not including the date the Company delivers to the Administrative Agent a
Compliance Certificate shall conclusively equal the highest Applicable
Eurocurrency Rate Margin for Revolving Loans set forth above.
"Applicable Lending Office" means, with respect to a particular
Lender, its Eurocurrency Lending Office in respect of provisions relating to
Eurocurrency Rate Loans and its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Payment Office" means, with respect to Obligations
payable in Dollars, the principal office of First Chicago in Chicago,
Illinois, and, with respect to Obligations payable in any Alternative
Currency, the principal office of First Chicago London in London, England or
such other office or offices as determined by the Administrative Agent from
time to time of which notice is given to the Borrowers, the Lenders and the
Issuing Banks in accordance with the provisions of Section 13.08.
"ARUP" means ARUP Alu-▇▇▇▇ und -Profil GmbH, a corporation
formed under the laws of the Federal Republic of Germany.
"Assignment and Acceptance" means an Assignment and Acceptance
in substantially the form of Exhibit A attached hereto and made a part hereof
(with blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest hereunder in accordance
with the provisions of Section 13.01.
"Associated Costs Rate" is defined in Schedule 1.01.5.
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C. Section Section 101 et seq.), as amended from time to time, and any
successor statute.
"Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the corporate base rate of interest announced by
First Chicago from time to time, changing when and as said corporate base rate
changes and (ii) the sum of the Federal Funds Rate for such day plus 0.5% per
annum.
"Base Rate Loans" means all Loans denominated in Dollars which
bear interest at a rate determined by reference to the Base Rate as provided
in Section 4.01(a).
"Benefit Plan" means a defined benefit plan as defined in
Section 3(35) of ERISA subject to Title IV of ERISA or Section 412 of the
Internal Revenue Code (other than a Multiemployer Plan) in respect of which
the Company or any ERISA Affiliate is, or within the immediately preceding
three (3) years was, an "employer" as defined in Section 3(5) of ERISA.
"Borrowers" is defined in the preamble.
"Borrowing" means a borrowing consisting of Loans of the same
Type and in the same currency made, continued or converted on the same day
and, in the case of Eurocurrency Rate Loans, for the same Eurocurrency
Interest Period.
"Business Day" means a day, in the applicable local time, which
is not a Saturday or Sunday or a legal holiday and on which banks are not
required or permitted by law or other governmental action to close (i) in
Chicago, Illinois and New York, New York, (ii) in the case of Eurocurrency
Rate Loans, in London, England and in the country of issue of the currency of
such Eurocurrency Rate Loans, and (iii) in the case of Letter of Credit
transactions for a particular Issuing Bank, in the place where its office for
issuance or administration of the pertinent Letter of Credit is located.
"Capital Expenditures" means, for any period with respect to
any Person, the aggregate of all expenditures (net of any insurance proceeds
or condemnation awards used to replace fixed assets, plant and equipment
following a casualty event or event of condemnation or taking with respect
thereto) by such Person to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements, but excluding
repairs and maintenance, and any amount credited to, or received by, such
Person in connection with a substantially contemporaneous trade in or sale of
the Property being replaced) during such period computed in accordance with
GAAP; provided, however, Capital Expenditures shall include, whether or not
such a designation would be in conformity with GAAP, that portion of Capital
Leases which is incurred and capitalized during such period on the
consolidated balance sheet of such Person and provided, further, Capital
Expenditures shall exclude, whether or not such a designation would be in
conformity with GAAP, Permitted Acquisitions to the extent such expenditures
are permitted under the terms of this Agreement.
"Capital Lease", as applied to any Person, means any lease of
any Property (whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
"Capital Stock", with respect to any Person, means any capital
stock of such Person, regardless of class or designation, and all warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls
or claims of any character with respect thereto.
"Cash Collateral" means cash or Cash Equivalents held by the
Administrative Agent, either CoAgent, any of the Issuing Banks or any of the
Lenders as security for the Obligations.
"Cash Equivalents" means (i) marketable direct obligations
issued or unconditionally guaranteed by the United States government and
backed by the full faith and credit of the United States government;
(ii) domestic and eurodollar certificates of deposit and time deposits,
bankers' acceptances and floating rate certificates of deposit issued by any
commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or
agencies (fully protected against currency fluctuations), which, at the time
of acquisition, are rated A1 (or better) by Standard & Poor's Corporation (or
its successors) or P1 (or better) by ▇▇▇▇▇'▇ Investors Service, Inc. (or its
successors); (iii) commercial paper of United States and foreign banks and
bank holding companies and their subsidiaries and United States and foreign
finance, commercial industrial or utility companies which, at the time of
acquisition, are rated A1 (or better) by Standard & Poor's Corporation (or its
successors) or P1 (or better) by ▇▇▇▇▇'▇ Investors Service, Inc. (or its
successors); (iv) marketable direct obligations of any state of the United
States or any political subdivision of any such state given on the date of
such investment the highest credit rating by ▇▇▇▇▇'▇ Investor Service, Inc.
(or its successors) and Standard & Poor's Corporation (or its successors);
(v) money market funds organized under the laws of the United States or any
state thereof that invests in any of the Investments identified under clauses
(i), (ii), (iii) and (iv) of this definition; and (vi) reverse purchase
agreements covering obligations of the type specified in clause (i) of this
definition; provided, that the maturities of any such Cash Equivalents
referred to in clauses (i) through (vi) shall not exceed one hundred eighty
(180) days.
"Cash Flow Period" means, as separate periods, each Fiscal Year
of the Borrower beginning with Fiscal Year 1999.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section Section 9601 et
seq., as amended, and any regulations promulgated thereunder.
"CERCLIS" is defined in Section 6.01(o).
"Change of Control" means (i) the failure of Holdco at any time
to own, directly or indirectly, free and clear of all Liens (except Liens in
favor of the Administrative Agent), all right, title and interest in 100% of
the Capital Stock of the Company; (ii) the failure of the Investors to own at
least 51% (on a fully diluted basis) of the economic and voting interest in the
Voting Stock of Holdco; (iii) the failure of the Investors at any time to have
the right to designate or nominate at least 51% of the Board of Directors of
Holdco or (iv) the occurrence of a "Change of Control" as defined in the
Holdco Discount Note Indenture or any other agreement or certificate of
designation evidencing or governing the terms of the Holdco Securities.
"Claim" means any claim or demand, by any Person, of whatsoever
kind or nature for any alleged Liabilities and Costs, whether based in
contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"CoAgents" is defined in the preamble.
"Collateral" means all Property and interests in Property now
owned or hereafter acquired by Holdco, the Company or any of the Subsidiary
Guarantors upon which a Lien is granted under any of the Loan Documents.
"Commercial Letter of Credit" means any documentary letter of
credit issued by an Issuing Bank pursuant to Section 2.04 for the account of
the Company or a Subsidiary of the Company, which is drawable upon
presentation of documents evidencing the sale or shipment of goods purchased
by the Company or such Subsidiary in the ordinary course of its business.
"Commitment" means, with respect to any Lender, such Lender's
Revolving Credit Commitment and Term Loan Commitment.
"Common Stock" means the Company's common stock, $0.001 par
value.
"Company" is defined in the preamble.
"Company Guaranty" means the Amended and Restated Company
Guaranty, dated as of the Effective Date, duly executed and delivered to the
Administrative Agent by the Company, which Guaranty amends and restates the
Company's obligations as a guarantor under the Borrower Guaranty, dated as of
July 3, 1997, as amended, to which it is a party, as the same may be amended,
supplemented or otherwise modified from time to time.
"Company Pledge Agreement" means the Amended and Restated
Company Pledge Agreement, dated as of the Effective Date, duly executed and
delivered to the Administrative Agent by the Company, which Pledge Agreement
amends and restates the Company's obligations as a pledgor under the Borrower
Pledge Agreement, dated as of November 21, 1994, as amended, to which it is a
party, as the same may be amended, supplemented or otherwise modified from
time to time.
"Company Security Agreement" means the Amended and Restated
Company Security Agreement, dated as of the Effective Date, duly executed and
delivered to the Administrative Agent by the Company, which Security Agreement
amends and restates the Company's obligations as a grantor under the Borrower
Security Agreement, dated as of November 21, 1994, as amended, to which it is
a party, as the same may be amended, supplemented or otherwise modified from
time to time.
"Company's Projections" means the consolidated financial
projections dated November 3, 1998 prepared by the Company with respect to the
Company and its Subsidiaries on an annual basis for Fiscal Years 1999 through
2008, and supporting materials delivered in connection therewith delivered by
the Company to the Lenders on or prior to the Effective Date.
"Compliance Certificate" is defined in Section 7.01(d).
"Consolidated Cash Interest Expense" means, for any period on a
consolidated basis for any Person and its Subsidiaries, all of the following
as determined in conformity with GAAP, (i) total interest expense (including
the interest component of Capital Lease obligations for such period),
including, without limitation, bank fees, commissions, discounts and other fees
and charges owed with respect to letters of credit (including, without
limitation, the Letter of Credit Fee but excluding customary fees and charges
with respect to the issuance, administration, amendment and payment or
cancellation of letters of credit), interest expense capitalized during such
period and net interest costs under Interest Rate Contracts, minus (ii) to the
extent included in the determination of total interest expense, the sum of
(A) the amount of financing costs and expenses which are capitalized and
amortized, (B) amortization of debt discount, (C) interest paid in Property
other than cash, (D) any other interest expense not payable in cash and
(E) cash payments made to purchase interest rate caps, collars or similar
derivatives for any period and the amortized portion of such payments, minus
(iii) the sum of (A) any interest income received in respect of its
Investments in cash and Cash Equivalents and (B) to the extent not deducted
from total interest expense, any net payments received during such period
under Interest Rate Contracts.
"Consolidated Current Assets" means, at any time, the current
assets of the Company and its Subsidiaries on a consolidated basis, determined
in conformity with GAAP.
"Consolidated Current Liabilities" means, at any time, the
current liabilities of the Company and its Subsidiaries on a consolidated
basis, determined in conformity with GAAP.
"Consolidated Fixed Charges" means, for any period on a
consolidated basis for any Person and its Subsidiaries, the sum of the amounts
for such period of (i) Consolidated Cash Interest Expense of such Person and
its Subsidiaries and (ii) scheduled payments of principal on Funded Debt of
such Person and its Subsidiaries (including, without limitation, the principal
component of Capital Lease obligations and, in the case of the Company, the
Term Loans and excluding any scheduled reductions of the Revolving Credit
Commitments pursuant to Section 3.01(c)).
"Consolidated Net Income" means, for any period on a
consolidated basis for any Person and its Subsidiaries, the net income (or
loss) after taxes for such period taken as a single accounting period,
determined in conformity with GAAP.
"Consolidated Net Worth" means, with respect to any Person, at
any time, (i) consolidated stockholders' equity of such Person and its
consolidated Subsidiaries plus (or minus) (ii) any negative (or positive)
cumulative foreign currency translation adjustments applicable to such Person
in accordance with GAAP minus (iii) to the extent included in stockholders'
equity, minority interests in such Person's Subsidiaries held by Persons other
than such Person.
"Constituent Document" means, with respect to any entity,
(i) the articles/certificate of incorporation (or the equivalent
organizational documents) of such entity, (ii) the bylaws (or the equivalent
governing documents) of such entity and (iii) any document setting forth the
designation, amount and/or relative rights, limitations and preferences of any
class or series of such entity's Capital Stock.
"Contaminant" means any pollutant, hazardous substance,
radioactive substance, toxic substance, hazardous waste, radioactive waste,
special waste, petroleum or petroleum-derived substance or waste, asbestos,
polychlorinated biphenyls (PCBs), or any hazardous or toxic constituent
thereof, as these terms are defined under Environmental, Health or Safety
Requirements of Law.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by
which it or any of its Properties is bound, or to which it or any of its
Properties is subject.
"Contribution Agreement" means the Amended and Restated
Contribution Agreement, dated as of the Effective Date, duly executed and
delivered to the Administrative Agent by each of the Subsidiary Guarantors,
which Contribution Agreement amends and restates each Subsidiary Guarantor's
obligations under the Amended and Restated Contribution Agreement, dated as of
July 10, 1997, as amended, to which each is a party, as the same may be
amended, supplemented or otherwise modified from time to time.
"Cure Loans" is defined in Section 3.02(b)(v)(C).
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"Customary Permitted Liens" means Liens on the Property of any
Person (other than Environmental Liens and Liens in favor of the PBGC)
(i) with respect to the payment of taxes, assessments or
governmental charges or levies in all cases which are not yet due or which are
being contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP;
(ii) of landlords arising by statute and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen, banker's liens and
other Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
(iii) incurred or pledges and deposits made in the ordinary
course of business in connection with worker's compensation, unemployment
insurance, pensions or other types of social security benefits, or to secure
the performance of statutory obligations or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed money),
surety, warranty, advance payment, appeal, customs, performance bonds and
similar obligations;
(iv) arising with respect to zoning restrictions, licenses,
covenants, building restrictions and other similar charges or encumbrances on
the use of Real Property of such Person which do not materially interfere with
the ordinary conduct of such Person's business;
(v) any interest or title of a lessor under any lease permitted
hereunder;
(vi) any interest or title of any lessee under any leases or
subleases of Real Property of such Person, provided that all such Liens do not
in the aggregate materially detract from the value of such Person's Property
or materially impair the use thereof in the operation of the businesses;
(vii) constituting the filing of notice financing statements of
a lessor's rights in and to personal Property leased to such Person in the
ordinary course of such Person's business;
(viii) attachment, prejudgment or judgment Liens in existence
less than 60 days after the entry thereof or with respect to which execution
has been stayed or with respect to which payment in full above any applicable
deductible is covered by insurance or a bond or, with respect to any
prejudgment Lien, the underlying claim for which is being contested in good
faith and for which reserves or other appropriate provisions, if any, as
required by GAAP have been made;
(ix) Liens incurred to secure any surety bonds, appeal bonds,
supersedeas bonds or other instruments serving a similar purpose in connection
with the appeal of any judgment or defense of any claim relating to a
prejudgment Lien; and
(x) defects and irregularities in titles, survey exceptions,
encumbrances, easements or reservations of others for rights-of-way, roads,
pipelines, railroad crossings, services, utilities or other similar purposes;
outstanding mineral rights or reservations (including rights with respect to
the removal of material resource) which do not materially diminish the value
of the surface estate, assuming usage of such surface estate similar to that
being carried on by the Company or its Subsidiaries as of the Effective Date.
"Decision Period" is defined in Section 8.07.
"Decision Reserve" is defined in Section 8.07.
"Default" means an event which, with the giving of notice or
the lapse of time, or both, would constitute an Event of Default.
"Default Notice", with respect to any Collection Account, has
the meaning specified in the Collection Account Agreement governing such
Collection Account.
"Disbursement Account" means account number ▇▇▇▇▇▇▇ of the
Company at First Chicago, or such other bank account as shall subsequently be
designated as the Disbursement Account of the Company by notice to the
Administrative Agent.
"DLJ" is defined in the preamble.
"DLJ Commitment Letter" means the Commitment Letters and
accompanying Fee Letter, each dated as of March 20, 1998, as amended by letter
agreement dated as of August 17, 1998, issued by (i) DLJ Capital Funding, Inc.
and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation in favor of DLJ
Merchant Banking II, Inc., (ii) various Investors in favor of MergerSub, and
(iii) DLJ Bridge Finance, Inc. in favor of DLJ Merchant Banking II, Inc.
"DLJMB Entities" means DLJ Merchant Banking Partners II, L.P.,
DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ
Diversified ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇ ▇▇, ▇.▇., ▇▇▇ First ESC L.P., DLJ
Millennium Partners, L.P., DLJ Millennium PartnersA, L.P. and DLJ Merchant
Banking Partners IIA, L.P.
"Documentation Agent" is defined in the preamble to this
Agreement.
"DOL" means the United States Department of Labor and any
successor department or agency.
"Dollars" and "$" mean the lawful money of the United States.
"Dollar Equivalent" means, with respect to any Alternative
Currency at the time of determination thereof, the equivalent of such currency
in Dollars determined at the rate of exchange quoted by (i) the Administrative
Agent in Chicago, Illinois at 11:00 a.m. (Chicago time) on the date of
determination, to prime banks in New York City for the spot purchase in the
New York foreign exchange market of such amount of Dollars with such
Alternative Currency or, (ii) solely for purposes of any determination made by
First Chicago London pursuant to the last sentence of Section 2.02(a), First
Chicago London, in London, England at 12:00 noon (London time) on the date of
determination, to prime banks in London for the spot purchase in the London
foreign exchange market of such amount of Dollars with such Alternative
Currency.
"Domestic Lending Office" means, with respect to any Lender,
such Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on Schedule 1.01 or on the Assignment and
Acceptance by which it became a Lender or such other United States office of
such Lender as it may from time to time specify by written notice to the
Company and the Administrative Agent.
"Domestic Subsidiary" means a Subsidiary of the Company which
is organized and existing under the laws of the United States of America, any
State thereof, the District of Columbia, Puerto Rico or the United States
Virgin Islands.
"EBITDA" means, for any applicable period, subject to
Section 1.03, the sum (without duplication) for the Company and its
Subsidiaries on a consolidated basis of
(a) Consolidated Net Income (less equity income from
unconsolidated Affiliates to the extent included in the determination of
Consolidated Net Income), plus
(b) the amount deducted in determining Consolidated Net Income
representing (i) net non-cash periodic post-retirement benefits and
(ii) non-cash charges or expenses, including depreciation, amortization
expense and non-cash expenses related to employee stock options and stock
incentive plans, plus
(c) the amount deducted in determining Consolidated Net Income
representing income taxes (whether paid or deferred), plus
(d) the amount deducted in determining Consolidated Net Income
representing (i) total interest expense and (ii) fees, expenses and management
bonuses and financing costs incurred in connection with the Recapitalization
Transactions and the transactions contemplated in the 1998 Subordinated Notes
and this Agreement, plus
(e) the amount deducted in determining Consolidated 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 from the Company or any of its Subsidiaries to the Company
or any of its Subsidiaries) or any extraordinary or non-recurring loss, plus
(f) the amount of cash dividends received by the Company or
any Subsidiary Guarantor from unconsolidated Affiliates of the Company (in
excess of the amount of any cash capital contributions made by the Company or
any Subsidiary Guarantor to such Affiliates), minus
(g) Restricted Junior Payments of the type referred to in
clause (viii) of Section 9.06 made during such period, minus
(h) the amount added in determining Consolidated Net Income
representing (i) any net gain in excess of $5,000,000 in any Fiscal Year
realized in connection with any sale, lease, conveyance or other disposition
of any asset (other than in the ordinary course of business from the Company
or any of its Subsidiaries to the Company or any of its Subsidiaries) or any
extraordinary or non-recurring gain and (ii) any non-cash items increasing
Consolidated Net Income.
"Effective Date" is defined in Section 5.01.
"Eligible Assignee" means (i) a Lender or any Affiliate
thereof; (ii) a commercial bank having total assets in excess of
$1,000,000,000; (iii) a finance company, insurance company, other financial
institution or fund, reasonably acceptable to the Administrative Agent and
approved by the Company (which approval shall not be unreasonably withheld),
which is regularly engaged in making or purchasing loans; (iv) a savings and
loan association or savings bank organized under the laws of the United States
or any state thereof having total assets in excess of $500,000,000; or (v) a
finance company, insurance company, bank, other financial institution or fund
reasonably acceptable to the Administrative Agent and approved by the Company,
which approval shall not be unreasonably withheld. In addition to the
foregoing, an Eligible Assignee must be an "accredited investor" or "qualified
institutional buyer" (as defined in Regulation D and Rule 144A, respectively,
under the Securities Act) to the extent it is not a bank or other financial
institution regularly engaged in making commercial loans.
"Environmental, Health or Safety Requirements of Law" means
all Requirements of Law relating to or addressing the environment, health or
safety, including but not limited to any law, regulation, or order relating to
the use, handling, or disposal of any Contaminant, any law, regulation, or
order relating to Remedial Action and any law, regulation, or order relating to
workplace or worker safety and health, each as from time to time hereafter in
effect.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (i) liabilities arising under any Environmental, Health or
Safety Requirements of Law, or (ii) damages arising from, or costs incurred by
such Governmental Authority in response to, a Release or threatened Release of
a Contaminant into the environment.
"Environmental Property Transfer Acts" means any applicable
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the closure of any Property or the
transfer, mortgage, sale or lease of any Property or deed or title for any
Property for environmental reasons, including, but not limited to, any
so-called "Environmental Cleanup Responsibility Acts" or "Responsible Transfer
Acts".
"Equipment" means, with respect to any Person, all of such
Person's present and future (i) equipment, including, without limitation,
machinery, manufacturing, distribution, selling, data processing and office
equipment, assembly systems, tools, molds, dies, fixtures, appliances,
furniture, furnishings, vehicles, vessels, aircraft, aircraft engines, and
trade fixtures, (ii) other tangible personal Property (other than such
Person's Inventory), and (iii) any and all accessions, parts and appurtenances
attached to any of the foregoing or used in connection therewith, and any
substitutions therefor and replacements, products and proceeds thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" means any (i) corporation which is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the Internal Revenue Code) as the Company, (ii) partnership or other
trade or business (whether or not incorporated) under common control (within
the meaning of Section 414(c) of the Internal Revenue Code) with the Company,
and (iii) member of the same affiliated service group (within the meaning of
section 414(m) of the Internal Revenue Code) as the Company, any corporation
described in clause (i) above or any partnership or trade or business
described in clause (ii) above.
"Eurocurrency Affiliate" means, with respect to each Lender,
the Affiliate of such Lender (if any) set forth below such Lender's name under
the heading "Eurocurrency Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Company
and the Administrative Agent.
"Eurocurrency Interest Payment Date" means (i) with respect to
any Eurocurrency Rate Loan, the last day of each Eurocurrency Interest Period
applicable to such Loan and (ii) with respect to any Eurocurrency Rate Loan
having a Eurocurrency Interest Period in excess of three (3) calendar months,
the last day of each three (3) calendar month interval during such
Eurocurrency Interest Period.
"Eurocurrency Interest Period" is defined in Section 4.02(b).
"Eurocurrency Interest Rate Determination Date" is defined in
Section 4.02(c).
"Eurocurrency Lending Office" means, with respect to any
Lender, the office or offices of such Lender (if any) set forth below such
Lender's name under the heading "Eurocurrency Lending Office" on Schedule 1.01
or on the Assignment and Acceptance by which it became a Lender or such office
or offices of such Lender as it may from time to time specify by written
notice to the Company and the Administrative Agent.
"Eurocurrency Rate" shall mean, with respect to any
Eurocurrency Interest Period applicable to a Borrowing of Eurocurrency Rate
Loans, an interest rate per annum determined by dividing (A) the interest rate
per annum obtained by the Administrative Agent by reference to "Telerate page
3750" or "Telerate page 3740", as appropriate (or if such page on such service
ceases to display such information, such other page as may replace it on that
service for the purpose of display of such information) to be the rate per
annum at which deposits in Dollars or in the applicable Alternative Currency
are offered to leading banks in the London interbank market at approximately
11:00 a.m. (London time) on the Eurocurrency Interest Rate Determination Date
for a period equal to such Eurocurrency Interest Period (rounded upward to the
nearest whole multiple of one-hundredth of one percent (0.01%)) by (B) a
percentage equal to 100% minus the Eurocurrency Reserve Percentage; provided,
however, that if Telerate page 3750 or 3740, as the case may be, is not
available for any reason, the applicable Eurocurrency Rate shall be an
interest rate per annum obtained by dividing (A) the interest rate per annum
obtained by the Administrative Agent by reference to Reuters Screen FRBD to be
the rate per annum at which deposits in Dollars or in the applicable
Alternative Currency are offered to leading banks in the London interbank
market at approximately 11:00 a.m. (London time) on the Eurocurrency Interest
Rate Determination Date for a period equal to such Eurocurrency Interest
Period (rounded upward to the nearest whole multiple of one-hundredth of one
percent (0.01%)) by (B) a percentage equal to 100% minus the Eurocurrency
Reserve Percentage. The Eurocurrency Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve
Percentage. For purposes of this definition, "Telerate page 3750" means the
display designated as "Page 3750", and "Telerate page 3740" means the display
designated as "Page 3740", in each case on the Telerate Service (or such other
page as may replace Page 3750 or Page 3740 on the service as may be nominated
by the British Bankers' Association as the information vendor for the purpose
of displaying British Bankers' Association Interest Settlement Rates for
deposits in the currency concerned).
"Eurocurrency Rate Loans" means those Loans denominated in
Dollars or in an Alternative Currency which bear interest at a rate determined
by reference to the Eurocurrency Rate and the Applicable Eurocurrency Rate
Margin as provided in Section 4.01(a).
"Eurocurrency Reserve Percentage" means, for any day, (i) that
percentage which is in effect on such day, as prescribed by the Federal
Reserve Board for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in Chicago,
Illinois with deposits exceeding one billion Dollars in respect of
"Certificate of Deposit Liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined or any category of extensions of credit
or other assets which includes loans by a nonUnited States office of any bank
to United States residents) and (ii) solely in respect of Loans denominated in
pounds sterling, the Associated Costs Rate.
"Event of Default" means any of the occurrences set forth in
Section 11.01 after the expiration of any applicable grace period and the
giving of any applicable notice, in each case as expressly provided in Section
11.01.
"Excess Cash Flow" means for any Cash Flow Period (without
duplication), an amount (not less than zero) equal to
(a) EBITDA for such Cash Flow Period; minus
(b) the sum, without duplication (for such Cash Flow Period) of
() Consolidated Cash Interest Expense for such Cash Flow
Period; plus
() scheduled payments, and optional and mandatory
prepayments to the extent actually made or required to be
made, of the principal amount of the Term Loans and any
other Funded Debt and mandatory prepayments of the
principal amount of Revolving Loans pursuant to Section
3.01(b) in connection with a permanent reduction of the
Revolving Credit Commitments, in each case to the extent
actually made and for such applicable period; plus
() all federal, state and foreign income taxes paid or
payable in cash by the Company and its Subsidiaries in such
Cash Flow Period; plus
() Capital Expenditures actually made during such Cash
Flow Period (excluding that portion of Capital Expenditures
financed by Capitalized Leases or purchase money
Indebtedness pursuant to Section 9.01(vi); plus
() the amount of the net increase (if any) of
Consolidated Current Assets, other than Investments in cash
and Cash Equivalents, over Consolidated Current Liabilities
of the Company and its Subsidiaries for such Cash Flow
Period; plus
() Investments permitted and actually made in cash
pursuant to clauses (iv)(A), (v)(A), (vi), (ix), and (x) of
Section 9.04 during such Cash Flow Period; plus
() gains on sales of assets (other than sales permitted
under clause (i) of Section 9.02); plus
() Restricted Junior Payments of the type described in
clause (viii) of Section 9.06 made during such Cash Flow
Period; plus
() amounts paid in cash in respect of periodic post-
retirement benefits (whether or not previously accrued)
during such Cash Flow Period; plus
() amounts paid in cash in respect of fees, expenses
and management bonuses and financing costs during such Cash
Flow Period in connection with the Recapitalization
Transactions and the transactions contemplated in the 1998
Subordinated Notes and this Agreement; plus
() amounts paid in cash in respect of 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 from the Company or any of its
Subsidiaries to the Company or any of its Subsidiaries) or
any extraordinary or non-recurring loss; plus
() long-term liabilities (other than the Obligations
and other Funded Debt) actually paid in cash by the Company
and its Subsidiaries during such Cash Flow Period.
"Existing Administrative Agent" is defined in the preamble.
"Existing Credit Agreement" is defined in the preamble.
"Existing Issuing Banks" is defined in the preamble.
"Existing Lender" is defined in the preamble.
"Fair Market Value" means, (i) with respect to any Property
(other than Property covered in clauses (ii), (iii) and (iv) below) of any
Person, the value of the consideration obtainable in a sale or other
disposition of such Property in the open market, assuming a sale by a willing
seller to a willing purchaser dealing at arm's length and arranged in an
orderly manner over a reasonable period of time, each having reasonable
knowledge of the nature and characteristics of such Property, neither being
under any compulsion to act and such transaction has been approved by the
board of directors of such Person, (ii) with respect to Property, the value of
the consideration obtainable in a sale or other disposition of such Property
as determined (A) in good faith by the board of directors of such Person or
(B) by an appraisal of such Property, provided that such appraisal was
performed relatively contemporaneously with such determination of the fair
market value by an independent third party appraiser and the basic assumptions
underlying such appraisal have not materially changed since the date thereof,
(iii) with respect to any Property for which the consideration for such sale
or other disposition is less than $500,000, as reflected on the ▇▇▇▇ of sale
or invoice or in the relevant contract for the same or (iv) with respect to
any marketable security at any date, the market price of such security at the
time of sale, or in a private transaction, the closing price of such security
on the business day (on which any national securities exchange is open for the
normal transaction of business) next preceding such date, as appearing in any
published list of any national securities exchange or in the National Market
List of the National Association of Securities Dealers, Inc. or, if there is
no such closing price of such security, the final price for the purchase of
such security at face value quoted on such business day by a financial
institution of recognized standing which regularly deals in securities of such
type.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day in Chicago, Illinois, for the
next preceding Business Day) in Chicago, Illinois by the Federal Reserve Bank
of Chicago, or if such rate is not so published for any day which is a
Business Day in Chicago, Illinois, the average of the quotations for such day
on such transactions received by from three federal funds brokers of
recognized standing selected by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any Governmental Authority succeeding to its
functions.
"First Chicago" is defined in the preamble.
"First Chicago London" means The First National Bank of
Chicago, London Branch.
"Fiscal Year" means the fiscal year of the Company, which
shall be the 12month period ending on December 31 of each calendar year.
"Fixed Charge Coverage Ratio" means, with respect to any
period, the ratio of (i) EBITDA of the Company and its Subsidiaries for such
period, minus Capital Expenditures of the Company and its Subsidiaries during
such period (excluding Capital Expenditures financed by Capital Leases or
purchase money Indebtedness pursuant to Section 9.01(vi)), to
(ii) Consolidated Fixed Charges of the Company and its Subsidiaries for such
period. For purposes of determining the Fixed Charge Coverage Ratio on an
historical pro forma basis in connection with clause (i) of the definition of
Permitted Acquisition, only Capital Expenditures of the acquired operations
that are made for maintenance purposes shall be subtracted from EBITDA
pursuant to clause (i) of this definition.
"Foreign Borrower" is defined in the preamble and included any
Wholly Owned Foreign Subsidiary designated by the Company and approved by the
Requisite Lenders pursuant to Section 2.07.
"Foreign Borrower Sublimit" means (i) with respect to Insilco
GmbH, $15,000,000 and (ii) with respect to any other Foreign Borrower, the
amount designated by the Company as such Borrower's "Foreign Borrower
Sublimit" and approved by the Requisite Lenders pursuant to Section 2.07.
"Foreign Employee Benefit Plan" means any employee benefit
plan as defined in Section 3(3) of ERISA which is maintained or contributed to
for the benefit of the employees of the Company, any of its Subsidiaries or
any of its ERISA Affiliates, but which is not covered by ERISA pursuant to
ERISA Section 4(b)(4).
"Foreign Pension Plan" means any Foreign Employee Benefit Plan
which, under applicable local law, is required to be funded through a trust or
other funding vehicle.
"Foreign Subsidiary" means any Subsidiary of the Company other
than a Domestic Subsidiary.
"Funded Debt" means, to the extent the following would be
reflected on a consolidated balance sheet of the Company and its Subsidiaries
prepared in accordance with GAAP, the principal amount of all Indebtedness of
the Company and its Subsidiaries in respect of borrowed money, evidenced by
debt securities, debentures, acceptances, notes or other similar instruments,
in respect of Capital Lease Obligations, in respect of Reimbursement
Obligations or in respect of the deferred purchase price of Property or
services, except (i) accounts payable and accrued expenses arising in the
ordinary course of business and (ii) payment obligations owing to Governmental
Authorities or other Persons (excluding the principal portion owing to trade
creditors) subject to the Plan of Reorganization.
"Funding Date" means, with respect to any Loan, the date of
the funding of such Loan.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board,
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board or in such other statements by such other entity as
may be in general use by significant segments of the accounting profession as
in effect from time to time (unless otherwise specified pursuant to Section
13.04).
"General Intangibles" means, with respect to any Person, all
of such Person's present and future choses in action, causes of action, and
all other intangible personal Property of every kind and nature (other than
Receivables), including, without limitation, corporate, partnership and other
business records, inventions, designs, patents, patent applications,
trademarks, trademark applications, trade names, trade secrets, goodwill,
registrations, copyrights, licenses, franchises, customer lists, tax refunds,
tax refund claims, rights and claims against carriers, shippers, franchisees,
lessors, and lessees, and rights to indemnification.
"Governmental Authority" means any federal, state or local
government or other political subdivision and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to such government or political subdivision.
"Guarantor" means Holdco, the Company and each Subsidiary
Guarantor.
"Holdco" means Insilco Holding Co., a Delaware corporation.
"Holdco Discount Notes" means the Senior Discount Notes due
2008 of Holdco, with respect to which no cash interest shall be payable during
the first five years after the issuance thereof, issued by Holdco and governed
by the terms of the Holdco Discount Note Indenture.
"Holdco Discount Note Indenture" means the Indenture dated as
of August 17, 1998 entered into between Holdco and the trustee thereunder, as
the same may be amended, supplemented or otherwise modified from time to time.
"Holdco Guaranty" means the Amended and Restated Guaranty
dated as of the Effective Date duly executed and delivered to the
Administrative Agent by Holdco, which Guaranty amends and restates Holdco's
obligations as a guarantor under the Amended and Restated Guaranty, dated as
of August 17, 1998, to which it is a party, as the same may be amended,
supplemented or otherwise modified from time to time.
"Holdco Loan" means a loan made by Holdco to the Company from
proceeds of the dividend made by the Company to Holdco pursuant to clause (vi)
of the definition of Recapitalization Transactions, which loan is subordinated
to the Obligations pursuant to the Holdco Guaranty and shall payable on
demand, subject to such subordination and to the restrictions on the payment
of principal and interest thereon contained in Section 9.06(viii).
"Holdco Pledge Agreement" means the Amended and Restated Pledge
Agreement, dated as of the Effective Date, between Holdco and the
Administrative Agent, which Pledge Agreement amends and restates Holdco's
obligations as a pledgor under the Pledge Agreement, dated as of August 17,
1998, as amended, to which it is a party, as the same may be amended,
supplemented or otherwise modified from time to time.
"Holdco Securities" means (i) the Holdco Discount Notes and
(ii) the preferred stock issued pursuant to the Certificate of Designations,
Preferences and Rights of 15% Senior Exchangeable Preferred Stock Due 2010,
dated August 17, 1998 or any Securities issued in exchange for such preferred
stock, in each case, with respect to which no cash interest or cash dividends
shall be payable during the first five years after August 17, 1998.
"Holdco Security Agreement" means the Amended and Restated
Security Agreement, dated as of the Effective Date, between Holdco and the
Administrative Agent, which Security Agreement amends and restates Holdco's
obligations as a grantor under the Amended and Restated Security Agreement,
dated as of August 17, 1998, as amended, to which it is a party, as the same
may be amended, supplemented or otherwise modified from time to time.
"Holder" means any Person entitled to the benefits of the
Collateral as security for any of the Obligations, including, without
limitation, the Administrative Agent, the CoAgents, each Lender and each
Issuing Bank.
"Indebtedness", as applied to any Person, means, at any time
(without duplication), (a) all indebtedness, obligations or other liabilities
of such Person (i) for borrowed money or evidenced by debt securities,
debentures, acceptances, notes or other similar instruments, and any accrued
interest, fees and charges relating thereto, (ii) under profit payment
agreements or in respect of obligations to redeem, repurchase or exchange any
Securities of such Person or to pay dividends in respect of any Capital Stock,
(iii) with respect to letters of credit issued for such Person's account,
(iv) to pay the deferred purchase price of Property or services, except
accounts payable and accrued expenses arising in the ordinary course of
business, (v) in respect of Capital Leases or (vi) for payment of obligations
owing to Governmental Authorities or other Persons (other than for obligations
to trade creditors that arose prior to the effective date of the Plan of
Reorganization in the ordinary course of business) subject to the Plan of
Reorganization; (b) all indebtedness, obligations or other liabilities of such
Person or others secured by a Lien on any Property of such Person, whether or
not such indebtedness, obligations or liabilities are assumed by such Person,
all as of such time; (c) all indebtedness, obligations or other liabilities of
such Person in respect of Interest Rate Contracts and Currency Agreements, net
of liabilities owed to such Person by the counterparties thereon; and (d) the
guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, of all or any part of
the indebtedness, obligations or liabilities referred to in clauses (a)
through (c) above.
"Indemnitee" is defined in Section 13.03.
"Indemnified Matter" is defined in Section 13.03.
"Insilco GmbH" is defined in the preamble.
"Interbank Rate" means, for any period, (i) in respect of
Revolving Loans denominated in Dollars, the Federal Funds Rate, and (ii) in
respect of Multicurrency Loans, First Chicago London's costs of funds for such
period.
"Interest Coverage Ratio" means, with respect to any period,
the ratio of (i) EBITDA of the Company and its Subsidiaries for such period to
(ii) Consolidated Cash Interest Expense of the Company and its Subsidiaries
for such period.
"Interest Rate Contracts" means interest rate exchange, swap,
collar or cap or similar agreements providing interest rate protection.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, any
successor statute and any regulations or guidance promulgated thereunder.
"Inventory" means, with respect to any Person, all of such
Person's present and future (i) inventory (including unbilled accounts
receivable), (ii) goods, merchandise and other personal Property of such
Person furnished or to be furnished under any contract of service or intended
for sale or lease, and all goods consigned by such Person and all other items
which have previously constituted Equipment but are then currently being held
for sale or lease in the ordinary course of such Person's business, (iii) raw
materials, work-in-process and finished goods, (iv) materials and supplies of
any kind, nature or description used or consumed in such Person's business or
in connection with the manufacture, production, packing, shipping,
advertising, finishing or sale of any of the Property of such Person described
in clauses (i) through (iii) above, (v) goods in which such Person has a joint
or other interest to the extent of such Person's interest therein or right of
any kind (including, without limitation, goods in which such Person has an
interest or right as consignee), and (vi) goods which are returned to or
repossessed by such Person; in each case whether in the possession of such
Person, a bailee, a consignee, or any other Person for sale, storage, transit,
processing, use or otherwise, and any and all documents for or relating to any
of the foregoing.
"Investment" means, with respect to any Person, (i) any
purchase or other acquisition by that Person of Securities, or of a beneficial
interest in Securities issued by or other equity ownership interest in any
other Person, (ii) any purchase by that Person of all or a significant part of
the Property of a business conducted by another Person, and (iii) any loan,
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable and similar items
made or incurred in the ordinary course of business as presently conducted),
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of Property by such Person
other than in the ordinary course of its business.
"Investors" means the DLJMB Entities and their respective
Affiliates and 399 Venture Partners, Inc., a wholly-owned Subsidiary of
Citicorp.
"IRS" means the Internal Revenue Service and any Governmental
Authority succeeding to the functions thereof.
"Issue" means, with respect to any Letter of Credit, either to
issue, or to extend the expiry of, or to renew, or to increase the amount of,
such Letter of Credit, and the terms "Issued" and "Issuance" shall have
corresponding meanings.
"Issuing Banks" means First Chicago and each other Lender (or
Affiliate of a Lender) selected by the Company and reasonably acceptable to
the Administrative Agent who has agreed to become an Issuing Bank for the
purpose of issuing Letters of Credit pursuant to Section 2.04 and, solely with
respect to Letters of Credit issued by Star Bank, N.A. prior to the Effective
Date, Star Bank, N.A. (it being understood and agreed that Star Bank, N.A.
shall cease to be a party to this Agreement after all of such Letters of
Credit have either terminated or expired).
"Lazard Agreement" means that certain engagement letter dated
as of March 12, 1998 between the Company and Lazard Freres & Co. LLC, as the
same may be amended, supplemented or otherwise modified from time to time.
"Leases" means those leases, tenancies or occupancies of Real
Property entered into by the Company or one of its Subsidiaries, as tenant,
sublessor or sublessee either directly or as the successor in interest to the
Company or any of the Domestic Subsidiaries.
"Lender" means, as of the Effective Date, each institution
which is a signatory hereto and identified as such and, at any other given
time, each institution which is a party hereto as a Lender, whether as a
signatory hereto or pursuant to an Assignment and Acceptance.
"Letter Agreement" means, collectively, (i) the fee letter
dated November 10, 1998 from First Chicago and accepted and agreed to by the
Company on November 10, 1998 and (ii) the fee letter dated October 30, 1998
from the Syndication Agent and the Arranger and accepted and agreed to by the
Company on October 30, 1998.
"Letter of Credit" means any Commercial Letter of Credit or
Standby Letter of Credit.
"Letter of Credit Availability" means, at any particular time,
the amount by which the Letter of Credit Sublimit exceeds the Letter of Credit
Obligations outstanding at such time.
"Letter of Credit Fee" is defined in Section 4.03(a).
"Letter of Credit Obligations" means, at any particular time,
the sum of (i) all outstanding Reimbursement Obligations, plus (ii) the
aggregate undrawn face amount of all outstanding Letters of Credit, plus
(iii) the aggregate face amount of all Letters of Credit requested by the
Borrowers but not yet issued (unless the request for an unissued Letter of
Credit has been denied pursuant to Section 2.04(c)(i)). For purposes of
determining the amount of Letter of Credit Obligations (or any component
thereof) in respect of any Letter of Credit that is denominated in an
Alternative Currency, such amount shall equal the Dollar Equivalent of the
amount of such Alternative Currency at the time of determination thereof.
"Letter of Credit Reimbursement Agreement" means, with respect
to a Letter of Credit, such form of application therefor and form of
reimbursement agreement therefor (whether in a single or several documents,
taken together) as the Issuing Bank from which the Letter of Credit is
requested may employ in the ordinary course of business for its own account,
with such modifications thereto as may be agreed upon by the Issuing Bank and
the Borrower requesting such Letter of Credit and as are not materially
adverse (in the judgment of the Issuing Bank) to the interests of the Lenders;
provided, however, in the event of any conflict between the terms hereof and
of any Letter of Credit Reimbursement Agreement, the terms hereof shall
control.
"Letter of Credit Sublimit" means Fifty Million Dollars
($50,000,000).
"Leverage Ratio" means, for any period, the ratio of Funded
Debt of the Company and its Subsidiaries on a consolidated basis as of the end
of such period to EBITDA of the Company and its Subsidiaries for such period.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses and damages with respect to or arising out of any of
the following: personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton injury,
damage or threat to the environment or public health or welfare, costs and
expenses (including, without limitation, attorney, expert and consulting fees
and costs of investigation, feasibility or Remedial Action studies), fines,
penalties and monetary sanctions, voluntary disclosures made to, or
settlements with, the United States Government, direct or indirect, known or
unknown, absolute or contingent, past, present or future, including interest,
if any, thereon.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, conditional sale agreement, security interest,
encumbrance, lien (statutory or other), priority or other security agreement
(including, without limitation, any negative pledge arrangement outside of the
ordinary course of business and any agreement to provide equal and ratable
security) of any kind or nature whatsoever in respect of any Property of a
Person intended to assure payment of any Indebtedness, obligation or other
liability, whether granted voluntarily or imposed by law, and includes the
interest of a lessor under a Capital Lease or under any financing lease having
substantially the same economic effect as any of the foregoing and the filing
of any financing statement or similar notice (other than a financing statement
filed by a "true" lessor pursuant to Section 9408 of the Uniform Commercial
Code), naming the lessee of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Loan Account" is defined in Section 2.05(b).
"Loan Documents" means this Agreement, the Notes, the Letter
Agreement, the Letter of Credit Reimbursement Agreements, the Holdco Security
Agreement, the Holdco Pledge Agreement, the Holdco Guaranty, the Company
Guaranty, the Company Pledge Agreement, the Company Security Agreement, the
Subsidiary Guaranty, each Subsidiary Security Agreement, the Signal Pledge
Agreement, the Contribution Agreement, the Patent Security Agreements, the
Trademark Security Agreements, the Mortgages, the documents executed or
delivered pursuant to Section 5.01(a) of the Existing Credit Agreement and the
Credit Agreement amended thereby and Section 5.01(a) of this Agreement by
Holdco, the Borrowers, any Subsidiary Guarantor or any other Subsidiary of the
Company, any Interest Rate Contracts or Currency Agreements to which any
Lender or any Affiliate of a Lender is a party, and all other instruments,
agreements and written Contractual Obligations between Holdco, the Company or
any Subsidiary of the Company, on the one hand, and any of the Administrative
Agent, either CoAgent, the Lenders or the Issuing Banks, on the other hand, in
each case delivered to either the Administrative Agent, a CoAgent, such Lender
or such Issuing Bank pursuant to or in connection with this Agreement or the
Revolving Credit Commitments (it being understood that Loan Documents do not
include agreements relating to the opening and maintenance of bank accounts
with financial institutions that are also Lenders hereunder entered into by
the Company or any of the Company's Subsidiaries in the ordinary course of
business).
"Loans" means all the Term Loans, the Revolving Loans, the
Swing Loans and all Base Rate Loans and Eurocurrency Rate Loans.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Material Adverse Effect" means a material adverse effect upon
(i) the business, condition (financial or otherwise), operations, performance,
Property or prospects of the Company and its Subsidiaries taken as a whole,
(ii) the ability of Holdco, the Borrowers and the Subsidiary Guarantors to
perform their obligations under the Loan Documents or (iii) the rights and
remedies of the Lenders, the Issuing Banks or the Administrative Agent under
the Loan Documents.
"Maximum Revolving Credit Amount" means, at any particular
time, an amount equal to the Revolving Credit Commitments, less the amount of
the Non-Facility Letter of Credit Reserve in effect at such time and less the
amount of the Decision Reserve in effect at such time.
"Maximum NonGuarantor Subsidiary Investment Amount" means, at
any time (without duplication) an amount equal to (i) the sum of (A) the
amount of all cash Investments of the Company or any Subsidiary Guarantor, or
which the Company or any Subsidiary Guarantor is under a Contractual
Obligation to make, since the Effective Date in, (B) the aggregate outstanding
amount of all Accommodation Obligations (including, without limitation,
Letters of Credit and Non-Facility Letters of Credit but excluding Permitted
Existing Accommodation Obligations) of the Company or any Subsidiary Guarantor
at such time in respect of obligations of, and (C) the Fair Market Value of
all Property (other than cash) of the Company or any Subsidiary Guarantor
contributed, sold or otherwise transferred since the Effective Date (other
than the sale of Inventory made in the ordinary course of business on
commercially reasonable terms (but in no event greater than 60 day terms) and
on an arms length basis) to, any Non-Guarantor Domestic Subsidiary, Permitted
Joint Venture or Foreign Subsidiary minus (ii) the sum of (A) any cash
dividends, other cash distributions or cash repayments of Indebtedness owing
to the Company or any Subsidiary Guarantor (but not intercompany loans to the
Company or any Subsidiary Guarantor) received by the Company or any Subsidiary
Guarantor since the Effective Date (x) from any Non-Guarantor Domestic
Subsidiary, Permitted Joint Venture or Foreign Subsidiary or (y) in respect of
any Permitted Existing Investment (other than the Company's Investment in the
Subsidiary Guarantors), and (B) cash proceeds of asset sales received by the
Company in respect of the Capital Stock of or Property (other than cash)
transferred to any such Non-Guarantor Domestic Subsidiary, Permitted Joint
Venture or Foreign Subsidiary since the Effective Date.
"Merger Agreement" means the MergerSub Merger Agreement.
"Merger Documents" means the Merger Agreement, each
certificate of merger executed in connection with the Merger Agreement, the
Holdco Discount Note Indenture, the Holdco Discount Notes, the agreements or
certificates of designation evidencing or governing the terms of the Holdco
Securities (other than the Holdco Discount Notes) issued on August 17, 1998
(or exchangeable for Holdco Securities issued on August 17, 1998), the
Subscription Agreement, certain warrants for the purchase of MergerSub common
stock to acquire Holdco common stock issued in connection with the issuance by
Holdco of the Holdco Securities on August 17, 1998, the Warrant Registration
Rights Agreement, dated as of August 17, 1998, between Holdco and National
City Bank, as warrant agent, the Voting Agreement, the Lazard Agreement, the
DLJ Commitment Letters, the Registration Rights Agreement, the amendment or
other agreements entered into in respect of the Company's Value Appreciation
Agreement, amendments to management incentive plans or employee compensation
plans, and all other documents entered into or filed by Holdco, the Company
and any of the Company's Subsidiaries in connection with the transactions
contemplated in the Merger Agreement.
"Mergers" means, collectively, the Reorganization Merger and
the MergerSub Merger.
"MergerSub" means Silkworm Acquisition Corporation, a Delaware
corporation, the outstanding Capital Stock of which is held by the Investors.
"MergerSub Merger" means the merger of MergerSub with and into
Holdco, with Holdco being the surviving corporation, pursuant to the terms of
the Merger Agreement.
"MergerSub Merger Agreement" means the Agreement and Plan of
Merger dated as of March 24, 1998 among the Company, Holdco and MergerSub, as
amended by Amendment No. 1 dated as of June 8, 1998 and Amendment No. 2 dated
as of August 12, 1998, as the same may be further amended, supplemented or
otherwise modified from time to time.
"Mortgages" means the mortgages, deeds of trust, leasehold
mortgages or other such documents executed by the Company and certain
Subsidiary Guarantors in favor of the Administrative Agent relating to such
Person's Real Property, as amended on the Effective Date, and as the same may
be further amended, supplemented or otherwise modified from time to time.
"Multicurrency Lender" means each Revolving Credit Lender that
is not a Non-Participating Multicurrency Lender.
"Multicurrency Loan" means a Revolving Loan made in an
Alternative Currency.
"Multicurrency Pro Rata Share" is defined in Section
2.02(c)(iv).
"Multicurrency Sublimit" means, with respect to Revolving
Credit Obligations denominated in an Alternative Currency, a maximum aggregate
outstanding amount of such Revolving Credit Obligations, the Dollar Equivalent
of which shall not exceed $40,000,000.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is, or within the immediately preceding
six (6) years was, contributed to by either the Company or any ERISA Affiliate.
"NAIC" means the National Association of Insurance
Commissioners.
"Net Cash Proceeds" means (i) proceeds received by Holdco, any
Borrower or any of the Company's Subsidiaries in cash or Cash Equivalents from
the sale (including, without limitation, any Sale and Leaseback Transaction),
assignment or other disposition of any Property of Holdco, such Borrower or
any such Subsidiary, other than sales, assignments and other dispositions
permitted under clauses (i), (iii), (iv), (v) and (vi) of Section 9.02, net of
(A) the cash costs and expenses of sale, assignment or other disposition and
(B) taxes paid or payable as a result thereof; provided that, at the request
of the Administrative Agent, evidence of each of (A) and (B) are provided to
the Administrative Agent; (ii) proceeds of insurance on account of the loss of
or damage to any such Property, and payments of compensation for any such
Property taken by condemnation or eminent domain, to the extent such proceeds
or payments are required pursuant to Section 8.07 to be applied to prepay the
Loans, and (iii) proceeds received after August 17, 1998 by Holdco, any
Borrower or any of the Company's Subsidiaries in cash or Cash Equivalents from
(A) the issuance of any Capital Stock by Holdco, such Borrower or any such
Subsidiary (other than (1) any such issuance occurring in the ordinary course
of business to any past or present member of the management or board of
directors of Holdco, such Borrower or such Subsidiary in connection with such
Person's employment or service with Holdco, such Borrower or such Subsidiary,
(2) any such issuance occurring in connection with an Investment made by the
Company or any such Subsidiary in any Subsidiary of the Company, (3) any such
issuance described in Section 9.06(ii) or made in connection with the
Recapitalization Transactions, (4) any such issuance made to the Investors
(other than pursuant to a public offering) or (5) any such issuance (other
than pursuant to a public offering) made to existing shareholders of Holdco
(other than the Investors), but only to the extent such proceeds arising
therefrom do not exceed $5,000,000 in the aggregate since the Effective Date),
or any other additions to the equity of Holdco or the Company (other than
retained earnings) or any contributions to capital of Holdco or the Company
(other than any such additions to equity or contributions to capital made by
the Investors (other than pursuant to a public offering)) or (B) issuance of
any Indebtedness by Holdco, such Borrower or any Domestic Subsidiary (except
for Indebtedness of Holdco in respect of the Holdco Securities, such
Indebtedness or Accommodation Obligations permitted under Sections 9.01 and
9.05 and any such Indebtedness incurred in connection with Currency Agreements
or Interest Rate Contracts to the extent such Borrower is permitted to enter
into such contracts pursuant to the terms hereof), in each case net of
reasonable costs incurred in connection with such transaction; provided that,
upon the request of the Administrative Agent, evidence of such costs is
provided to the Administrative Agent; provided, however, Net Cash Proceeds
received by any Foreign Subsidiary shall be reduced by (i) that portion of
such proceeds which such Foreign Subsidiary is not permitted to dividend or
lend to a Borrower (for the purpose of making any mandatory prepayment
pursuant to Section 3.01(b)) pursuant to any applicable Requirement of Law of
the jurisdiction in which such Foreign Subsidiary is organized and (ii) an
amount determined in good faith by the Company which would otherwise result in
a loss of greater than 20% of such Net Cash Proceeds as a result of
unfavorable tax or foreign exchange treatment applicable to such Subsidiary,
provided that, in either case, no such reduction shall apply to any Foreign
Borrower to the extent it has Loans outstanding that can be repaid directly
with such Net Cash Proceeds.
"1998 Subordinated Notes" means the 12% Senior Subordinated
Notes Due 2007 in an aggregate outstanding principal amount not to exceed
$120,000,000 issued by the Company and governed by the terms of the 1998
Subordinated Note Indenture.
"1998 Subordinated Note Indenture" means the Indenture, dated
as of November 9, 1998, entered into between the Company and Star Bank, N.A.,
as trustee, as the same may be amended, supplemented or otherwise modified
from time to time.
"NonFacility Letter of Credit" means any letter of credit
issued on an unsecured basis from a financial institution other than any
Issuing Bank for the account of a Borrower.
"NonFacility Letter of Credit Reserve" means a reserve
established by notice of the Company pursuant to Section 9.01(iii) against
Revolving Credit Availability in an amount equal to the aggregate face amount
of all outstanding NonFacility Letters of Credit issued in excess of those
NonFacility Letters of Credit permitted pursuant to Section 9.01(xiii).
"NonGuarantor Domestic Subsidiary" means any Domestic
Subsidiary (other than any Subsidiary Guarantor).
"NonParticipating Multicurrency Lender" means the Lenders
party to this Agreement on the Effective Date identified on Schedule 1.01 as
"Non-Participating Multicurrency Lenders" or any other Lender becoming a party
to this Agreement after the Effective Date whose request for such designation
is consented to by the Company and the Administrative Agent.
"Non Pro Rata Loan" is defined in Section 3.02(b)(v).
"Note" is defined in Section 2.05(a).
"Notice of Borrowing" means a notice substantially in the form
of Exhibit B.
"Notice of Continuation/Conversion" means a notice
substantially in the form of Exhibit C.
"NPL" is defined in Section 6.01(o).
"Obligations" means, in each instance arising hereunder, under
the Notes or under any other Loan Document, all Loans, advances, debts,
liabilities, obligations, covenants and duties owing by any Borrower to the
Administrative Agent, either CoAgent, any Lender, any Issuing Bank, any
Affiliate of the Administrative Agent, either CoAgent, any Lender or any
Issuing Bank, or any Person entitled to indemnification pursuant to Section
13.03, of any kind or nature, present or future, whether or not evidenced by
any note, guaranty or other instrument, whether or not for the payment of
money, whether arising under or in connection with an Interest Rate Contract
with any Lender or any Affiliate of a Lender (to the extent otherwise permitted
hereunder), or by reason of an extension of credit, opening or amendment of a
Letter of Credit or payment of any draft drawn thereunder, loan, guaranty,
indemnification or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired. The term includes,
without limitation, all interest, charges, expenses, fees, reasonable
attorneys' fees and disbursements and any other sum chargeable to any Borrower
hereunder or under any other Loan Document.
"Officer's Certificate" means, as to a corporation, a
certificate executed on behalf of such corporation by an officer or director
of such corporation.
"Operating Lease" means, as applied to any Person, any lease
of any Property (whether real, personal or mixed) by that Person as lessee
which is not a Capital Lease.
"Patent Security Agreements" means the Patent Security
Agreements, duly executed and delivered to the Administrative Agent by the
Company and each of ▇▇▇▇▇▇ Publishing Company, Signal, Signal Caribe, Inc.,
▇▇▇▇▇▇▇ Connector Systems, Inc., ▇▇▇▇▇▇▇ Stamping Corporation, Steel Parts
Corporation and Great Lake, Inc., each dated as of November 21, 1994 (or, in
the case of Great Lake, Inc., July 10, 1997), as amended through the Effective
Date and as the same may be further amended, supplemented or otherwise modified
from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any
Person succeeding to the functions thereof.
"Permits" means any permit, approval, authorization license,
variance, or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Acquisition" means any acquisition of all or
substantially all of the Capital Stock of any Person or of all or
substantially all of the assets or operations of any Person (or division or
operating unit of any Person) by the Company or any Subsidiary, provided that:
() such acquisition is made at a time when, after giving
effect to such acquisition and the related financing thereof, (a) no
Default or Event of Default exists or would occur based upon a pro
forma historical calculation (as certified in an Officer's Certificate
delivered pursuant to Section 8.17) for the most recent twelve (12)
month period of the covenants set forth in Sections 10.02 (Minimum
Fixed Charge Coverage Ratio), 10.03 (Minimum Interest Coverage Ratio)
and 10.04 (Maximum Leverage Ratio) performed in accordance with GAAP
giving effect to the EBITDA of the acquired operations and any higher
levels of Indebtedness associated with the acquired operations,
together with interest thereon as though accrued for such twelve (12)
month period, and (b) after giving effect to such acquisition, the
Borrower or such Subsidiary Guarantor would remain Solvent;
() the acquired Person or post-merger Person, if the
acquisition is of Capital Stock, (a) to the extent required under
Sections 8.12 and 8.13 hereof, provides to the Administrative Agent a
Lien upon all of the Property of such acquired Person (except for Real
Property with respect to which no notice is given pursuant to Section
8.12) and otherwise complies with the requirements of Sections 8.12
and 8.13 and (b) executes and delivers such documentation as the
Administrative Agent deems appropriate with respect to intercompany
borrowings from the Company;
() if the acquisition is of Capital Stock, to the extent
required under Section 8.13 hereof, the Company or Subsidiary
Guarantor acquiring such Capital Stock provides the Administrative
Agent a Lien upon such Capital Stock pursuant to a pledge agreement in
form and substance satisfactory to the Administrative Agent;
() to the extent required under Section 8.12 and Section 8.13
hereof, the acquired assets are subject to Liens in favor of the
Administrative Agent for the benefit of the Administrative Agent, the
CoAgents, the Issuing Banks and the Lenders and are free and clear of
all other Liens except as permitted under Section 9.03;
() the Company delivers written notice to the Administrative
Agent and the Lenders of its or its Subsidiary's intention to make
such acquisition no less than five (5) Business Days prior to the
proposed closing date for such acquisition that sets forth, among
other things, information regarding liabilities and obligations with
respect to environmental matters to be incurred by the Company or any
Subsidiary of the Company (including, without limitation, the acquired
Person in the event of an acquisition of Capital Stock) as a result of
such acquisition, any indemnities afforded under the terms of such
acquisition and the scope and results of any environmental review
undertaken by the Company in connection therewith;
() the sum for any Permitted Acquisition of (a) the cash
purchase price thereof, including any deferred purchase price, plus
(b) the reasonably estimated transaction costs associated with such
acquisition, plus (c) the amount of Indebtedness for borrowed money
assumed (directly or indirectly) as a result thereof, plus the Fair
Market Value of that portion of the purchase price payable in common
equity of Holdco shall not exceed $50,000,000 for any single Permitted
Acquisition and shall not exceed $100,000,000 in the aggregate for all
Permitted Acquisitions consummated after the Effective Date;
() on the date of the closing of the Permitted Acquisition and
after giving effect thereto and to any Revolving Loans made to finance
such Permitted Acquisition, (i) no Default or Event of Default shall
have occurred and be continuing and (ii) all representations and
warranties under the Loan Documents shall be true and correct in all
material respects as though made on and as of such date, except to the
extent that any such representation or warranty expressly relates to
an earlier date;
() the consideration for the Permitted Acquisition shall
have been paid only (i) in cash, (ii) in common equity of Holdco or
(iii) in deferred installment payments provided that any indebtedness
incurred in connection therewith is permitted pursuant to Section
9.01(xv); and
() after giving effect to the acquisition, such acquired
Person shall either (i) become a Subsidiary of the Company or of any
Subsidiary Guarantor or (ii) be merged with and into the Company or
any Subsidiary Guarantor; provided that if such acquired Person is a
non-U.S. entity, such acquired Person may become a Foreign Subsidiary.
"Permitted Existing Accommodation Obligations" means those
Accommodation Obligations of the Company and its Subsidiaries identified as
such on Schedule 1.01.1 and shall exclude Accommodation Obligations otherwise
permitted by Section 9.05 of this Agreement.
"Permitted Existing Indebtedness" means the Indebtedness of
the Company and its Subsidiaries identified as such on Schedule 1.01.2 and
shall exclude Indebtedness otherwise permitted by Section 9.01 of this
Agreement.
"Permitted Existing Investments" means those Investments of
the Company and the Domestic Subsidiaries on the Effective Date identified as
such on Schedule 1.01.3 and shall exclude Investments otherwise permitted by
Section 9.04 of this Agreement.
"Permitted Existing Liens" means the Liens on Property of the
Company or any of its Subsidiaries identified as such on Schedule 1.01.4 and
shall exclude Liens otherwise permitted by Section 9.03 of this Agreement.
"Permitted Joint Venture" means (i) Thermalex and (ii) any
other joint venture entered into by the Company or any Subsidiary Guarantor
with any other Person in the same or similar line of the Company's or such
Subsidiary Guarantor's business, which joint venture may be in the form of a
minority Investment in a partnership or corporation, a NonGuarantor Domestic
Subsidiary or an Foreign Subsidiary; provided, however, that the Company or
such Subsidiary Guarantor shall not, pursuant to such joint venture, be under
a Contractual Obligation to make cash contributions or incur Accommodation
Obligations after the initial formation thereof other than in fixed Dollar
amounts.
"Person" means any natural person, corporation, limited
partnership, limited liability company, general partnership, joint stock
company, joint venture, association, company, trust, bank, trust company, land
trust, business trust or other organization, whether or not a legal entity,
and any Governmental Authority.
"Plan" means an employee pension benefit plan defined in
Section 3(2) of ERISA in respect of which the Company or any ERISA Affiliate
is, or within the immediately preceding three (3) years was, an "employer" as
defined in Section 3(5) of ERISA.
"Plan of Reorganization" means the Second Amended Plan of
Reorganization Jointly Proposed by the Company and certain of its Subsidiaries
and the Official Joint Committee of Unsecured Creditors as confirmed pursuant
to an order entered on November 24, 1992 by the bankruptcy court having
jurisdiction over the Company.
"Pledge and Assignment Agreement" means the Pledge and
Assignment Agreement dated as of March 3, 1997 between the Company and the
Administrative Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"Process Agent" is defined in Section 13.17.
"Property" means, with respect to any Person, any Real
Property or personal property, plant, building, facility, structure,
underground storage tank or unit, Equipment, Inventory, General Intangible,
Receivable, or other asset owned, leased or operated by such Person (including
any surface water thereon or adjacent thereto, and soil and groundwater
thereunder).
"Proposed Acquisitions" means the two proposed acquisitions
identified on page 8 of the Confidential Information Memorandum, dated
October 1998, distributed to the Lenders.
"Pro Rata Share" means, with respect to any Lender, (a) with
respect to Revolving Loans and Letters of Credit, the percentage obtained by
dividing (i) such Lender's Revolving Credit Commitment at such time by
(ii) the aggregate amount of all Revolving Credit Commitments at such time;
provided, however, if all of the Revolving Credit Commitments are terminated
pursuant to the terms hereof, then "Pro Rata Share" means, with respect to
Revolving Loans and Letters of Credit, the percentage obtained by dividing
(x) the sum of the aggregate amount of such Lender's Revolving Credit
Obligations by (y) the aggregate amount of all Revolving Credit Obligations,
and (b) with respect to Term Loans, the percentage obtained by dividing
(i) such Lender's Term Loan Commitment (or after the Effective Date, Term
Loans) by (ii) the aggregate amount of all Term Loan Commitments (or after the
Effective Date, Term Loans).
"Protective Advance" is defined in Section 12.09.
"Qualifying Lender" means, in respect of any Lender which is
or is entitled to receive payments under this Agreement from any Foreign
Borrower, any of the following:
(i) any institution which is a bank within the meaning given
by Section 840A of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇,
which is beneficially entitled to interest payable under this
Agreement and subject to United Kingdom corporation tax in
respect of that interest;
(ii) any Lender which is an assignee of a Lender falling
within clause (i) above and is beneficially entitled to the
interest payable hereunder and subject to United Kingdom
corporation tax thereon; and
(iii) any Lender which, pursuant to the terms of a double tax
treaty as in force at the time that Lender becomes party to this
Agreement, is entitled to exemption from taxation in the United
Kingdom, or in the jurisdiction of its Applicable Lending Office
if other than the United Kingdom, in respect of the interest
payable hereunder and which at the time of the relevant interest
payment has made all appropriate filings and declarations in
order to obtain the benefit of those terms.
"Real Property" means, with respect to any Person, all of such
Person's present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any improvements, buildings, structures and fixtures now or hereafter
located or erected thereon or attached thereto of every nature whatsoever (the
rights and interests described in clauses (i) and (ii) above being the
"Premises"), (iii) all easements, rights of way, gores of land or any lands
occupied by streets, ways, alleys, passages, sewer rights, water courses,
water rights and powers, and public places adjoining such land, and any other
interests in Property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be appurtenant thereto, (iv) all
hereditaments, gas, oil, minerals (with the right to extract, sever and remove
such gas, oil and minerals), and easements, of every nature whatsoever,
located in or on the Premises and (v) all other rights and privileges thereunto
belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the
rights and interests described in clauses (iii) and (iv) above.
"Recapitalization Transactions" means the transactions
contemplated in the Merger Documents and the Second Amendment to the Existing
Credit Agreement dated as of August 17, 1998.
"Receivables" means, with respect to any Person, all of such
Person's present and future (i) accounts, (ii) accounts receivable,
(iii) rights to payment for goods sold or leased or for services rendered
(except those evidenced by instruments or chattel paper), whether or not
earned by performance, (iv) all rights in any merchandise or goods which any
of the same may represent, and (v) all rights, title, security and guaranties
with respect to each of the foregoing, including, without limitation, any
right of stoppage in transit.
"Register" is defined in Section 13.01(c).
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of August 17, 1998 among Holdco, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation and the other parties named therein.
"Regulation A" means Regulation A of the Federal Reserve Board
as in effect from time to time.
"Regulation D" means Regulation D of the Federal Reserve Board
as in effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board
as in effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board
as in effect from time to time.
"Reimbursement Date" is defined in Section 2.04(d)(i)(A).
"Reimbursement Obligations" means, as to any Borrower, the
aggregate non-contingent reimbursement or repayment obligations of such
Borrower with respect to amounts drawn under Letters of Credit Issued for the
account of such Borrower.
"Related Obligations" is defined in Section 12.09(f).
"Release" means release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any Property, including
the movement of Contaminants through or in the air, soil, surface water,
groundwater or Property.
"Remedial Action" means actions required to (i) clean up,
remove, treat or in any other way respond to Contaminants in the indoor or
outdoor environment; (ii) prevent the Release or threat of Release or minimize
the further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"Reorganization Merger" means the merger of ReorgSub with and
into the Company, with the Company being the surviving corporation, pursuant
to the terms of the Merger Agreement.
"ReorgSub" means Insilco ReorgSub Company, a Delaware
corporation and wholly-owned Subsidiary of Holdco.
"Reportable Event" means any of the events described in
Section 4043 of ERISA other than the events described in Regulation Sections
2615.13, 2615.14, 2615.18 and 2615.19 promulgated by the PBGC.
"Requirements of Law" means, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its Property or to which such Person or any of its Property is
subject including, without limitation, the Securities Act, the Securities
Exchange Act, Regulations U and X, ERISA, the Fair Labor Standards Act and any
certificate of occupancy, zoning ordinance, building, or land use requirement
or Permit or labor or employment rule or regulation.
"Requisite Lenders" means, at any time, Lenders holding, in
the aggregate, at least fifty-one percent (51%) of the sum of (i) the then
aggregate principal amount of the Term Loans outstanding at such time and
(ii) the then aggregate amount of the Revolving Credit Commitments in effect
at such time; provided, however, that, in the event any Revolving Credit
Lender shall have failed to fund its Pro Rata Share of any Revolving Loan
requested by a Borrower which such Lender is obligated to fund under the terms
hereof and any such failure has not been cured, then for so long as such
failure continues, "Requisite Lenders" means Lenders (excluding Revolving
Credit Lenders whose failure to fund their respective Pro Rata Share of such
Loans have not been so cured) whose Aggregate Pro Rata Shares represent at
least fifty-one percent (51%) of the Aggregate Pro Rata Shares of such
Lenders; provided, further, however, that, in the event that the Commitments
have been terminated pursuant to the terms hereof, "Requisite Lenders" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose Aggregate Pro Rata Shares are at least fifty-one
percent (51%).
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of the Company or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
or in any junior class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of
Capital Stock of the Company or any of its Subsidiaries now or hereafter
outstanding, (iii) any payment made to redeem, purchase, repurchase or retire,
or to obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of Capital Stock of the Company or any
of its Subsidiaries now or hereafter outstanding and (iv) any payment or
prepayment of principal of, premium, if any, or interest, fees or other
charges on or with respect to, and any redemption, purchase, retirement,
defeasance, sinking fund or similar payment and any claim to rescission with
respect to, any Indebtedness expressly subordinated in writing to the
Obligations.
"Revolving Credit Availability" means, at any particular time,
the amount by which the Maximum Revolving Credit Amount exceeds the Revolving
Credit Obligations outstanding at such time.
"Revolving Credit Commitment" means, with respect to any
Lender, the obligation of such Lender to make Revolving Loans and to
participate in Letters of Credit and Swing Loans pursuant to the terms and
conditions hereof, which obligation shall not exceed the principal amount set
forth opposite the heading "Revolving Credit Commitment" on Schedule 1.01 or
the signature page of the Assignment and Acceptance by which it became a
Lender, as modified from time to time pursuant to the terms hereof or to give
effect to any applicable Assignment and Acceptance, and "Revolving Credit
Commitments" means the aggregate principal amount of the Revolving Credit
Commitments of all the Lenders, the maximum aggregate principal amount of
which shall not exceed $175,000,000, as reduced from time to time pursuant to
the terms hereof.
"Revolving Credit Lender" is defined in Section 2.02(a).
"Revolving Credit Notes" means notes evidencing each
Borrower's Obligation to repay the Revolving Loans made to it.
"Revolving Credit Obligations" means, at any particular time,
the sum of (i) the outstanding principal amount of the Swing Loans at such
time, plus (ii) the outstanding principal amount of the Revolving Loans at
such time, plus (iii) the Letter of Credit Obligations outstanding at such
time plus (iv) the aggregate principal amount of Protective Advances
outstanding at such time. For purposes of determining the amount of Revolving
Credit Obligations (or any component thereof) in respect of any Revolving Loan
that is denominated in an Alternative Currency, such amount shall equal the
Dollar Equivalent of the amount of such Alternative Currency at the time of
determination thereof.
"Revolving Credit Termination Date" means the earlier to occur
of (i) the date of termination of the Revolving Credit Commitments pursuant to
the terms hereof and (ii) July 8, 2003.
"Revolving Loan" is defined in Section 2.02(a).
"Sale and Leaseback Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property of such
Person is sold or transferred by such Person or a Subsidiary of such Person
and is thereafter leased back from the purchaser thereof by such Person or one
of its Subsidiaries.
"Securities" means any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or any
certificates of interest, shares, or participation in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing, but shall not include any evidence
of the Obligations.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
"Signal" means Signal Transformer Co., Inc., a Delaware
corporation and subsidiary of the Company.
"Signal Pledge Agreement" means the Amended and Restated
Signal Pledge Agreement, dated as of the Effective Date, duly executed and
delivered to the Administrative Agent by Signal, which Pledge Agreement amends
and restates Signal's obligations as a pledgor under the Signal Pledge
Agreement, dated as of November 21, 1994, as amended, to which it is a party,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Solvent", when used with respect to any Person, means that at
the time of determination:
(i) the sum of its Properties at a fair valuation is greater
than the sum of its liabilities (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its Properties is
greater than its probable liability on its existing debts as such debts
become absolute and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other
commitments) as they mature in the ordinary course of business; and
(iv) it is not engaged in a business or transaction and is not
about to engage in a business or transaction, for which its
Properties, including contractual lines of credit, and, with respect
to the Borrowers and the Subsidiary Guarantors, the ability of any
Borrower or any Subsidiary Guarantor to borrow money from the Company
or any Subsidiary of the Company, would constitute an unreasonably
small capital after giving due consideration to the prevailing
practice in the business in which it is engaged or about to engage.
The determination of whether a Person is Solvent shall take
into account all such Person's Properties and liabilities regardless of
whether, or the amount at which, any such Property or liability is included on
a balance sheet of such Person prepared in accordance with GAAP, including
Properties such as contingent contribution or subrogation rights, business
prospects, distribution channels and goodwill. The determination of the sum
of a Person's Properties at a fair valuation or the present fair saleable
value of a Person's Properties shall be made on a going concern basis unless,
at the time of such determination, the liquidation of the business in which
such Properties are used or useful is in process or is demonstrably imminent.
In computing the amount of contingent or unrealized Properties or contingent
or unliquidated liabilities at any time, such Properties and liabilities will
be computed at the amounts which, in light of all the facts and circumstances
existing at such time, represent the amount that reasonably can be expected to
become realized Properties or matured liabilities, as the case may be. In
computing the amount that would be required to pay a Person's probable
liability on its existing debts as they become absolute and matured,
reasonable valuation techniques, including a present value analysis, shall be
applied using such rates over such periods as are appropriate under the
circumstances, and it is understood that, in appropriate circumstances, the
present value of contingent liabilities may be zero.
"Standby Letter of Credit" means any letter of credit issued by
an Issuing Bank pursuant to Section 2.04 for the account of a Borrower, which
is not a Commercial Letter of Credit.
"Subordinated Notes" means the 10.25% Subordinated Notes due
2007 in an aggregate outstanding principal amount of $150,000,000 (less the
principal amount of such notes repurchased, repaid or defeased by the Company
pursuant to Section 9.06(v)) issued by the Company and governed by the terms
of the Subordinated Note Indenture.
"Subordinated Note Indenture" means the Indenture dated as of
August 12, 1997 entered into between the Company and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified from
time to time.
"Subscription Agreement" means the Subscription Agreement dated
as of August 17, 1998 between Holdco and the investors party thereto, as the
same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary" of a Person means 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 or controlled
by such Person, one or more of the other subsidiaries of such Person or any
combination thereof; provided, however, for purposes of this definition the
term "Subsidiary" shall not include Thermalex.
"Subsidiary Guarantor" means each Domestic Subsidiary of the
Company party to the Subsidiary Guaranty (which shall include any Domestic
Subsidiary of the Company (other than Thermal Components, Inc.) with net
assets with an aggregate book value in excess of $5,000,000).
"Subsidiary Guaranty" means the Amended and Restated Subsidiary
Guaranty, dated as of the Effective Date, duly executed and delivered to the
Administrative Agent by each Subsidiary Guarantor, which Guaranty amends and
restates each Subsidiary Guarantor's obligations as a guarantor under the
Subsidiary Guaranty, dated as of November 21, 1994, as amended, to which each
is a party, as the same may be amended, supplemented or otherwise modified
from time to time.
"Subsidiary Security Agreements" means each Amended and
Restated Subsidiary Security Agreement, dated as of the Effective Date, duly
executed and delivered to the Administrative Agent by each Subsidiary
Guarantor, each of which Security Agreements amends and restates each
Subsidiary Guarantor's obligations as a grantor under its respective Subsidiary
Security Agreement, dated as of November 21, 1994 (or, in the case of Great
Lake, Inc., January 31, 1996, and, in the case of Thermal Components Division,
Inc., July 8, 1996), as amended, to which such Subsidiary Guarantor is a
party, as the same may be amended, supplemented or otherwise modified from
time to time.
"Survey" means a survey of the Real Property owned by the
Company or a Subsidiary Guarantor, dated no earlier than ninety (90) days
prior to the date of the delivery of mortgage or deed of trust on such
property in favor of the Administrative Agent pursuant to the terms hereof and
reasonably acceptable to the Administrative Agent.
"Swing Loan" is defined in Section 2.03(a).
"Swing Loan Bank" means First Chicago, in its individual
capacity or, in the event First Chicago is not the Administrative Agent, the
Administrative Agent (or any Affiliate of the Administrative Agent designated
by the Administrative Agent), in its individual capacity.
"Swing Loan Note" means one or more notes evidencing the
Company's Obligation to repay the Swing Loans.
"Syndication Agent" is defined in the preamble to this
Agreement.
"Taxes" is defined in Section 3.03(a).
"Termination Event" means (i) a Reportable Event with respect
to any Benefit Plan; (ii) the withdrawal of the Company or any ERISA Affiliate
from a Benefit Plan during a plan year in which the Company or such ERISA
Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA or the cessation of operations which results in the termination of
employment of 20% of Benefit Plan participants who are employees of the
Company or any ERISA Affiliate; (iii) the imposition of an obligation on the
Company or any ERISA Affiliate under Section 4041 of ERISA to provide affected
parties written notice of intent to terminate a Benefit Plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the institution by the
PBGC or any similar foreign Governmental Authority of proceedings to terminate
a Benefit Plan or a Foreign Pension Plan; (v) any event or condition which
could reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Benefit Plan; (vi) a foreign Governmental Authority shall appoint or institute
proceedings to appoint a trustee to administer any Foreign Pension Plan; or
(vii) the partial or complete withdrawal of the Company or any ERISA Affiliate
from a Multiemployer Plan or a Foreign Pension Plan.
"Term Loans" is defined in Section 2.01(a).
"Term Loan Commitment" means, with respect to any Lender, the
obligation of such Lender to make Term Loans pursuant to the terms and
conditions hereof, and which shall not exceed the principal amount set forth
opposite such Lender's name under the heading "Term Loan Commitment" on
Schedule 1.01 or the signature page of the Assignment and Acceptance by which
it became a Lender, as modified from time to time pursuant to the terms hereof
or to give effect to any applicable Assignment and Acceptance, and "Term Loan
Commitments" means the aggregate principal amount of the Term Loan Commitments
of all the Lenders, the maximum aggregate principal amount of which shall not
exceed $125,000,000, as reduced from time to time pursuant to the terms hereof.
"Term Loan Lender" is defined in Section 2.01(a).
"Term Loan Maturity Date" means the seventh anniversary of the
Effective Date.
"Term Loan Notes" means notes evidencing the Company's
obligation to repay the Term Loans.
"Thermalex" means Thermalex, Inc., an Alabama corporation.
"Title Company" means Commonwealth Land Title Insurance Company.
"Title Policy" means an ALTA Mortgagee Policy (or equivalent)
of title insurance with extended coverage over the standard or general
exceptions and such endorsements reasonably required by the Administrative
Agent issued by the Title Company covering each parcel of Real Property of the
Company or any Subsidiary Guarantor included in the Collateral or required to
be so included pursuant to Section 8.12, showing title vested in either the
Company or such Subsidiary Guarantor subject only to the Liens set forth in
Section 9.03 herein, which Title Policy shall show the Administrative Agent as
the insured and an insurance amount equal to the lesser of the Commitments or
the book value of the Real Property covered by such Title Policy.
"Trademark Security Agreements" means the Trademark Security
Agreements, duly executed and delivered to the Administrative Agent by the
Company and each of ▇▇▇▇▇▇ Publishing Company, Signal, Signal Caribe, Inc.,
▇▇▇▇▇▇▇ Connector Systems, Inc., ▇▇▇▇▇▇▇ Stamping Corporation, Steel Parts
Corporation and Great Lake, Inc., each dated as of November 21, 1994 (or, in
the case of Great Lake, Inc., July 10, 1997), as amended through the Effective
Date and as the same may be amended, supplemented or otherwise modified from
time to time.
"Type" means, with respect to any Loan, its nature as a
Eurocurrency Rate Loan or a Base Rate Loan.
"Uniform Commercial Code" means the Uniform Commercial Code as
enacted in the State of New York, as it may be amended from time to time.
"Unused Commitment Fee" is defined in Section 4.03(b).
"Unused Commitment Fee Rate" means at all times during the
applicable periods set forth below, the applicable rate per annum set forth
below under the heading "Unused Commitment Fee Rate":
Unused
Leverage Ratio Commitment Fee
-------------- --------------
greater than or equal to 5.00 to 1 0.625%
greater than or equal to 4.00 to 1
0.500%
less than 5.00 to 1
greater than or equal to 3.00 to 1
0.375%
less than 4.00 to 1
less than 3.00 to 1 0.250%
The Leverage Ratio used to compute the Unused Commitment Fee Rate following
the Effective Date shall be the Leverage Ratio set forth in the Compliance
Certificate most recently delivered by the Company to the Administrative Agent
pursuant to Section 7.01(d); changes in the Unused Commitment Fee Rate
resulting from a change in the Leverage Ratio shall become effective upon
delivery by the Company to the Administrative Agent of a new Compliance
Certificate pursuant to Section 7.01(d) and notice by the Company to the
Administrative Agent that a rate change is required. Notwithstanding anything
to the contrary set forth in this Agreement (including the then effective
Leverage Ratio), the Unused Commitment Fee Rate shall be 0.625% for the period
commencing on the Effective Date and ending on the delivery of a separate
Compliance Certificate in respect of the Company's fiscal month ending May 31,
1999. If the Company shall fail to deliver a Compliance Certificate within 50
days after the end of any fiscal month or quarter (or within 95 days, in the
case of the last fiscal quarter of any Fiscal Year) pursuant to Section
7.01(d), the Unused Commitment Fee Rate from and including the 51st (or 96th,
as the case may be) day after the end of such fiscal quarter to but not
including the date the Company delivers to the Administrative Agent a
Compliance Certificate shall conclusively equal the highest Unused Commitment
Fee Rate set forth above.
"Voting Agreement" means the Voting Agreement, dated as of
March 24, 1998, among MergerSub, the Company and Water Street Corporate
Recovery Fund I, L.P., as amended pursuant to an amendment dated as of June 8,
1998.
"Voting Stock" means, with respect to any Person, securities
with respect to any class or classes of Capital Stock of such Person entitling
the holders thereof ordinarily (and apart from rights arising under special
circumstances) to vote in the election of members of the board of directors of
such Person.
"Wholly Owned" means, with respect to a Subsidiary of a Person,
a Subsidiary of such Person, all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall
at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person.
"Y2K Compliance" means the ability of a computer program to
(i) record, store, process, calculate, present and, where appropriate, insert
accurate dates and calculations for calendar dates falling on or after (and,
if applicable, spans of time including) January 1, 2000, (ii) record, store,
process, calculate and present any information and/or data dependent on or
relating to such dates with the same functionality, data integrity and
performance, as the software records, stores, processes, calculates and
presents calendar dates on or before December 31, 1999 and in such fashion as
to respond to two-digit date input in a way that eliminates all ambiguities as
to the century of concern, and treats the year 2000 as a leap-year and
correctly and accurately regards and processes data and information with
respect thereto, and (iii) lose no functionality with respect to the
introduction of records, including but not limited to back-up and archived
information and/or data, containing dates falling on or after January 1, 2000
and "Y2K Compliant" has the correlative meaning.
1.0. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding". Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days are expressly
prescribed. Any period determined hereunder by reference to a month or months
or year or years shall end on the day in the relevant calendar month in the
relevant year, if applicable, immediately preceding the date numerically
corresponding to the first day of such period, provided that if such period
commences on the last day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month during which such period
is to end), such period shall, unless otherwise expressly required by the
other provisions of this Agreement, end on the last day of the calendar month.
1.0. Accounting Terms. Subject to Section 13.04, for purposes
of this Agreement, all accounting terms not otherwise defined herein shall
have the meanings assigned to them in conformity with GAAP. For purposes of
computing the Fixed Charge Coverage Ratio, Interest Coverage Ratio and
Leverage Ratio (and any financial calculations required to be made or included
within such ratios) as of the end of any fiscal quarter of any Fiscal Year, all
components of such ratios (other than Capital Expenditures) for the
twelve-month period ending at the end of such fiscal quarter shall include,
without duplication, such components of such ratios attributable to any
business or assets that have been acquired or disposed of by the Company or
any of its Subsidiaries (including through Permitted Acquisitions) after the
first day of such twelve-month period and prior to the end of such period, as
determined in good faith by the Company on a pro forma basis for such period
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 or disposition occurred on such
day).
1.0. Other Definitional Provisions. References to the
"preamble", "Articles", "Sections", "subsections", "Schedules" and "Exhibits"
shall be to the preamble, Articles, Sections, subsections, Schedules and
Exhibits, respectively, of this Agreement unless otherwise specifically
provided. The words "hereby", "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
1.0. Other Terms. All other terms contained herein shall,
unless the context indicates otherwise, have the meanings assigned to such
terms by the Uniform Commercial Code to the extent the same are defined
therein.
ARTICLE
AMOUNTS AND TERMS OF LOANS
2.0. The Term Loans. () Amount of Term Loans. Subject to
the terms and conditions set forth herein, each Lender with a Term Loan
Commitment ("Term Loan Lender") hereby severally and not jointly agrees to
make on the Effective Date, a Term Loan, in Dollars (and not in any
Alternative Currency), to the Company in an amount equal to such Lender's Term
Loan Commitment (each individually, a "Term Loan" and, collectively, the "Term
Loans"). All Term Loans shall be made by the Term Loan Lenders on the
Effective Date simultaneously and proportionately to their respective Pro Rata
Shares thereof.
() Notice of Borrowing in respect of Term Loans. The Company
shall deliver to the Administrative Agent a Notice of Borrowing, signed by it,
one Business Day prior to the Effective Date. Such Notice of Borrowing shall
specify (i) the aggregate amount of the Term Loans and (ii) instructions for
the disbursement of the proceeds of the Term Loans. The Term Loans shall
initially be Base Rate Loans and thereafter may be continued as Base Rate
Loans or converted into Eurocurrency Rate Loans in the manner provided in
Section 4.01(c) and subject to the conditions and limitations therein set
forth and set forth in Section 4.02. Any Notice of Borrowing given pursuant
to this Section 2.01(b) shall be irrevocable.
() Making of Term Loans. Promptly after receipt of the Notice
of Borrowing under Section 2.01(b) in respect of the Term Loans to be made on
the Effective Date, the Administrative Agent shall notify each Term Loan
Lender by telex or telecopy, or other similar form of transmission, of the
proposed Borrowing. Each Term Loan Lender shall deposit an amount equal to
its Pro Rata Share of the Term Loans with the Administrative Agent at its
office in Chicago, Illinois, in immediately available funds, on the Effective
Date specified in the Notice of Borrowing. Subject to the fulfillment of the
conditions precedent set forth in Section 5.01, the Administrative Agent shall
make the proceeds of such amounts received by it available to the Company at
the Administrative Agent's office in Chicago, Illinois on the Effective Date
and shall disburse such proceeds in accordance with the Company's disbursement
instructions set forth in such Notice of Borrowing. The failure of any Term
Loan Lender to deposit the amount described above with the Administrative
Agent on the Effective Date shall not relieve any other Lender of its
obligations hereunder to make its Term Loan on the Effective Date. No Term
Loan Lender shall be responsible for any failure by any other Lender to
perform its obligation to make any Term Loan hereunder nor shall the Term Loan
Commitment of any Term Loan Lender be increased or decreased as a result of
any such failure.
() Repayment of the Term Loans. Subject to the immediately
succeeding sentence, the Term Loans shall be repayable in twenty-eight (28)
consecutive quarterly installments due on the last day of each calendar
quarter beginning on March 31, 1999 with a final payment on the Term Loan
Maturity Date. Each of the first twenty-four installments of Term Loans shall
be in an amount equal to $312,500 and each of the last four installments of the
Term Loans shall be in an amount equal to $29,375,000; provided, however, the
last such installment due on the Term Loan Maturity Date shall be in an amount
equal to the then outstanding principal amount of the Term Loans.
In addition to the scheduled payments on the Term Loans, the
Company may make the voluntary prepayments described in Section 3.01(a)(i) and
shall make the mandatory prepayments prescribed in Section 3.01(b), for credit
against such scheduled payments on the Term Loans pursuant to Section
3.01(a)(i) or Section 3.01 (b)(vi), as applicable. Any amount paid in respect
of the Term Loans may not be reborrowed.
() Use of Proceeds of Term Loans. The proceeds of the Term
Loans shall be used (i) on the Effective Date to repay Revolving Loans then
outstanding under the Existing Credit Agreement, and (ii) from and after the
Effective Date, (A) to repurchase, redeem or defease Subordinated Notes to the
extent the purchase thereof is permitted under Section 9.06(v), (B) to pay the
purchase price of approximately $46,000,000 in connection with the Proposed
Acquisitions anticipated to be consummated within a short period of time after
the Effective Date (but only to the extent such acquisitions constitute
Permitted Acquisitions, transaction costs related thereto and transaction
costs under this Agreement), and (C) to fund working capital in the ordinary
course of business of the Company and its Subsidiaries and for other lawful
general corporate purposes not prohibited hereunder.
2.0. Revolving Credit Facility. () Subject to the terms and
conditions set forth herein, each Lender with a Revolving Credit Commitment
("Revolving Credit Lender") hereby severally and not jointly agrees to make
revolving loans, in Dollars or an Alternative Currency (each individually, a
"Revolving Loan" and, collectively, the "Revolving Loans") to the Borrowers
from time to time during the period from the Effective Date to the Business
Day next preceding the Revolving Credit Termination Date, in an amount not to
exceed at any time outstanding such Lender's Revolving Credit Commitment at
such time; provided, that (i) the aggregate amount of the Revolving Loans made
to the Borrowers by each Revolving Credit Lender on a Funding Date shall not
exceed the Dollar amount of such Lender's Pro Rata Share of the Revolving
Credit Availability on such Funding Date, (ii) the aggregate outstanding amount
of Multicurrency Loans shall not exceed at any time the Multicurrency Sublimit
less the outstanding amount of Letter of Credit Obligations denominated in
Alternative Currencies and (iii) the aggregate outstanding amount of Revolving
Credit Obligations owing by any Foreign Borrower shall not exceed at any time
such Foreign Borrower's Foreign Borrower Sublimit in effect at such time. All
Revolving Loans comprising the same Borrowing hereunder shall be made by such
Revolving Credit Lenders simultaneously and proportionately to their then
respective Revolving Credit Commitments. Subject to the provisions hereof
(including, without limitation, Sections 3.01(a) and 5.02), any Borrower may
repay any outstanding Revolving Loan on any day which is a Business Day and
any amounts so repaid may be reborrowed, up to the amount available under this
Section 2.02(a) at the time of such Borrowing, until the Business Day next
preceding the Revolving Credit Termination Date. Borrowings of Revolving Loans
denominated in Dollars shall be in an aggregate minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess of that amount. Borrowings of
Multicurrency Loans shall be Eurocurrency Loans denominated in a single
Alternative Currency in an aggregate minimum amount equal to an integral
multiple of 100,000 units in such Alternative Currency and (converted to the
Dollar Equivalent thereof) equal to or greater than $1,000,000. For the
purposes of determining compliance with this Section 2.02(a), the Dollar
Equivalent of a Multicurrency Loan in an Alternative Currency shall be
determined by First Chicago London upon receipt from the Company of the Notice
of Borrowing requesting such Multicurrency Loan, and such Dollar Equivalent
shall be recalculated on each date that it shall be necessary to determine the
unused portion of each Lender's Revolving Credit Commitment or any or all of
the Loans outstanding on such date. On the Effective Date (i) all Revolving
Loans outstanding on such date shall be repaid in full from proceeds of Term
Loans and/or new Revolving Loans made on such date, (ii) the Revolving Credit
Commitments shall be reduced from $200,000,000 to $175,000,000, (iii) that
portion of the Revolving Credit Commitments of the Existing Lenders that are
not a party to this Agreement in excess of $25,000,000 shall be deemed to be
assigned to the Revolving Credit Lenders party to this Agreement, and each
such Existing Lender shall cease to be a party to this Agreement, (iv) the
Revolving Credit Commitment of each Revolving Credit Lender party to the
Existing Credit Agreement that is a party to this Agreement shall be adjusted
from such Lender's Pro Rata Share (as defined in the Existing Credit
Agreement) of $200,000,000 to the amount set forth opposite such Lender's name
under the heading "Revolving Credit Commitment" on Schedule 1.01, and (v) each
Revolving Credit Lender becoming a party to this Agreement on the Effective
Date shall be deemed to have assumed from the Revolving Credit Lenders party
to the Existing Credit Agreement a Revolving Credit Commitment equal to the
amount set forth opposite such Lender's name under the heading "Revolving
Credit Commitment" on Schedule 1.01.
() Notice of Borrowing. When any Borrower desires to borrow
under this Section 2.02, the Company shall deliver to the Administrative Agent
(with a copy to First Chicago London, in the case of a Borrowing of
Multicurrency Loans) an irrevocable Notice of Borrowing, signed by it, (x) on
the Effective Date, in the case of a Borrowing of Revolving Loans on the
Effective Date and (y) no later than 11:00 a.m. (Chicago time) (or 2:00 p.m.
(London time) in the case of a Borrowing of Multicurrency Loans) (I) on the
Business Day immediately preceding the proposed Funding Date, in the case of a
Borrowing of Base Rate Loans after the Effective Date and (II) at least three
(3) Business Days in advance of the proposed Funding Date, in the case of a
Borrowing of Eurocurrency Rate Loans after the Effective Date. Such Notice of
Borrowing shall specify (i) the proposed Funding Date (which shall be a
Business Day), (ii) the amount and currency of the proposed Borrowing,
(iii) the Revolving Credit Availability as of the date of such Notice of
Borrowing, (iv) whether the proposed Borrowing will be of Base Rate Loans or
Eurocurrency Rate Loans (it being understood and agreed that no Multicurrency
Loans may be made as Base Rate Loans), (v) in the case of Eurocurrency Rate
Loans, the requested Eurocurrency Interest Period, (vi) the Borrower making
such Borrowing, (vii) instructions for the disbursement of the proceeds of the
proposed Borrowing and (viii) whether the proposed Borrowing will be used for
the purpose of consummating a Permitted Acquisition. In lieu of delivering
such a Notice of Borrowing (except with respect to a Borrowing on the
Effective Date), the Company shall give the Administrative Agent (and First
Chicago London, in the case of a Borrowing of Multicurrency Loans) irrevocable
telephonic notice of any proposed Borrowing by the time required under this
Section 2.02(b), and shall confirm such notice by delivery of the Notice of
Borrowing by telecopy to the Administrative Agent (with a copy to First
Chicago London, in the case of a Borrowing of Multicurrency Loans) promptly,
but in no event later than 4:00 p.m. (Chicago time) on the same day. Any
Notice of Borrowing delivered in connection with a Permitted Acquisition shall
be accompanied by the Officer's Certificate required pursuant to Section
8.17(b).
() Making of Revolving Loans. () Promptly after receipt of a
Notice of Borrowing under Section 2.02(b) (or telephonic notice in lieu
thereof), the Administrative Agent shall notify each Revolving Credit Lender
by telex or telecopy, or other similar form of transmission, of the proposed
Borrowing. Each Revolving Credit Lender shall deposit an amount equal to its
Pro Rata Share of the amount requested by the Company to be made as Revolving
Loans, (A) in the case of a Borrowing in Dollars, with the Administrative
Agent at its office in Chicago, Illinois, in immediately available funds, and
(B) in the case of a Borrowing in an Alternative Currency, with First Chicago
London at its office in London, England in immediately available funds, in
either instance (1) on the Effective Date specified in the initial Notice of
Borrowing and (2) not later than 2:00 p.m. (Chicago or London time, as
applicable) on any other Funding Date applicable thereto. Subject to the
fulfillment of the conditions precedent set forth in Section 5.01 or Section
5.02, as applicable, the Administrative Agent or First Chicago London, as
applicable, shall make the proceeds of such amounts received by it available
to the applicable Borrower at the respective office of the Administrative
Agent or First Chicago London on such Funding Date (or on the date received if
later than such Funding Date) and shall disburse such proceeds to the
Disbursement Account or otherwise in accordance with the Company's
disbursement instructions set forth in the applicable Notice of Borrowing. The
failure of any Revolving Credit Lender to deposit the amount described above
with the Administrative Agent or First Chicago London on the applicable
Funding Date shall not relieve any other Revolving Credit Lender of its
obligations hereunder to make its Revolving Loan on such Funding Date. No
Revolving Credit Lender shall be responsible for any failure by any other
Revolving Credit Lender to perform its obligation to make a Revolving Loan
hereunder nor shall the Revolving Credit Commitment of any Revolving Credit
Lender be increased or decreased as a result of any such failure.
() Anything hereinabove to the contrary notwithstanding, if any
Revolving Credit Lender shall, not later than 10:00 a.m. (London time) two
Business Days before the date of any requested Borrowing of Multicurrency
Loans, notify the Administrative Agent that such Lender is not satisfied that
deposits in the relevant Alternative Currency will be freely available to it
in the relevant amount and for the relevant Eurocurrency Interest Period, the
right of the Borrowers to request Multicurrency Loans in such Alternative
Currency from such Lender as part of such Borrowing or any subsequent
Borrowing of Multicurrency Loans shall be suspended until such Lender shall
notify the Administrative Agent that the circumstances causing such suspension
no longer exist, and, at the option of the Borrowers, either (i) the
applicable Notice of Borrowing may be withdrawn and such Borrowing shall not
be made, or (ii) the Multicurrency Loan to be made by such Lender as part of
such Borrowing (and the Multicurrency Loan to be made by such Lender as part
of any subsequent Borrowing of Multicurrency Loans in respect of which such
Alternative Currency shall have been requested during such period of
suspension) shall be a Eurocurrency Rate Loan denominated in Dollars and
having an Eurocurrency Interest Period coextensive with the Eurocurrency
Interest Period in effect in respect of all other Multicurrency Loans
comprising a part of such Borrowing. If any Borrower elects to withdraw its
Notice of Borrowing, such Borrower shall be liable to each other Revolving
Credit Lender for any damages suffered on account thereof of a nature
described in Section 4.02(f). The Administrative Agent shall, upon receiving
notice from such Lender that the circumstances causing any such suspension no
longer apply, promptly so notify the Borrowers; provided, that the failure of
the Administrative Agent to so notify the Borrowers shall not impair the
rights of the Revolving Credit Lenders under this Section 2.02(c)(ii) or
expose the Administrative Agent to any liability.
() Unless the Administrative Agent shall have been notified by
any Revolving Credit Lender on the Business Day immediately preceding the
applicable Funding Date in respect of any Borrowing of Revolving Loans that
such Lender does not intend to fund its Revolving Loan requested to be made on
such Funding Date, the Administrative Agent may assume that such Lender has
funded its Revolving Loan and is depositing the proceeds thereof with the
Administrative Agent or First Chicago London, as applicable, on the Funding
Date, and the Administrative Agent or First Chicago London, as applicable, in
its sole discretion may, but shall not be obligated to, disburse a
corresponding amount to the applicable Borrower on the Funding Date. If the
Revolving Loan proceeds corresponding to that amount are advanced to the
applicable Borrower by the Administrative Agent or First Chicago London, as
applicable, but are not in fact deposited with the Administrative Agent or
First Chicago London, as applicable, by such Lender on or prior to the
applicable Funding Date, such Lender agrees to pay, and in addition the
applicable Borrower agrees to repay, to the Administrative Agent or First
Chicago London, as applicable, forthwith on demand such corresponding amount,
together with (x) interest thereon, for each day from the date such amount is
disbursed to or for the benefit of such Borrower until the date such amount is
paid or repaid to the Administrative Agent or First Chicago London, as
applicable, (A) in the case of such Borrower, at the interest rate applicable
to such Borrowing and (B) in the case of such Lender, at the Interbank Rate
for the first Business Day, and thereafter at the interest rate applicable to
such Borrowing and (y), in the case of a Borrowing in an Alternative Currency,
any other cost or loss suffered or incurred by First Chicago London in
connection therewith. If such Lender shall pay to the Administrative Agent
or First Chicago London, as applicable, the corresponding amount, the amount
so paid shall constitute such Lender's Revolving Loan, and if both such Lender
and such Borrower shall pay and repay such corresponding amount, the
Administrative Agent shall promptly pay to such Borrower such corresponding
amount. This Section 2.02(c)(ii) does not relieve any Revolving Credit Lender
of its obligation to make its Revolving Loan on any Funding Date.
(iv) Notwithstanding anything in this Section 2.02 to the
contrary, in the event a Borrower requests a Borrowing of Revolving Loans in
an Alternative Currency, those Revolving Credit Lenders that are
NonParticipating Multicurrency Lenders shall not be required to fund their Pro
Rata Shares of such Borrowing. Subject to the fulfillment of the conditions
precedent set forth in Section 5.01 or Section 5.02, as applicable, each
Multicurrency Lender agrees to fund an amount in such Alternative Currency
equal to its Multicurrency Pro Rata Share of such Borrowing; provided that in
no event shall such Lender's Multicurrency Pro Rata Share of the Dollar
Equivalent of all Multicurrency Loans (including such Borrowing) and Letter of
Credit Obligations denominated in an Alternative Currency, together with its
Pro Rata Share of all other outstanding Revolving Credit Obligations, exceed
such Lender's Revolving Credit Commitment in effect at such time or such
Lender's Pro Rata Share of the Maximum Revolving Credit Amount at such time.
For purposes of this clause (iv), "Multicurrency Pro Rata Share" means, with
respect to any Multicurrency Lender, the percentage obtained by dividing
(i) such Lender's Revolving Credit Commitment at such time by (ii) the
aggregate amount of all Revolving Credit Commitments of the Multicurrency
Lenders at such time.
() Use of Proceeds of Revolving Loans. The proceeds of the
Revolving Loans may be used (i) on the Effective Date to repay Revolving Loans
then outstanding under the Existing Credit Agreement, and (ii) from and after
the Effective Date (A) to pay the purchase price of any Permitted Acquisition
and other related transaction costs and expenses and to fund any refinancing
of Indebtedness in connection with a Permitted Acquisition as set forth and
certified in the Notice of Borrowing pertaining thereto, (B) to fund working
capital in the ordinary course of the business of the Company and its
Subsidiaries and (C) for other lawful general corporate purposes not
prohibited hereunder.
() Revolving Credit Termination Date. The Revolving Credit
Commitments shall terminate, and all outstanding Revolving Credit Obligations
shall be paid in full (or, in the case of unmatured Letter of Credit
Obligations, provision for payment of Cash Collateral shall be made to the
satisfaction of the Issuing Banks and the Administrative Agent), on the
Revolving Credit Termination Date. Each Lender's obligation to make Revolving
Loans shall terminate at the close of business in Chicago on the Business Day
next preceding the Revolving Credit Termination Date.
2.0. Swing Loans. () Availability. Subject to the terms and
conditions set forth herein, the Swing Loan Bank may, in its sole discretion,
make loans (the "Swing Loans") to the Company, from time to time during the
period from the Effective Date and at any time up to the Business Day next
preceding the Revolving Credit Termination Date, up to an aggregate principal
amount at any one time outstanding which shall not exceed an amount equal to
the lesser of (i) $10,000,000 and (ii) the Revolving Credit Availability at
such time. The Swing Loan Bank shall have no duty to make or to continue to
make Swing Loans. All Swing Loans shall be payable on demand with accrued
interest thereon and shall be secured as part of the Obligations by the
Collateral and shall otherwise be subject to all the terms and conditions
applicable to Revolving Loans, except that (x) Swing Loans shall not have a
minimum amount requirement, (y) all interest on the Swing Loans made by the
Swing Loan Bank shall be payable to the Swing Loan Bank solely for its own
account and (z) all Swing Loans shall be denominated in Dollars.
() Notice of Borrowing. When the Company desires to borrow
under this Section 2.03, it shall deliver to the Administrative Agent an
irrevocable Notice of Borrowing, signed by it, no later than 11:00 a.m.
(Chicago time) on the day of the proposed Borrowing of a Swing Loan. Such
Notice of Borrowing shall specify (i) the date of the proposed Borrowing
(which shall be a Business Day), (ii) the amount of the proposed Borrowing and
(iii) instructions for the disbursement of the proceeds of the proposed
Borrowing. Any Notice of Borrowing delivered pursuant to this Section 2.03(b)
shall be deemed to constitute a Notice of Borrowing under Section 2.02(b) in
the event the Administrative Agent determines in its sole discretion that a
Borrowing of Swing Loans is not possible or feasible. In lieu of delivering
such a Notice of Borrowing, the Company shall give the Administrative Agent
irrevocable telephonic notice of any proposed Borrowing by 12:00 noon on the
day of the proposed Borrowing, and shall confirm such notice by delivery of
the Notice of Borrowing by telecopy to the Administrative Agent promptly, but
in no event later than 2:00 p.m. (Chicago time) on the same day. All Swing
Loans shall be Base Rate Loans.
() Making of Swing Loans. The Swing Loan Bank shall deposit
the amount it intends to fund, if any, in respect of the Swing Loans requested
by the Company with the Administrative Agent at its office in Chicago,
Illinois not later than 1:00 p.m. (Chicago time) in immediately available
funds on the date of the proposed Borrowing applicable thereto. The Swing
Loan Bank shall not make any Swing Loan in the period commencing on the first
Business Day after it receives written notice from any Revolving Credit Lender
that one or more of the conditions precedent contained in Section 5.02 shall
not on such date be satisfied, and ending when such conditions are satisfied
or waived pursuant to Section 13.07 hereof, and the Swing Loan Bank shall not
otherwise be required to determine that, or take notice whether, the
conditions precedent set forth in Section 5.02 hereof have been satisfied in
connection with the making of any Swing Loan. Subject to the preceding
sentence, the Administrative Agent shall make such proceeds available to the
Company at the Administrative Agent's office in Chicago, Illinois on the date
of the proposed Borrowing and shall disburse such proceeds to the Disbursement
Account.
() Repayment of Swing Loans. The Company shall repay the
outstanding Swing Loans owing to the Swing Loan Bank (i) upon demand by the
Swing Loan Bank or, if no such demand is made, within seven (7) Business Days
after the Borrowing thereof and (ii) in any event, on the Revolving Credit
Termination Date. In the event that the Company fails to repay any Swing
Loans, together with interest thereon, as set forth in the first sentence of
this paragraph, then, upon the request of the Swing Loan Bank, each Revolving
Credit Lender shall make Revolving Loans to the Company (irrespective of the
satisfaction of the conditions in Section 5.02 or the requirement to deliver a
Notice of Borrowing in Section 2.02(b), which conditions and requirement such
Lenders irrevocably waive) in an amount equal to such Lender's Pro Rata Share
of the aggregate amount of the Swing Loans then outstanding (net of that
portion of such Swing Loan, if any, owing to such Lender in its capacity as a
Swing Loan Bank) after giving effect to any prepayments and repayments made by
the Company, and the Company hereby authorizes the Administrative Agent to
apply the proceeds of such Revolving Loans to the repayment of such Swing
Loans. To the extent the Administrative Agent receives any amounts in
prepayment or repayment of outstanding Revolving Loans prior to such request,
the Administrative Agent shall apply such amounts when received to the
repayment of the Swing Loans then outstanding. The failure of any Revolving
Credit Lender to make available to the Administrative Agent its Pro Rata Share
of such Revolving Loans shall not relieve any other Revolving Credit Lender of
its obligation hereunder to make available to the Administrative Agent such
other Lender's Pro Rata Share of such Revolving Loans on the date of such
request. No Revolving Credit Lender shall be responsible for any failure by
any other Revolving Credit Lender to perform its obligations to make such
Revolving Loans hereunder nor shall the Revolving Credit Commitment of any
Revolving Credit Lender be increased or decreased as a result of such failure.
() Use of Proceeds of Swing Loans. The proceeds of the Swing
Loans may be used for working capital in the ordinary course of the Company's
business and for lawful general corporate purposes of the Company not
prohibited hereunder.
2.0. Letters of Credit. Subject to the terms and conditions
set forth herein, each Issuing Bank hereby severally agrees to Issue for the
account of the Borrowers one or more Letters of Credit, up to an aggregate
face amount at any one time outstanding equal to the Letter of Credit
Availability, subject to the following provisions:
() Types and Amounts. An Issuing Bank shall not have any
obligation to Issue, and shall not Issue any Letter of Credit at any time:
() if the aggregate Letter of Credit Obligations with respect
to such Issuing Bank, after giving effect to the Issuance of the Letter of
Credit requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank;
() if the Issuing Bank receives written notice (A) from the
Administrative Agent at or before 10:00 a.m. (Chicago time) on the date of the
proposed Issuance of such Letter of Credit that immediately after giving
effect to the Issuance of such Letter of Credit, (1) the Revolving Credit
Obligations at such time would exceed the Maximum Revolving Credit Amount at
such time, (2) the undrawn face amount of the Letter of Credit Obligations
denominated in Alternative Currencies, when aggregated with all other
Revolving Credit Obligations denominated in Alternative Currencies, would
exceed the Multicurrency Sublimit, or (3) in the case such Letter of Credit is
being issued for the account of a Foreign Borrower, the Revolving Credit
Obligations owing by such Foreign Borrower at such time would exceed such
Foreign Borrower's Foreign Borrower Sublimit or (B) from any of the Revolving
Credit Lenders at or before 10:00 a.m. (Chicago time) on the date of the
proposed Issuance of such Letter of Credit that one or more of the conditions
precedent contained in Sections 5.01 or 5.02, as applicable, would not on such
date be satisfied (or waived pursuant to Section 13.07), unless such
conditions are thereafter satisfied or waived and written notice of such
satisfaction or waiver is given to the Issuing Bank by the Administrative
Agent (and an Issuing Bank shall not otherwise be required to determine that,
or take notice whether, the conditions precedent set forth in Sections 5.01 or
5.02, as applicable, have been satisfied or waived); or
() which has an expiration date later than the earlier of
(A) the date one (1) year after the date of issuance (without regard to any
renewal provisions thereof) or (B) the Revolving Credit Termination Date; or
() which is in a currency other than Dollars or an Alternative
Currency in which such Issuing Bank is then issuing letters of credit.
() Conditions. In addition to being subject to the
satisfaction of the conditions precedent contained in Sections 5.01 and 5.02,
as applicable, the obligation of an Issuing Bank to Issue any Letter of Credit
for the account of a Borrower is subject to the satisfaction in full of the
following conditions:
() if the Issuing Bank so requests, such Borrower shall have
executed and delivered to such Issuing Bank and the Administrative Agent a
Letter of Credit Reimbursement Agreement and such other documents and
materials as may be required pursuant to the terms thereof; and
() the terms of the proposed Letter of Credit shall be
satisfactory to the Issuing Bank in its sole discretion consistent with
commercial practices.
() Issuance of Letters of Credit. () The Company shall give
an Issuing Bank and the Administrative Agent written notice that it has
selected such Issuing Bank to Issue a Letter of Credit (A) not later than
10:00 a.m. (Chicago time) on the requested date (which shall be a Business
Day) for Issuance of any Letter of Credit denominated in Dollars and (B) not
later than 2:00 p.m. (London time) on the fourth Business Day preceding the
requested date (which shall be a Business Day) for Issuance of any Letter of
Credit denominated in an Alternative Currency. Such notice shall be
irrevocable unless and until such request is denied by the applicable Issuing
Bank and shall specify (A) that the requested Letter of Credit is either a
Commercial Letter of Credit or a Standby Letter of Credit, (B) the stated
amount and currency of the Letter of Credit requested, (C) the effective date
(which shall be a Business Day) of Issuance of such Letter of Credit, (D) the
date on which such Letter of Credit is to expire, (E) the Person for whose
benefit such Letter of Credit is to be Issued, (F) the Borrower for whose
account the requested Letter of Credit is to be Issued, (G) other relevant
terms of such Letter of Credit and (H) the amount of the then outstanding
Letter of Credit Obligations. Such Issuing Bank shall notify the
Administrative Agent immediately upon receipt of a written notice from the
Company requesting that a Letter of Credit be Issued and, upon the
Administrative Agent's request therefor, send a copy of such notice to the
Administrative Agent.
() The Issuing Bank shall give the Administrative Agent written
notice, or telephonic notice confirmed promptly thereafter in writing, of the
Issuance of a Letter of Credit (which notice the Administrative Agent shall
promptly transmit by telegram, telex, telecopy, telephone or similar
transmission to each Lender).
() Reimbursement Obligations; Duties of Issuing Banks.
() Notwithstanding any provisions to the contrary in any Letter of Credit
Reimbursement Agreement:
() the Borrower for whose account a Letter of Credit has been
Issued shall reimburse the Issuing Bank for amounts drawn under such
Letter of Credit pursuant to subsection (e)(ii) below, in the currency
in which such Letter of Credit is denominated, no later than the date
(the "Reimbursement Date") which is one (1) Business Day after such
Borrower receives written notice from the Issuing Bank that payment
has been made under such Letter of Credit by the Issuing Bank; and
() all Reimbursement Obligations with respect to any Letter of
Credit shall bear interest at the rate applicable to Base Rate Loans
(if such Letter of Credit is denominated in Dollars) or Eurocurrency
Rate Loans with Eurocurrency Interest Periods determined by the
Administrative Agent (if such Letter of Credit is denominated in an
Alternative Currency), in each case in accordance with Section 4.01(a)
from the date of the relevant drawing under such Letter of Credit
until the Reimbursement Date and thereafter at the rate applicable in
accordance with Section 4.01(d).
() The applicable Issuing Bank shall give the Administrative
Agent written notice, or telephonic notice confirmed promptly thereafter in
writing, of all drawings under a Letter of Credit and the payment (or the
failure to pay when due) by the applicable Borrower on account of a
Reimbursement Obligation (which notice the Administrative Agent shall promptly
transmit by telegram, telex, telecopy or similar transmission to each
Revolving Credit Lender).
() No action taken or omitted in good faith by an Issuing Bank
under or in connection with any Letter of Credit shall put such Issuing Bank
under any resulting liability to any Lender or, so long as such Letter of
Credit is not Issued in violation of Section 2.04(a), relieve any Revolving
Credit Lender of its obligations hereunder to such Issuing Bank. Solely as
between the Issuing Banks and such Lenders, in determining whether to pay
under any Letter of Credit, the respective Issuing Bank shall have no
obligation to the Revolving Credit Lenders other than to confirm that any
documents required to be delivered under a respective Letter of Credit appear
to have been delivered and that they appear on their face to comply with the
requirements of such Letter of Credit.
() Participations. () Immediately upon Issuance by an Issuing
Bank of any Letter of Credit in accordance with the procedures set forth in
this Section 2.04, each Revolving Credit Lender shall be deemed to have
irrevocably and unconditionally purchased and received from that Issuing Bank,
without recourse or warranty, an undivided interest and participation in such
Letter of Credit to the extent of such Lender's Pro Rata Share, including,
without limitation, all obligations of applicable Borrower with respect
thereto (other than amounts owing to the Issuing Bank under Section 2.04(g))
and any security therefor and guaranty pertaining thereto.
() If any Issuing Bank makes any payment under any Letter of
Credit and the applicable Borrower does not repay such amount to the Issuing
Bank on the Reimbursement Date, the Issuing Bank shall promptly notify the
Administrative Agent, which shall promptly notify each Revolving Credit
Lender, and each such Lender shall promptly and unconditionally pay to the
Administrative Agent for the account of such Issuing Bank, in immediately
available funds, the amount of such Lender's Pro Rata Share (or Multicurrency
Pro Rata Share, in the case of any such payment denominated in an Alternative
Currency) of such payment (net of that portion of such payment, if any, made
by such Lender in its capacity as an Issuing Bank), and the Administrative
Agent shall promptly pay to the Issuing Bank such amounts received by it, and
any other amounts received by the Administrative Agent for the Issuing Bank's
account, pursuant to this Section 2.04(e). All such payments shall constitute
Revolving Loans made to the applicable Borrower pursuant to Section 2.02
(irrespective of the satisfaction of the conditions in Section 5.02 or the
requirement in Section 2.02(b) to deliver a Notice of Borrowing which
conditions and requirement, for the purpose of refunding any Reimbursement
Obligation owing to any Issuing Bank, the Revolving Credit Lenders irrevocably
waive) and shall thereupon cease to be unpaid Reimbursement Obligations. Such
Revolving Loans shall be Base Rate Loans (if such Letter of Credit is
denominated in Dollars) or Eurocurrency Rate Loans with Eurocurrency Interest
Periods determined by the Administrative Agent (if such Letter of Credit is
denominated in an Alternative Currency). If a Revolving Credit Lender does
not make its Pro Rata Share (or Multicurrency Pro Rata Share, in the case of
any such payment denominated in a Alternative Currency) of the amount of such
payment available to the Administrative Agent, such Lender agrees to pay to
the Administrative Agent for the account of the Issuing Bank, forthwith on
demand, such amount together with interest thereon, for the first Business Day
after the date such payment was first due at the Interbank Rate, and
thereafter at the interest rate then applicable to Base Rate Loans (in the
case of Revolving Loans denominated in Dollars) and Eurocurrency Loans with a
Eurocurrency Interest Period of one week (in the case of Multicurrency Loans),
in each case in accordance with Section 4.01(a). The failure of any such
Lender to make available to the Administrative Agent for the account of an
Issuing Bank its Pro Rata Share (or Multicurrency Pro Rata Share, in the case
of any such payment denominated in an Alternative Currency) of any such
payment shall neither relieve any other Lender of its obligation hereunder to
make available to the Administrative Agent for the account of such Issuing
Bank such other Lender's Pro Rata Share of any payment on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Administrative Agent. This Section does not relieve any
Revolving Credit Lender of its obligation to purchase Pro Rata Share
participations in Letters of Credit; nor does this Section relieve the
applicable Borrower of its obligation to pay or repay any Issuing Bank funding
its Pro Rata Share of such payment pursuant to this Section interest on the
amount of such payment from such date such payment is to be made until the
date on which payment is repaid in full. Notwithstanding the foregoing, no
Non-Participating Multicurrency Lender shall be obligated under this Section
2.04(e)(ii) to make any Multicurrency Loan for the purpose of funding the
payment to any Issuing Bank in respect of a Reimbursement Obligation owing to
such Issuing Bank denominated in an Alternative Currency.
() Whenever an Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as to which any
Revolving Credit Lender has made a Revolving Loan pursuant to clause (ii) of
this Section, such Issuing Bank shall promptly pay to the Administrative Agent
such payment in accordance with Section 3.02. Each such payment shall be made
by such Issuing Bank or the Administrative Agent, as the case may be, on the
Business Day on which such Person receives the funds paid to such Person
pursuant to the preceding sentence, if received prior to 10:00 a.m. (Chicago
time) on such Business Day, and otherwise on the next succeeding Business Day.
() Upon the request of any Revolving Credit Lender to the
Administrative Agent, an Issuing Bank shall furnish such Lender copies of any
Letter of Credit or Letter of Credit Reimbursement Agreement to which such
Issuing Bank is party and such other documentation as reasonably may be
requested by such Lender.
() The obligations of a Revolving Credit Lender to make
payments to the Administrative Agent for the account of any Issuing Bank with
respect to a Letter of Credit issued for the account of any Borrower, shall be
irrevocable, shall not be subject to any qualification or exception whatsoever
except willful misconduct or gross negligence of such Issuing Bank as
determined in a final, non-appealable judgment by a court of competent
jurisdiction, and shall be honored in accordance with this Article II
(irrespective of the satisfaction of the conditions described in Sections 5.01
and 5.02, as applicable which conditions, for the purposes of the repayment of
Letters of Credit to the Issuing Bank, such Lenders irrevocably waive) under
all circumstances, including, without limitation, any of the following
circumstances:
() any lack of validity or enforceability hereof or of any of
the other Loan Documents;
() the existence of any claim, setoff, defense or other right
which such Borrower may have at any time against a beneficiary named
in a Letter of Credit or any transferee of a beneficiary named in a
Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any CoAgent, any Issuing Bank, any
Lender, or any other Person, whether in connection herewith, with any
Letter of Credit, the transactions contemplated herein or any
unrelated transactions (including any underlying transactions between
the account party and beneficiary named in any Letter of Credit);
() any draft, certificate or any other document presented under
the Letter of Credit having been determined to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
() the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
() any failure by such Issuing Bank to make any reports
required pursuant to Section 2.04(h) or the inaccuracy of any such
report; or
() the occurrence of any Event of Default or Default.
() Payment of Reimbursement Obligations. Subject to the terms
hereof, () the Borrower for whose account a Letter of Credit is Issued
unconditionally agrees to pay to each Issuing Bank, in Dollars or the
applicable Alternative Currency, the amount of all Reimbursement Obligations,
interest and other amounts payable to such Issuing Bank under or in connection
with such Letter of Credit when such amounts are due and payable, irrespective
of any claim, setoff, defense or other right which such Borrower may have at
any time against any Issuing Bank or any other Person.
() In the event any payment by a Borrower received by an
Issuing Bank with respect to a Letter of Credit and distributed by the
Administrative Agent to the Revolving Credit Lenders on account of their
participation is thereafter set aside, avoided or recovered from such Issuing
Bank in connection with any receivership, liquidation or bankruptcy
proceeding, each such Lender which received such distribution shall, upon
demand by such Issuing Bank, contribute such Lender's Pro Rata Share of the
amount set aside, avoided or recovered together with interest at the rate
required to be paid by such Issuing Bank upon the amount required to be repaid
by it.
() Issuing Bank Charges. Each Borrower shall pay to each
Issuing Bank, solely for its own account, the standard charges assessed by
such Issuing Bank in connection with the issuance, administration, amendment
and payment or cancellation of Letters of Credit and such compensation in
respect of such Letters of Credit for such Borrower's account as may be agreed
upon by such Borrower and such Issuing Bank from time to time.
() Issuing Bank Reporting Requirements. Each Issuing Bank
shall, no later than the tenth (10th) Business Day following the last day of
each calendar month, provide to the Administrative Agent and the Company
separate schedules for Commercial Letters of Credit and Standby Letters of
Credit issued by the Borrowers, in form and substance reasonably satisfactory
to the Administrative Agent and the Company, setting forth the aggregate
Letter of Credit Obligations outstanding to the Borrowers at the end of each
month and any information requested by the Administrative Agent or the Company
relating to the date of issue, account party, amount, expiration date and
reference number of each Letter of Credit issued by the Borrowers.
() Indemnification; Exoneration. () In addition to all other
amounts payable to an Issuing Bank, each Borrower hereby agrees to defend,
indemnify, and save the Administrative Agent, each CoAgent, each Issuing Bank
and each Lender harmless from and against any and all claims, demands,
liabilities, penalties, damages, losses (other than loss of profits), costs,
charges and expenses (including reasonable attorneys' fees but excluding taxes)
which the Administrative Agent, such CoAgent, such Issuing Bank or such Lender
may incur or be subject to as a consequence, direct or indirect, of (i) the
Issuance of any Letter of Credit other than as a result of the gross
negligence or willful misconduct of the Issuing Bank, as determined in a
final, non-appealable judgment by a court of competent jurisdiction, or
(ii) the failure of the Issuing Bank issuing a Letter of Credit to honor a
drawing under such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority.
() As between a Borrower on the one hand and the Administrative
Agent, the CoAgents, the Lenders and the Issuing Banks on the other hand, such
Borrower assumes all risks of the acts and omissions of, or misuse of Letters
of Credit by, the respective beneficiaries of the Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions
of the Letter of Credit Reimbursement Agreements, the Administrative Agent,
the CoAgents, the Issuing Banks and the Lenders shall not be responsible for:
(i) the form, validity, legality, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for and Issuance of the Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity, legality or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they
be in cipher; (v) errors in interpretation of technical terms; (vi) any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit or of the proceeds thereof;
(vii) the misapplication by the beneficiary of a Letter of Credit of the
proceeds of any drawing under such Letter of Credit; (viii) any litigation,
proceeding or charges with respect to such Letter of Credit; and (ix) any
consequences arising from causes beyond the control of the Administrative
Agent, the CoAgents, the Issuing Banks or the Lenders, except in the cases of
clauses (i), (iii), (iv), (v), (vi), (viii) and (ix) above, in each instance
for the gross negligence or willful misconduct of the Issuing Bank, as
determined in a final, non-appealable judgment by a court of competent
jurisdiction.
() Obligations Several. The obligations of each Issuing Bank
and each Revolving Credit Lender under this Section 2.04 are several and not
joint, and no Issuing Bank or Lender shall be responsible for the obligation
to issue Letters of Credit or the participation obligation hereunder,
respectively, of any other Issuing Bank or Lender.
2.0. Promise to Repay; Evidence of Indebtedness.
() Promise to Repay. Each Borrower hereby agrees to pay when
due the principal amount of each Loan which is made to it, and further agrees
to pay when due all unpaid interest accrued thereon, in accordance with the
terms hereof and of the Notes. Each Borrower shall execute and deliver to
each Lender, as applicable, (i) on the Effective Date, (A) Term Loan Notes
substantially in the form of Exhibit D, evidencing the Term Loans,
(B) Revolving Credit Notes substantially in the form of Exhibit E and
(C) Swing Loan Notes substantially in the form of Exhibit F, and
(ii) thereafter shall execute and deliver such other promissory notes as are
necessary to evidence the Loans owing to the Lenders after giving effect to
any assignment thereof pursuant to Section 13.01, all in form and substance
acceptable to the Administrative Agent and the parties to such assignment (all
such Term Loan Notes, Revolving Credit Notes and Swing Loan Notes and all
amendments thereto, replacements thereof and substitutions therefor being
collectively referred to as the "Notes"; and "Note" means any one of the
Notes).
() Loan Account. Each Lender shall maintain in accordance with
its usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of each Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under each of
the Notes.
2.0. Authorized Officers and Agents. On the Effective Date
and from time to time thereafter, the Company shall deliver to the
Administrative Agent an Officers' Certificate setting forth the names of the
officers, employees and agents of the Borrowers authorized to request
Revolving Loans, Swing Loans and Letters of Credit and containing a specimen
signature of each such officer, employee or agent. The officers, employees
and agents so authorized shall also be authorized to act for the Borrowers in
respect of all other matters relating to the Loan Documents. The
Administrative Agent shall be entitled to rely conclusively on such officer's
or employee's authority to request such Loan or Letter of Credit until the
Administrative Agent receives written notice to the contrary. In addition,
the Administrative Agent shall be entitled to rely conclusively on any written
notice sent to it by telecopy. The Administrative Agent shall have no duty to
verify the authenticity of the signature appearing on, or any telecopy or
facsimile of, any written Notice of Borrowing or any other document, and, with
respect to an oral request for such a Loan or Letter of Credit, the
Administrative Agent shall have no duty to verify the identity of any person
representing himself or herself as one of the officers, employees or agents
authorized to make such request or otherwise to act on behalf of the
Borrowers. None of the Administrative Agent, either CoAgent, any Lender or
any Issuing Bank shall incur any liability to the Borrowers or any other
Person in acting upon any telecopy or facsimile or telephonic notice referred
to above which the Administrative Agent reasonably believes to have been given
by a duly authorized officer, employee or agent set forth in the most recent
Officers' Certificate delivered by the Company to the Administrative Agent.
2.0. Designation of Foreign Borrowers. () The Company shall
have the right to designate one or more Wholly Owned Foreign Subsidiaries
(other than Insilco GmbH) to become "Foreign Borrowers" for all purposes under
this Agreement by giving the Administrative Agent at least 30 days written
notice of its intention to designate a Foreign Borrower. The Company shall
also specify in such written notice the Foreign Borrower Sublimit for such
designated Foreign Borrower. No Foreign Borrower (including Insilco GmbH)
shall be entitled to request Revolving Loans or Letters of Credit hereunder
unless the following conditions precedent are satisfied (it being understood
and agreed that Insilco GmbH, by being a party to this Agreement, has already
satisfied the condition in clause (i)(A) below):
() The Administrative Agent (on behalf of itself and the
Lenders) shall have received on or before the initial funding of any
Revolving Loan to, or the date of issuance of any Letter of Credit for
the account of, such Foreign Borrower, all of the following in form
and substance satisfactory to the Administrative Agent:
() A Foreign Borrower Assumption Agreement substantially in
the form of Exhibit G, duly executed by such Foreign Borrower, the
Company, the Administrative Agent and Lenders constituting the
Requisite Lenders, pursuant to which, among other things,
(I) such Foreign Borrower agrees to be bound by the terms of this
Agreement applicable to Foreign Borrowers, (II) the Requisite
Lenders approve of the designation of such Foreign Borrower and
(III) the Requisite Lenders approve of the Foreign Borrower
Sublimit of such Foreign Borrower;
() A pledge of 65% of the Capital Stock of such Foreign
Borrower as security for the Obligations;
() A Revolving Credit Note payable to each Lender in a
principal amount equal to such Lender's Pro Rata Share of such
Foreign Borrower's Foreign Borrower Sublimit; and
() Such corporation documentation, opinions of counsel
and other documentation as the Administrative Agent may
reasonably request.
() No Event of Default or Default shall have occurred and be
continuing or would result from the making of any Loans to such Foreign
Borrower.
() All of the representations and warranties contained in
Section 6.01 and in any of the other Loan Documents shall be true and correct
in all material respects on and as of the effective date of the designation of
such Foreign Borrower (other than representations and warranties which
expressly speak as of a different date).
() Such Foreign Borrower shall have received all consents and
authorizations required pursuant to any material Contractual Obligation with
any other Person and shall have obtained all consents and authorizations of,
and effected all notices to and filings with, any Governmental Authority as
may be necessary to allow such Foreign Borrower lawfully to execute, deliver
and perform, in all material respects, its obligations hereunder, under the
other Loan Documents to which it is, or shall be, a party and each other
agreement or instrument to be executed and delivered by it pursuant thereto or
in connection therewith.
() No Requirement of Law of the jurisdiction in which such
Foreign Borrower is located or organized shall prohibit any Multicurrency
Lender from making Revolving Loans to such Foreign Borrower or shall impose
any material adverse condition upon such Multicurrency Lender in connection
with the making of any Revolving Loan.
() Any Foreign Borrower may cease to be a Foreign Borrower for
all purposes hereunder upon (i) at least 30 days written notice from the
Company to the Administrative Agent specifying such Foreign Borrower and
(ii) the payment in full by such Foreign Borrower of all its Revolving Loans
and other Obligations (other than Obligations in respect of indemnities not
yet due).
ARTICLE
PAYMENTS AND PREPAYMENTS
3.0. Prepayments; Reductions in Revolving Credit Commitments.
() Voluntary Repayments/Reductions. () Voluntary Repayments
of Loans. Upon at least three (3) Business Days' prior notice to the
Administrative Agent (which the Administrative Agent shall promptly transmit
to each Lender), the Borrower may repay any Base Rate Loan, in whole or in
part. Eurocurrency Rate Loans may be repaid (A) in whole or in part on the
expiration date of the then applicable Eurocurrency Interest Period, as the
case may be, and (B) upon payment of the amounts described in Section 4.02(f)
on any other Business Day upon at least three (3) Business Days' prior written
notice to the Administrative Agent (which the Administrative Agent shall
promptly transmit to each Lender). Unless the aggregate outstanding principal
balance of the Term Loans is to be prepaid in full, voluntary prepayments of
the Term Loans shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount. Each voluntary
prepayment of the Term Loans shall be applied to the remaining installments of
the Term Loans in inverse order of maturity. Voluntary repayments of
Revolving Loans denominated in Dollars shall be in an aggregate minimum amount
of $500,000 and integral multiples of $100,000. Voluntary repayments of
Multicurrency Loans shall be in an aggregate amount equal to an integral
multiple of 100,000 units in such Alternative Currency and (converted to the
Dollar Equivalent thereof) equal to or greater than $500,000. Any notice of
repayment given to the Administrative Agent under this Section 3.01(a)(i)
shall specify, in accordance with the terms hereof, the date (which shall be a
Business Day) of repayment, the aggregate principal amount and currency of the
repayment, any allocation of such amount among Loans outstanding to the
Company and the Foreign Borrowers, and any allocation of such amount among
Base Rate Loans and Eurocurrency Rate Loans. When notice of repayment is
delivered as provided herein, the principal amount of the Loans specified in
the notice shall become due and payable on the repayment date specified in
such notice, subject to the right to reborrow the same in accordance with
Section 2.02. The Company may repay Swing Loans, without prior written notice
to the Administrative Agent or the Swing Loan Bank, at any time and from time
to time.
() Voluntary Revolving Credit Commitment Reductions. The
Company, upon at least three (3) Business Days' prior written notice to the
Administrative Agent (which the Administrative Agent shall promptly transmit
to each Lender), shall have the right, from time to time, to terminate in
whole or permanently reduce in part the Revolving Credit Commitments, provided
that the Borrowers shall have made whatever payment may be required to reduce
the Revolving Credit Obligations to an amount less than or equal to the
Maximum Revolving Credit Amount after giving effect to such reduction or
termination of the Revolving Credit Commitments. Any partial reduction of the
Revolving Credit Commitments shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount, and
shall reduce the Revolving Credit Commitment of each Lender proportionately in
accordance with its Pro Rata Share. Any notice of termination or reduction
given to the Administrative Agent under this Section 3.01(a)(ii) shall specify
the date (which shall be a Business Day) of such termination or reduction and,
with respect to a partial reduction, the aggregate principal amount thereof.
When notice of termination or reduction is delivered as provided herein, the
principal amount of the Revolving Loans specified in the notice shall become
due and payable on the date specified in such notice.
() No Prepayment Fee. The repayments and payments in respect of
reductions and terminations described in clauses (i) and (ii) of this Section
3.01(a) may be made without premium or penalty (except as provided in Section
4.02(f)).
() Mandatory Prepayments of Loans and Revolving Credit
Commitment Reductions.
() Immediately after Holdco's, the Borrowers' or any of the
Borrowers' Subsidiaries' receipt of any Net Cash Proceeds on account of
(A) the sale, assignment or other disposition of, or (B) subject to Section
8.07, the loss of or damage to, or taking by condemnation or eminent domain
of, all or any portion of the Property of Holdco, the Borrowers or any of the
Subsidiaries (other than pursuant to a Sale and Leaseback Transaction permitted
pursuant to Section 9.10), the Borrowers shall make or cause to be made a
mandatory prepayment of the Loans in an amount equal to 100% of such Net Cash
Proceeds; provided, however, Holdco, the Borrowers and the Subsidiaries taken
as a whole may retain Net Cash Proceeds of the type referred to in clause (A)
or (B) above in an aggregate amount not in excess of the first $5,000,000 in
the aggregate received by them in any Fiscal Year arising from any sale,
assignment or other disposition (or series of related sales, assignments or
other dispositions), or loss, damage or condemnation. In the event the
distribution of any Net Cash Proceeds received by a Foreign Subsidiary to the
Company on account of the sale, assignment or other disposition of all or any
portion of such Subsidiary's Property (X) would result in a current material
adverse tax consequence to such Foreign Subsidiary or (Y) would not be legally
permissible under any Requirement of Law applicable to such Foreign
Subsidiary, then no such mandatory prepayment shall be required if such Net
Cash Proceeds are reinvested by such Foreign Subsidiary in any Investment or
Capital Expenditure in the business of such Foreign Subsidiary (to the extent
otherwise permitted hereunder) within 360 days after the receipt thereof;
provided, however, if such Net Cash Proceeds are not so reinvested, then the
Borrowers shall make or cause to be made a mandatory prepayment of the Loans
in an amount equal to that portion of such Net Cash Proceeds that were not so
reinvested on the last day of such 360-day period.
() Immediately after Holdco's, the Borrowers' or any of the
Company's Subsidiaries' receipt of any Net Cash Proceeds identified in clause
(iii)(A) (issuance of Capital Stock) of the definition of "Net Cash Proceeds",
the Borrowers shall make or cause to be made a mandatory prepayment of the
Loans in an amount equal to fifty percent (50%) of such Net Cash Proceeds;
provided, however, a portion of such prepayment may be retained by the
Borrowers to the extent that the amount of Funded Debt as permanently reduced
by giving effect to the application of such Net Cash Proceeds would result (on
a pro forma basis) in a Leverage Ratio of 3.50 to 1 or less for the
twelve-month period ending on the last day of the immediately preceding fiscal
quarter of the Company.
() Immediately after Holdco's, the Company's or any of the
Domestic Subsidiaries' receipt of any Net Cash Proceeds from the issuance of
Indebtedness, the Borrowers shall make or cause to be made a mandatory
prepayment of the Loans in an amount equal to 100% of such Net Cash Proceeds.
() Within 105 days after the end of each Cash Flow Period,
(A) the Company shall calculate the Excess Cash Flow for such Cash Flow Period
and (B) the Company shall make a mandatory prepayment of the Obligations in an
amount equal to fifty percent (50%) of such Excess Cash Flow; provided,
however, a portion of such prepayment may be retained by the Borrowers to the
extent that the amount of Funded Debt as permanently reduced by giving effect
to the application of such Excess Cash Flow prepayment would result (on a pro
forma basis) in a Leverage Ratio of 3.50 to 1 or less for the twelve-month
period ending on the last day of the immediately preceding fiscal quarter of
the Company.
() Immediately after the Company's or any of its Domestic
Subsidiaries' receipt of any Net Cash Proceeds from any Sale and Leaseback
Transaction, the Company shall make or cause to be made a mandatory prepayment
in the amount equal to 100% of such Net Cash Proceeds; provided, however, the
Borrower and the Domestic Subsidiaries taken as a whole may retain Net Cash
Proceeds not in excess of $10,000,000 in the aggregate since the Effective
Date arising from any Sale and Leaseback Transaction.
() Nothing in this Section 3.01(b) shall be construed to
constitute the Lenders' consent to any transaction which is not permitted by
Article IX.
() On the date any mandatory prepayment is received by the
Administrative Agent pursuant to clause (i), (ii), (iii), (iv) or (v) above
(each such payment being a "Designated Prepayment"), such Designated
Prepayment shall be allocated and applied as follows: First, the Term Loan
Percentage (as defined below) of such Designated Prepayment shall be applied
to the repayment of the Term Loans (in inverse order of maturity of
installments thereof), with the remaining amount of such Designated Prepayment
being allocated and applied to the repayment of the Revolving Credit
Obligations in accordance with Section 3.02(b) (with, only in the case of a
Designated Prepayment pursuant to clauses (i), (iii) and (v) above, a
corresponding permanent reduction in the Revolving Credit Commitments equal to
the remaining amount of such Designated Prepayment); provided, however, that
upon written notice to the Administrative Agent as provided below any Term
Loan Lender, pursuant to the last three sentences of this clause (vii), may
refuse (a "Prepayment Refusal") to accept its Pro Rata Share of such
Designated Prepayment (the "Refused Prepayment Amount"); upon the occurrence
of a Prepayment Refusal, such Refused Prepayment Amount shall be allocated and
applied to the Revolving Credit Obligations in accordance with Section 3.02(b)
(with, only in the case of a Designated Prepayment pursuant to clauses (i),
(iii) and (v) above, a corresponding permanent reduction in the Revolving
Credit Commitments equal to 50% of the amount of such Refused Prepayment
Amount); provided further, however, in the event at the time of any
application of a Designated Prepayment pursuant to clauses (i) or (v) above
(and after giving effect to the application of such prepayment), the Leverage
Ratio of the Company for the twelve-month period ending on the last day of the
immediately preceding fiscal quarter of the Company is less than 3.00 to 1,
then such prepayment shall not result in a permanent reduction of the Revolving
Credit Commitments. As used in this Section 3.01(b)(vii), the term "Term Loan
Percentage" means the percentage obtained by dividing (A) the outstanding
principal amount of the Term Loans by (B) the outstanding principal amount of
the Term Loans plus the Revolving Credit Commitments in effect at such time.
Any such prepayments shall be applied first to Base Rate Loans (if in Dollars)
and then to any Eurocurrency Rate Loans with those Loans which have earlier
expiring Eurocurrency Interest Periods being repaid prior to those which have
later expiring Eurocurrency Interest Periods. The Administrative Agent shall
provide each Term Loan Lender with written notice of each Term Loan Lender's
Pro Rata Share of the Term Loan Percentage of any Designated Prepayment. Each
Term Loan Lender may make a Prepayment Refusal by delivering to the
Administrative Agent, within three Business Days of receipt of such notice
from the Administrative Agent, a written notice duly executed by such Term
Loan Lender stating such Term Loan Lender's determination to make a Prepayment
Refusal. The Administrative Agent may deem the failure of any Term Loan
Lender to deliver such notice within such time period as such Term Loan
Lender's agreement to accept such portion of any Designated Prepayment.
() Immediately, (A) if at any time the Revolving Credit
Obligations are greater than the Maximum Revolving Credit Amount, the
Borrowers shall make a mandatory repayment of the Revolving Credit Obligations
in an amount equal to such excess, such amount to be applied in accordance
with Section 3.02(b); (B) to the extent the Maximum Revolving Credit Amount is
at any time less than the amount of contingent Letter of Credit Obligations
outstanding at such time, the Borrowers shall deposit Cash Collateral with the
Administrative Agent in an amount equal to the amount by which such Letter of
Credit Obligations exceed such Maximum Revolving Credit Amount; (C) if at any
time the Dollar Equivalent of the aggregate outstanding amount of Revolving
Credit Obligations denominated in Alternative Currencies exceeds the
Multicurrency Sublimit for a period of 30 days, the Borrowers shall make a
mandatory repayment of the Multicurrency Loans in the amount of such excess on
the last day of such period and (D) if at any time the Dollar Equivalent of
aggregate outstanding amount of Revolving Credit Obligations owing by any
Foreign Borrower exceeds the Foreign Borrower Sublimit applicable to such
Borrower for a period of 30 days, such Borrower shall make a mandatory
repayment of Revolving Loans in the amount of such excess on the last day of
such period.
() Scheduled Revolving Credit Commitment Reductions. In
addition to any mandatory reductions in the Revolving Credit Commitments made
pursuant to Section 3.01(b)(vi), (i) the Revolving Credit Commitments shall be
permanently reduced by an additional $17,500,000 on each of July 10, 2001 and
July 10, 2002; provided, however, in the event on such date the Leverage Ratio
of the Company for the twelve-month period ending on the last day of the
immediately preceding fiscal quarter of the Company is less than 3.00 to 1,
then if not already permanently reduced pursuant to this Section 3.01, the
Revolving Credit Commitments shall be permanently reduced to (A) $160,000,000
on July 10, 2001 and (B) $140,000,000 on July 10, 2002; and (ii) the Revolving
Credit Commitments shall be permanently reduced on the sixth-month anniversary
of the Effective Date by an amount (not less than zero) equal to $45,000,000
less the amount of consideration and transaction costs paid in respect of the
consummation of any Proposed Acquisition or to be paid in respect of any
Proposed Acquisition for which definitive purchase documentation has been
executed and delivered during the period beginning on the Effective Date and
ending on such sixth-month anniversary.
3.0. Payments. () Manner and Time of Payment. All payments
of principal of and interest on the Loans and Reimbursement Obligations and
other Obligations (including, without limitation, fees and expenses) which are
payable to the Administrative Agent, the CoAgent, the Lenders or any Issuing
Bank shall be made without condition or reservation of right, in immediately
available funds in the applicable currency, delivered to the Administrative
Agent (or, in the case of Reimbursement Obligations, to the pertinent Issuing
Bank) not later than 12:00 noon (in the location of the Applicable Payment
Office) on the date and at the place due, to such account of the
Administrative Agent (or such Issuing Bank) as it may designate, for the
account of the Administrative Agent, the Lenders or such Issuing Bank.
Thereafter, payments in respect of any Swing Loans received by the
Administrative Agent shall be distributed to the Swing Loan Bank, payments in
respect of any Revolving Loan or Term Loan, as the case may be, received by
the Administrative Agent shall be distributed to each Lender in accordance
with its Pro Rata Share in accordance with the provisions of Section 3.02(b),
in each case on the date received, if received prior to 12:00 noon (in the
location of the Applicable Payment Office), and (except in the case of
repayment of Swing Loans) on the next succeeding Business Day, if received
thereafter, by the Administrative Agent.
() Apportionment of Payments. () Subject to the provisions of
Section 3.02(b)(ii) and (v), except as otherwise provided herein (A) all
payments of principal and interest (I) in respect of outstanding Term Loans
shall be allocated among such of the Term Loan Lenders as are entitled
thereto, in proportion to their respective Pro Rata Shares thereof and (II) in
respect of outstanding Revolving Loans, and all payments in respect of
Reimbursement Obligations, shall be allocated among such of the Revolving
Credit Lenders and Issuing Banks as are entitled thereto, in proportion to
their respective Pro Rata Shares thereof and (B) all payments of fees and all
other payments in respect of any other Obligations shall be allocated among
such of the Lenders and Issuing Banks as are entitled thereto, in proportion
to their respective applicable Pro Rata Shares. All such payments and any
other amounts received by the Administrative Agent from or for the benefit of
the Borrowers shall be applied first, to pay principal of and interest on any
portion of the Loans which the Administrative Agent may have advanced pursuant
to the express provisions of this Agreement on behalf of any Lender other than
the Lender then acting as Administrative Agent, for which the Administrative
Agent has not then been reimbursed by such Lender or the Borrowers, second, to
pay principal of and interest on any Protective Advance for which the
Administrative Agent has not then been paid by the Borrowers or reimbursed by
the Lenders, third, to pay all other Obligations then due and payable and
fourth, as the Company so designates. Except as set forth in Sections
3.01(a), (b) and (c) and unless otherwise designated by the Company, all
principal payments in respect of outstanding Swing Loans, Revolving Loans or
Term Loans, as the case may be, shall be applied first, to the outstanding
Swing Loans, second, to the outstanding Revolving Loans and third to the
outstanding Term Loans, in each case, first, to repay outstanding Base Rate
Loans, and then to repay outstanding Eurocurrency Rate Loans with those Loans
which have earlier expiring Eurocurrency Interest Periods being repaid prior
to those which have later expiring Eurocurrency Interest Periods.
Notwithstanding the foregoing provisions of Section 3.02(a) and this Section
3.02(b)(i), payments in any Alternative Currency received in respect of any
Multicurrency Loan denominated in such currency shall be distributed to each
Multicurrency Lender in accordance with its Multicurrency Pro Rata Share.
() After the occurrence and during the continuance of an Event
of Default, the Administrative Agent may, and shall upon the acceleration of
the Obligations pursuant to Section 11.02(a), apply all payments in respect of
any Obligations and all proceeds of Collateral in the following order;
provided that payments made by a Foreign Borrower shall be applied first to
the Obligations of such Foreign Borrower and payments made in any Alternative
Currency shall be applied first to obligations denominated in such Alternative
Currency:
() first, to pay interest on and then principal of any portion
of the Revolving Loans which the Administrative Agent may have
advanced on behalf of any Lender for which the Administrative Agent
has not then been reimbursed by such Lender or the Borrowers;
() second, to pay interest on and then principal of first any
outstanding Protective Advance and then any Swing Loan;
() third, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Administrative Agent;
() fourth, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the CoAgents, the Lenders
and the Issuing Banks;
() fifth, to pay Obligations in respect of any fees then due to
the Administrative Agent, the CoAgents, the Lenders and the Issuing
Banks;
() sixth, to pay interest due in respect of the Loans and
Reimbursement Obligations;
() seventh, to pay or prepay (or, to the extent such
Obligations are contingent, provide Cash Collateral pursuant to
Section 11.02(b) in respect of) principal outstanding on Loans and all
outstanding Letter of Credit Obligations;
() eighth, to the ratable payment of Interest Rate Contracts
and Currency Agreements to which any of the Lenders or any Affiliate
of the Lenders is a party; and
() ninth, to the ratable payment of all other Obligations;
provided, however, if sufficient funds are not available to fund the payments
to be made in respect of any of the Obligations described in any of the
foregoing clauses (A) through (I), the available funds being applied with
respect to any such Obligations referred to in any one such clause (unless
otherwise specified in such clause) shall be allocated in accordance with the
order of priority established by such clause to the payment of such
Obligations ratably, based on the proportion of the Administrative Agent's and
each CoAgent's, Lender's or Issuing Bank's interest in the aggregate
outstanding Obligations described in such clause; and provided further,
however, in the event of any Non-Participating Multicurrency Lender's Pro Rata
Share of the Obligations allocable to the Revolving Credit Obligations
referred to in clause (F) or (G) above is less than its interest in the
aggregate outstanding Revolving Credit Obligations described in such clauses,
then the Administrative Agent shall apply the available funds with respect to
any such Revolving Credit Obligations first to the Multicurrency Lenders in
accordance with their respective Multicurrency Pro Rata Shares until each
Revolving Credit Lender's remaining interest in such Revolving Credit
Obligations is equal to such Revolving Credit Lender's Pro Rata Share of such
Revolving Credit Obligations (it being understood and agreed that such
reallocation of amounts shall not affect in any way the amount of available
funds that are applied to the Obligations owing to the Term Loan Lenders in
respect of the Term Loans). Notwithstanding the foregoing proviso, in the
event any Non-Participating Multicurrency Lender's Pro Rata Share of the
Revolving Credit Obligations is less than its interest in the aggregate
outstanding Revolving Credit Obligations, the Administrative Agent may, and
shall at the request of the Multicurrency Lenders whose Multicurrency Pro Rata
Shares exceed 51%, require each Non-Participating Multicurrency Lender (and
each Non-Participating Multicurrency hereby agrees) to purchase, without
recourse or warranty, an undivided interest and participation in the
outstanding Dollar-denominated Revolving Loans owing to the Multicurrency
Lenders so that, after giving effect to such purchases, each Revolving Credit
Lender's interest in the Revolving Credit Obligations is equal to such
Revolving Credit Lender's Pro Rata Share of such Obligations at the time of
such purchase.
The order of priority set forth in this Section 3.02(b)(ii) and the related
provisions hereof are set forth solely to determine the rights and priorities
of the Administrative Agent, the CoAgents, the Lenders, the Issuing Banks and
other Holders as among themselves. The order of priority set forth in clauses
(A) through (I) of this Section 3.02(b)(ii) may at any time and from time to
time be changed by the agreement of the Requisite Lenders without necessity of
notice to or consent of or approval by the Borrower, any Holder which is not a
Lender or Issuing Bank, or any other Person; provided, however, the order of
priority set forth in clauses (A) through (E) of this Section 3.02(b)(ii) may
not be changed without the prior written consent of the Administrative Agent.
() All payments of principal on the Swing Loans, Protective
Advances, Reimbursement Obligations, interest, fees and other sums payable in
respect of the Revolving Loans may, at the option of the Administrative Agent,
be paid from the proceeds of the Revolving Loans. The Borrower hereby
authorizes the Swing Loan Bank to make pursuant to Section 2.03(a) and the
Lenders to make pursuant to Section 2.02(a) in Dollars, from time to time in
the Swing Loan Bank's or the Administrative Agent's discretion, Revolving
Loans which are in the amounts of any and all principal on the Swing Loans,
interest, fees and other sums payable in respect of the Revolving Loans (or
the Dollar Equivalent thereof if not denominated in Dollars), and further
authorizes the Administrative Agent (A) to give the Lenders notice of any
Borrowing with respect to such Revolving Loans and (B) to distribute the
proceeds of such Revolving Loans to pay such amounts. The Administrative
Agent agrees to give the Borrower notice of any such Borrowing, but the
failure to give such notice shall in no way limit the rights of the
Administrative Agent in the preceding sentence. The Borrower agrees that all
such Revolving Loans so made shall be deemed to have been requested by it and
directs that all proceeds thereof shall be used to pay such amounts. All such
Revolving Loans shall be Base Rate Loans.
() The Administrative Agent shall promptly distribute to each
Lender and Issuing Bank at its primary address set forth on the appropriate
signature page hereof or the signature page to the Assignment and Acceptance
by which it became a Lender or Issuing Bank, or to each Lender, Issuing Bank
or other Holder at such other address as such Lender, Issuing Bank or other
Holder may request in writing, such funds as such Person may be entitled to
receive, subject to the provisions of Article XII; provided that, as between
the Holders and the Administrative Agent, the Administrative Agent shall under
no circumstances be bound to inquire into or determine the validity, scope or
priority of any interest or entitlement of any Holder and may suspend all
payments or seek appropriate relief (including, without limitation,
instructions from the Requisite Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby.
() If any Lender fails to fund its Pro Rata Share of any
Revolving Loan Borrowing requested by a Borrower which such Lender is
obligated to fund under the terms hereof (the funded portion of such Revolving
Loan Borrowing being hereinafter referred to as a "Non Pro Rata Loan"),
excluding any such Lender who has delivered to the Administrative Agent
written notice that one or more of the conditions precedent contained in
Section 5.02 shall not on the date of such request be satisfied and until such
conditions are satisfied, then until the earlier of such Lender's cure of such
failure and the termination of the Revolving Credit Commitments, the proceeds
of all amounts thereafter repaid to the Administrative Agent by such Borrower
and otherwise required to be applied to such Lender's share of all other
Obligations pursuant to the terms hereof shall be deemed to have been advanced
to such Borrower by the Administrative Agent on behalf of such Lender to cure,
in full or in part, such failure by such Lender, but shall nevertheless be
deemed to have been paid to such Lender in satisfaction of such other
Obligations. Notwithstanding anything contained herein to the contrary:
() the foregoing provisions of this Section 3.02(b)(v) shall
apply only with respect to the proceeds of payments of Obligations;
() a Lender shall be deemed to have cured its failure to fund
its Pro Rata Share of any Revolving Loan at such time as an amount
equal to such Lender's original Pro Rata Share of the requested
principal portion of such Revolving Loan is fully funded to such
Borrower, whether made by such Lender itself or by operation of the
terms of this Section 3.02(b)(v), and whether or not the Non Pro Rata
Loan with respect thereto has been repaid;
() amounts advanced to such Borrower to cure, in full or in
part, any such Lender's failure to fund its Pro Rata Share of any
Revolving Loan Borrowing ("Cure Loans") shall bear interest at the
rate applicable to the other Revolving Loans comprising such Borrowing
and shall be treated as Revolving Loans comprising such Borrowing for
all purposes herein;
() regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions of
such Borrower as to its desired application, all repayments of
principal which, in accordance with the other terms of this Section
3.02, would be applied to the outstanding Revolving Loans shall be
applied first, ratably to all Revolving Loans constituting Non Pro
Rata Loans, second, ratably to Revolving Loans other than those
constituting Non Pro Rata Loans or Cure Loans and, third, ratably to
Revolving Loans constituting Cure Loans; and
() No Lender shall be relieved of any obligation such Lender
may have to the Borrowers under the terms of this Agreement as a
result of the provisions of this Section 3.02(b)(v).
() Payments on Non-Business Days. Whenever any payment to be
made by the Borrowers hereunder or under the Notes is stated to be due on a
day which is not a Business Day, the payment shall instead be due on the next
succeeding Business Day (or, as set forth in Section 4.02(b)(iv), the next
preceding Business Day), and any such extension of time shall be included in
the computation of the payment of interest and fees hereunder.
() Payment Currency. Except as expressly set forth herein to
the contrary, all payments made by any Borrower in respect of principal and
interest on the Loans and Reimbursement Obligations shall be made (i) with
respect to Loans and Reimbursement Obligations denominated in Dollars, in
Dollars, and (ii) with respect to Multicurrency Loans or Reimbursement
Obligations denominated in an Alternative Currency, in the Alternative
Currency in which such Loan or the Letter of Credit giving rise to such
Reimbursement Obligation was made.
3.0. Taxes.
() Payment of Taxes. Any and all payments by any Borrower
hereunder or under any Note or other document evidencing any Obligations shall
be made free and clear of and without reduction for any and all taxes, levies,
imposts, deductions, charges, withholdings, and all stamp or documentary
taxes, excise taxes, ad valorem taxes, and other taxes imposed on the value of
the Property of the Company and its Subsidiaries, charges or levies which
arise from the execution, delivery or registration, or from payment or
performance under, or otherwise with respect to, any of the Loan Documents or
the Revolving Credit Commitments and all other liabilities with respect
thereto excluding, in the case of each Lender, each Issuing Bank, each CoAgent
and the Administrative Agent, taxes imposed on its income, capital, profits or
gains and franchise taxes imposed on it by (i) the United States, except
certain withholding taxes contemplated pursuant to Section 3.03(d)(ii)(C),
(ii) the Governmental Authority of the jurisdiction in which such Lender's
Applicable Lending Office is located or any political subdivision thereof or
(iii) the Governmental Authority of the jurisdiction in which such Person is
organized, managed and controlled or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If any Borrower
shall be required by law to withhold or deduct any Taxes from or in respect of
any sum payable hereunder or under any such Note or document to any Lender,
any Issuing Bank, any CoAgent or the Administrative Agent, (x) the sum payable
to such Lender, such Issuing Bank, such CoAgent or the Administrative Agent
shall be increased as may be necessary so that, after making all required
withholding or deductions of Taxes (including withholding or deductions of
Taxes applicable to additional sums payable under this Section 3.03(a)), such
Lender, such Issuing Bank, such CoAgent or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such withholding or deductions of Taxes been made, (y) such Borrower shall
make such withholding or deductions, and (z) such Borrower shall pay the full
amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law.
() Indemnification. Each Borrower will indemnify each Lender,
each Issuing Bank, each CoAgent and the Administrative Agent against, and
reimburse each on demand for, the full amount of all Taxes (including, without
limitation, any Taxes imposed by any Governmental Authority on amounts payable
under this Section 3.03(b) and any additional income or franchise taxes
resulting therefrom) incurred or paid by such Lender, such Issuing Bank, such
CoAgent or the Administrative Agent (as the case may be) or any of their
respective Affiliates and any liability (including penalties, interest, and
reasonable out-of-pocket expenses paid to third parties) arising therefrom or
with respect thereto, whether or not such Taxes were lawfully payable. A
certificate as to any additional amount payable to any Person under this
Section 3.03(b) submitted by it to such Borrower shall, absent manifest error,
be final, conclusive and binding upon all parties hereto. In determining such
additional amount, such Person shall take into account and reduce the amount
otherwise payable by such Borrower pursuant to this Section 3.03(b) by an
amount equal to the tax credits and other tax benefits actually utilized (as
determined by such Person in its reasonable judgment). Each Lender, each
CoAgent, the Administrative Agent and each Issuing Bank agrees, within a
reasonable time after receiving a written request from a Borrower, to provide
such Borrower and the Administrative Agent with such certificates as are
reasonably required, and to take such other actions as are reasonably
necessary to claim such exemptions as such Lender, such CoAgent, the
Administrative Agent, such Issuing Bank or Affiliate may be entitled to claim
in respect of all or a portion of any Taxes which are otherwise required to be
paid or deducted or withheld pursuant to this Section 3.03 in respect of any
payments under this Agreement or under the Notes.
() Receipts. Within thirty (30) days after the date of any
payment of Taxes by any Borrower, the Company will furnish to the
Administrative Agent, at its address referred to in Section 13.08, the
original or a copy of a receipt, if any, or other documentation reasonably
satisfactory to the Administrative Agent, evidencing payment thereof. The
Company shall furnish to the Administrative Agent upon the request of the
Administrative Agent from time to time an Officer's Certificate stating that
all Taxes of which it has knowledge are due have been paid.
() Foreign Bank Certifications. () Each Lender or Issuing
Bank that is not created or organized under the laws of the United States or a
political subdivision thereof has delivered to the Company and the
Administrative Agent on the date on which such Lender became a Lender or such
Issuing Bank became an Issuing Bank or shall deliver to the Company on the
date such Lender becomes a Lender or such Issuing Bank becomes an Issuing
Bank, if such date is after the Effective Date, (A) a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender
or Issuing Bank to the effect that such Lender or Issuing Bank is eligible to
receive payments hereunder and under the Notes without deduction or
withholding (or with reduced deduction or withholding) of United States
federal income tax (I) under the provisions of an applicable tax treaty
concluded by the United States (in which case the certificate shall be
accompanied by two duly completed copies of IRS Form 1001 (or any successor or
substitute form or forms)) or (II) under Section 1441(c)(1) as modified for
purposes of Section 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms)) or (B) in the case of a Lender
or Issuing Bank claiming exemption from United States withholding tax under
Section 871(h) or 881(c) of the Internal Revenue Code with respect to payments
of "portfolio interest", (I) a certificate representing that such Lender is
not a "bank" acquiring the Note in connection with "an extension of credit
made pursuant to a loan agreement entered into in the ordinary course of its
trade or business" (within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code), is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of the Company, and is not a
controlled foreign corporation related to the Company (within the meaning of
Section 864(d)(4) of the Internal Revenue Code) and (II) two duly completed
copies of IRS Form W8 (or any successor or substitute form or forms);
() Each Lender and each Issuing Bank further agrees to deliver
to the Company and the Administrative Agent, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender or such
Issuing Bank before or promptly upon the occurrence of any event requiring a
change in the most recent certificate previously delivered by it to the
Company and the Administrative Agent pursuant to this Section 3.03(d)
(including, but not limited to, a change in such Lender's or such Issuing
Bank's lending office). Each certificate required to be delivered pursuant to
this Section 3.03(d)(ii) shall certify as to one of the following:
() that such Lender or such Issuing Bank can continue to
receive payments hereunder and under the Notes without deduction or
withholding of United States federal income tax;
() that such Lender or such Issuing Bank cannot continue to
receive payments hereunder and under the Notes without deduction or
withholding of United States federal income tax as specified therein
but does not require additional payments pursuant to Section 3.03(a)
because it is entitled to recover the full amount of any such
deduction or withholding from a source other than the Borrowers;
() that such Lender or Issuing Bank is no longer capable of
receiving payments hereunder and under the Notes without deduction or
withholding (or with reduced deduction or withholding) of United
States federal income tax as specified therein by reason of a change
in law (including, without limitation, the Internal Revenue Code,
applicable tax treaty, regulation or official interpretation thereof)
after the later of the Effective Date or the date on which such Lender
became a Lender or such Issuing Bank became an Issuing Bank and that
it is not capable of recovering the full amount of the same from a
source other than the Borrowers; or
() that such Lender or such Issuing Bank is no longer capable
of receiving payments hereunder without deduction or withholding (or
with reduced deduction or withholding) of United States federal income
tax as specified therein other than by reason of a change in law
(including the Internal Revenue Code, applicable tax treaty,
regulation, or official interpretation thereof) after the later of the
Effective Date or the date on which such Lender became a Lender or
such Issuing Bank became an Issuing Bank.
Each Lender and each Issuing Bank agrees to deliver to the Company and the
Administrative Agent further duly completed copies of the abovementioned IRS
forms on or before the earlier of (x) the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding from United States federal income tax
and (y) fifteen (15) days after the occurrence of any event requiring a change
in the most recent form previously delivered by such Lender or such Issuing
Bank to the Company and the Administrative Agent, unless any change in law or
event has occurred prior to the date on which any such delivery would
otherwise be required and the Lender or the Issuing Bank promptly advises the
Company that it is not capable of receiving payments hereunder or under the
Notes without any deduction or withholding of United States federal income tax.
() Qualifying Lenders. In connection with the Revolving Loans
made by each Lender to the Foreign Borrowers, each Lender represents to the
Administrative Agent and First Chicago London that it (or its Eurocurrency
Affiliate through which it is making such Revolving Loans) is a Qualifying
Lender.
3.0. Increased Capital. If after the date hereof any Lender
or Issuing Bank determines that (i) the adoption or implementation of or any
change in or in the interpretation or administration of any law or regulation
or any guideline or request from any central bank, the NAIC or other
Governmental Authority or quasi-governmental authority exercising jurisdiction,
power or control over any Lender, Issuing Bank or banks or financial
institutions generally (whether or not having the force of law), compliance
with which affects or would affect the amount of capital required or expected
to be maintained by such Lender or Issuing Bank or any corporation controlling
such Lender or Issuing Bank and (ii) the amount of such capital is increased
by or based upon (A) the making or maintenance by any Lender of its Loans, any
Lender's participation in or obligation to participate in the Loans, Letters
of Credit or other advances made hereunder or the existence of any Lender's
obligation to make Loans or (B) the issuance or maintenance by any Issuing
Bank of, or the existence of any Issuing Bank's obligation to issue, Letters
of Credit, then, in any such case, upon written demand by such Lender or
Issuing Bank (with a copy of such demand to the Administrative Agent), the
Company shall immediately pay to the Administrative Agent for the account of
such Lender or Issuing Bank, from time to time as specified by such Lender or
Issuing Bank, additional amounts sufficient to compensate such Lender or
Issuing Bank or such corporation therefor. Such demand shall be accompanied
by a statement as to the amount of such compensation and include a detailed
summary of the basis for such demand with detailed calculations. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
3.0. Right to Remove Affected Lender. In the event that
(i) the Company receives certification of the type described in Section
3.03(d)(ii)(C) or notice under Section 5.02(c) from any Lender or any Issuing
Bank, (ii) any Lender gives notice to the Administrative Agent pursuant to
Section 2.02(c)(ii) (and the circumstances specified in such notice are not
generally applicable to the Lenders) or (iii) any Lender makes a demand for
compensation from any Borrower pursuant to Section 3.04 (if such increase in
capital requirements is not generally applicable to the Lenders) or Section
4.01(f), the Company, at its option and in its sole discretion, shall have the
right to designate an Eligible Assignee which is not an Affiliate of the
Company and which is reasonably acceptable to the Administrative Agent, to
purchase for cash, pursuant to an Assignment and Acceptance, the outstanding
Loans and Reimbursement Obligations (if any) of such Lender or Issuing Bank
and to assume all of such Lender's or Issuing Bank's other rights and
obligations (including, without limitation, such Lender's obligation to
participate in all outstanding Letters of Credit pursuant to Section 2.04(e))
hereunder without recourse to or warranty by, or expense to, such Lender or
Issuing Bank, for a purchase price equal to the principal amount of all of
such Lender's outstanding Loans or such Issuing Bank's Reimbursement
Obligations plus any accrued but unpaid interest thereon and the accrued but
unpaid Unused Commitment Fees and Letter of Credit Fees in respect of that
Lender's Revolving Credit Commitment hereunder or any accrued but unpaid
Letter of Credit Fees in respect of that Issuing Bank's outstanding Letters of
Credit and any other amounts that may be owing to such Lender or Issuing Bank
hereunder. The Company agrees to pay to such Lender any breakage costs
incurred by such Lender pursuant to Section 4.02(f).
3.0. European Economic and Monetary Union. () Definitions.
In this Section 3.06 and in each other provision of this Agreement and any
other Loan Document to which reference is made in this Section 3.06 expressly
or impliedly, the following terms have the meanings given to them in this
Section 3.06:
"commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU (expected to be January 1,
1999) or the date on which circumstances arise which (in the opinion
of the Administrative Agent) have substantially the same effect and
result in substantially the same consequences as commencement of the
third stage of EMU as contemplated by the Treaty on European Union;
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union;
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of
EMU;
"euro" means the single currency of participating member
states of the European Union;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency (other
than a euro unit) of a participating member state;
"participating member state" means each state so described
in any EMU legislation; and
"Treaty on European Union" means the Treaty of Rome of
March 25, 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the
Maastricht Treaty (which was signed at Maastricht on February 7, 1992,
and came into force on November 1, 1993), as amended from time to
time.
() Effectiveness of Provisions. The provisions of subsections
(c) to (j) below (inclusive) shall be effective at and from the commencement
of the third stage of EMU; provided, however, that if and to the extent that
any such provision relates to any state (or the currency of such state) that
is not a participating member state on the commencement of the third stage of
EMU, such provision shall become effective in relation to such state (and the
currency of such state) at and from the date on which such state becomes a
participating member state.
() Redenomination and Alternative Currencies. Each obligation
(including each Obligation and Liability under this Agreement or any other
Loan Document of a party to this Agreement or any other Loan Document which
has been denominated in the national currency unit of a participating member
state) shall be redenominated into the euro unit in accordance with EMU
legislation; provided, however, that if and to the extent that any EMU
legislation provides that following the commencement of the third stage of EMU
an amount denominated either in euro or in the national currency unit of
participating member state and payable within that participating member state
by crediting an account of the creditor can be paid by the debtor either in
the euro unit or in that national currency unit, each party to this Agreement
and each other Loan Document shall be entitled to pay or repay any such amount
either in the euro unit or in such national currency unit.
() Loans. Any Loan in the currency of a participating member
state shall be made in the euro unit.
() Business Days. With respect to any amount denominated or to
be denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in London,
Chicago, New York City and Frankfurt am Main, Germany (or such principal
financial center or centers in such participating member state or states as the
Administrative Agent may from time to time nominate for this purpose);
provided, however, that the Administrative Agent may by notice to the Loan
Parties and the Lenders specify changes to the definition of Business Day as
applicable to the euro or one or more other currencies which it reasonably
determines are necessary to reflect changes in market practices and/or
operational requirements in connection therewith.
() Payments to the Administrative Agent. Amounts payable by a
Borrower or Guarantor under any Loan Document shall be construed so that, in
relation to the payment of any amount of euro units or national currency
units, such amount shall be made available to the Administrative Agent in
immediately available, freely transferable, cleared funds to such account with
such bank in Frankfurt am Main, Germany (or such other principal financial
center in such participating member state as the Administrative Agent may from
time to time nominate for this purpose) as the Administrative Agent shall from
time to time nominate for this purpose.
() Payments by the Administrative Agent to the Lenders. Except
as otherwise contemplated by subsection (c) above, any amount payable by the
Administrative Agent to the Lenders under this Agreement in the currency of a
participating member state shall be paid in the euro unit.
() Payments by the Administrative Agent Generally. With
respect to the payment of any amount denominated in the euro or in a national
currency unit, the Administrative Agent shall not be liable to any of the
Borrowers, Guarantors or any of the Lenders in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any account of
any amount required by any Loan Document to be paid by the Administrative
Agent if the Administrative Agent shall have taken all relevant steps to
achieve, on the date required by such Loan Document, the payment of such
amount in immediately available, freely transferrable, cleared funds (in the
euro unit or, as the case may be, in a national currency unit) to the account
with the bank in the principal financial center in the participating member
state which the relevant Borrower, Guarantor or Lender, as the case may be,
shall have specified for such purpose. In this subsection (h), `all relevant
steps' means all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or settlement system as
the Administrative Agent may from time to time determine for the purpose of
clearing or settling payments of the euro.
() Basis of Accrual. If the basis of accrual of interest or
fees expressed in this Agreement or any other Loan Document with respect to
the currency of any state that becomes a participating state shall be
inconsistent with any convention or practice in the London Interbank Market
for the basis of accrual of interest or fees in respect of the euro, such
convention or practice shall replace such expressed basis effective as of and
from the date on which such state becomes a participating member state;
provided, however, that if any Loan in the currency of such state is
outstanding immediately prior to such date, such replacement shall take
effect, with respect to such Loan, at the end of the then current Eurocurrency
Interest Period.
() Rounding and Other Consequential Changes. Without prejudice
and in addition to any method of conversion or rounding prescribed by any EMU
legislation and without prejudice to the respective liabilities for
indebtedness of any Borrower or Guarantor to any Lender and any Lender to any
Borrower or Guarantor under or pursuant to any Loan Document:
() each reference in each Loan Document to a minimum amount (or
an integral multiple thereof) in a national currency unit to be paid
to or by the Administrative Agent shall be replaced by a reference to
such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent may
from time to time specify; and
() except as expressly provided in this Section 3.06, each
provision of each Loan Document shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in participating member
states.
ARTICLE
INTEREST AND FEES
4.0. Interest on the Loans and Other Obligations. () Rate of
Interest. All Loans and the outstanding principal balance of all other
Obligations shall bear interest on the unpaid principal amount thereof from
the date such Loans are made and such other Obligations are due and payable
until paid in full, except as otherwise provided in Section 4.01(d), as
follows:
() If a Base Rate Loan or such other Obligation, at a rate per
annum equal to the sum of (A) the Base Rate as in effect from time to
time as interest accrues and (B) the Applicable Base Rate Margin in
effect from time to time; and
() If a Eurocurrency Rate Loan, at a rate per annum equal to
the sum of (A) the Eurocurrency Rate determined for the applicable
Eurocurrency Interest Period, plus (B) the Applicable Eurocurrency
Rate Margin in effect from time to time during such Eurocurrency
Interest Period.
The applicable basis for determining the rate of interest on the Loans shall
be selected by the Company at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Company to the Administrative
Agent; provided, however, the Company may not select the Eurocurrency Rate as
the applicable basis for determining the rate of interest on such a Loan if
(x) such Loan is to be made on the Effective Date or (y) at the time of such
selection an Event of Default has occurred and is continuing. If on any day
any Loan is outstanding with respect to which notice has not been timely
delivered to the Administrative Agent in accordance with the terms hereof
specifying the basis for determining the rate of interest on that day, then
for that day interest on that Loan shall be determined by reference to the
Base Rate (if denominated in Dollars) or the Eurocurrency Rate with a
Eurocurrency Interest Period of one month (if denominated in an Alternative
Currency).
() Interest Payments. () Interest accrued on each Base Rate
Loan shall be payable in arrears (A) on the first day of each calendar month
for the preceding calendar month, commencing on the first such day following
the making of such Base Rate Loan and (B) if not theretofore paid in full, at
maturity (whether by acceleration or otherwise) of such Base Rate Loan.
() Interest accrued on each Eurocurrency Rate Loan shall be
payable in arrears (A) on each Eurocurrency Interest Payment Date applicable
to such Loan and (B) if not theretofore paid in full, at maturity (whether by
acceleration or otherwise) of such Eurocurrency Rate Loan.
() Interest accrued on the principal balance of all other
Obligations shall be payable in arrears (A) on the first day of each month,
commencing on the first such day following the incurrence of such Obligation
and (B) if not theretofore paid in full, at the time such other Obligation
becomes due and payable (whether by acceleration or otherwise).
() Conversion or Continuation. () The applicable Borrower
shall have the option (A) to convert at any time all or any part of
outstanding Base Rate Loans (other than Swing Loans) to Eurocurrency Rate
Loans; (B) to convert all or any part of outstanding Eurocurrency Rate Loans
denominated in Dollars having Eurocurrency Interest Periods which expire on
the same date to Base Rate Loans on such expiration date; and (C) to continue
all or any part of outstanding Eurocurrency Rate Loans having Eurocurrency
Interest Periods which expire on the same date as Eurocurrency Rate Loans, and
the succeeding Eurocurrency Interest Period of such continued Loans shall
commence on such expiration date; provided, however, no such outstanding Loan
may be continued as, or be converted into, a Eurocurrency Rate Loan (i) if the
continuation of, or the conversion into, would violate any of the provisions
of Section 4.02 or (ii) if an Event of Default has occurred and is continuing;
provided, further, however, during the continuance of an Event of Default,
Eurocurrency Rate Loans denominated in Alternative Currencies shall be
continued as Eurocurrency Rate Loans with Eurocurrency Interest Periods
determined by the Administrative Agent. Any conversion into or continuation of
Eurocurrency Rate Loans under this Section 4.01(c) shall, in the case of such
Loans denominated in Dollars, be in a minimum amount of $5,000,000 and in
integral multiples of $1,000,000 in excess of that amount and, in the case of
such Loans denominated in Alternative Currencies, in an aggregate minimum
amount equal to an integral multiple of 100,000 units of such currency and
(converted to the Dollar Equivalent thereof) equal to or greater than
$1,000,000. Notwithstanding anything in this Agreement to the contrary,
nothing in the Agreement shall permit (i) the conversion or redenomination of
any Base Rate Loan denominated in Dollars into a Eurocurrency Rate Loan
denominated in any currency other than Dollars and (ii) the conversion or
redenomination of any Eurocurrency Rate Loan denominated in any currency into
a Eurocurrency Rate Loan denominated into any other currency.
() To convert or continue a Loan under Section 4.01(c)(i), the
Company shall deliver a Notice of Conversion/Continuation to the
Administrative Agent (with a copy to First Chicago London, in the case of a
conversion or continuation of a Multicurrency Loan) no later than 11:00 a.m.
(Chicago time) (or 2:00 p.m. London time, as applicable) at least three (3)
Business Days in advance of the proposed conversion/continuation date. A
Notice of Conversion/Continuation shall specify (A) the proposed
conversion/continuation date (which shall be a Business Day), (B) the
principal amount and currency of the Loan to be converted/continued,
(C) whether such Loan shall be converted and/or continued and (D) in the case
of a conversion to, or continuation of, a Eurocurrency Rate Loan, the requested
Eurocurrency Interest Period. In lieu of delivering a Notice of
Conversion/Continuation, the Company may give the Administrative Agent (and
First Chicago London, in the case of a conversion or continuation of a
Multicurrency Loan) telephonic notice of any proposed conversion/continuation
by the time required under this Section 4.01(c)(ii), and such notice shall be
confirmed in writing delivered to the Administrative Agent promptly (but in no
event later than 4:00 p.m. (Chicago time) on the same day). Promptly after
receipt of a Notice of Conversion/Continuation under this Section 4.01(c)(ii)
(or telephonic notice in lieu thereof), the Administrative Agent shall notify
each Lender by telex or telecopy, or other similar form of transmission, of
the proposed conversion/continuation. Any Notice of Conversion/Continuation
for conversion to, or continuation of, a Loan (or telephonic notice in lieu
thereof) shall be irrevocable, and the Borrowers shall be bound to convert or
continue in accordance therewith.
() Default Interest. Notwithstanding the rates of interest
specified in Section 4.01(a) or elsewhere herein, effective immediately upon
the occurrence of any Event of Default and for as long thereafter as such
Event of Default shall be continuing, the principal balance of all Loans and,
to the extent permitted by law, interest accrued but unpaid thereon shall bear
interest at a rate which is two percent (2.0%) per annum in excess of the rate
of interest applicable to such Loans from time to time (unless waived in
writing by the Requisite Lenders).
() Computation of Interest. Interest on (i) Base Rate Loans
and all other Obligations shall be computed on the basis of the actual number
of days elapsed in the period during which interest accrues and a 365/366 day
year and (ii) Eurocurrency Rate Loans shall be computed on the basis of the
actual number of days elapsed in the period during which interest accrues and
a year of 360 days or, in the case of any Alternative Currency, as market
practice may differ for such currency, but in no event less than a year of 360
days. In computing interest on any Loan, the date of the making of the Loan
shall be included and the date of payment shall be excluded.
() Changes; Legal Restrictions. If after the date hereof any
Lender or Issuing Bank determines that the adoption or implementation of or
any change in or in the interpretation or administration of any law or
regulation or any guideline or request from any central bank or other
Governmental Authority or quasi-governmental authority exercising
jurisdiction, power or control over any Lender, Issuing Bank or over banks or
financial institutions generally (whether or not having the force of law),
compliance with which, in each case after the date hereof:
() subjects a Lender or an Issuing Bank (or its Applicable
Lending Office) to charges (other than Taxes) of any kind which is
applicable to the Commitments of the Lenders and/or the Issuing Banks
to make Eurocurrency Rate Loans (including, without limitation, any
conversion of any Loan denominated in an Alternative Currency (other
than the euro) into a Loan denominated in euros) or to issue and/or
participate in Letters of Credit or changes the basis of taxation of
payments to that Lender or Issuing Bank of principal, fees, interest,
or any other amount payable hereunder with respect to Eurocurrency
Rate Loans or Letters of Credit; or
() imposes, modifies, or holds applicable, any reserve
(other than reserves taken into account in calculating the
Eurocurrency Rate), special deposit, compulsory loan, FDIC insurance
or similar requirement against assets held by, or deposits or other
liabilities (including those pertaining to Letters of Credit) in or
for the account of, advances or loans by, commitments made, or other
credit extended by, or any other acquisition of funds by, a Lender or
an Issuing Bank or any Applicable Lending Office or Eurocurrency
Affiliate of that Lender or Issuing Bank;
and the result of any of the foregoing is to increase the cost to that Lender
or Issuing Bank of making, renewing or maintaining the Loans (including,
without limitation, any conversion of any Loan denominated in an Alternative
Currency (other than the euro) into a Loan denominated in euro) or its
Commitments or issuing or participating in the Letters of Credit or to reduce
any amount receivable thereunder; then, in any such case, upon written demand
by such Lender or Issuing Bank (with a copy of such demand to the
Administrative Agent), the Company shall immediately pay to the Administrative
Agent for the account of such Lender or Issuing Bank, from time to time as
specified by such Lender or Issuing Bank, such amount or amounts as may be
necessary to compensate such Lender or Issuing Bank or its Eurocurrency
Affiliate for any such additional cost incurred or reduced amount received.
Such demand shall be accompanied by a statement as to the amount of such
compensation and include a detailed summary of the basis for such demand.
Such statement shall be conclusive and binding for all purposes, absent
manifest error.
() Confirmation of Eurocurrency Rate. Upon the reasonable
request of the Company from time to time, the Administrative Agent shall
promptly provide to the Company such information with respect to the
applicable Eurocurrency Rate as may be so requested.
4.0. Special Provisions Governing Eurocurrency Rate Loans.
With respect to Eurocurrency Rate Loans:
() Amount of Advance. Each Eurocurrency Rate Loan shall be in
the minimum amount specified in Section 2.02(a).
() Determination of Eurocurrency Interest Period. By giving
notice as set forth in Section 2.02(b) (with respect to a Borrowing of a
Eurocurrency Rate Loan) or Section 4.01(c) (with respect to a conversion into
or continuation of a Eurocurrency Rate Loan), the Company shall have the
option, subject to the other provisions of this Section 4.02, to select an
interest period (each a "Eurocurrency Interest Period") to apply to the Loans
described in such notice, subject to the following provisions:
() Except as otherwise agreed pursuant to Section 4.01(a), the
Company may only select, as to a particular Borrowing of Eurocurrency
Rate Loans, a Eurocurrency Interest Period of either one, two, three
or six months in duration; provided, however, that the Company may
request a Eurocurrency Interest Period of less than one month with
respect to Multicurrency Loans only if (A) such request is approved by
the Administrative Agent and (B) such Eurocurrency Interest Period is
reasonably available to the Multicurrency Lenders;
() In the case of immediately successive Eurocurrency Interest
Periods applicable to a Borrowing of Eurocurrency Rate Loans, each
successive Eurocurrency Interest Period shall commence on the day on which
the next preceding Eurocurrency Interest Period expires;
() If any Eurocurrency Interest Period would otherwise expire
on a day which is not a Business Day, such Eurocurrency Interest
Period shall be extended to expire on the next succeeding Business Day
if the next succeeding Business Day occurs in the same calendar month,
and if there shall be no succeeding Business Day in such calendar
month, such Eurocurrency Interest Period shall expire on the
immediately preceding Business Day;
() The Company may not select a Eurocurrency Interest Period as
to any Loan if such Eurocurrency Interest Period terminates later than
the Revolving Credit Termination Date or the Term Loan Maturity Date,
as the case may be;
() The Company may not select a Eurocurrency Interest Period
with respect to any portion of principal of a Term Loan which extends
beyond a date on which the Company is required to make a scheduled
payment of such portion of principal; and
() There shall be no more than fifteen (15) Eurocurrency
Interest Periods in effect at any one time.
() Determination of Interest Rate. As soon as practicable on
the second Business Day prior to the first day of each Eurocurrency Interest
Period (the "Eurocurrency Interest Rate Determination Date"), the
Administrative Agent shall determine (pursuant to the procedures set forth in
the definition of "Eurocurrency Rate") the interest rate which shall apply to
Eurocurrency Rate Loans, for which an interest rate is then being determined
for the applicable Eurocurrency Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to the Borrower and
to each Lender. The Administrative Agent's determination shall be presumed to
be correct, absent manifest error, and shall be binding upon the Borrowers.
() Interest Rate Unascertainable, Inadequate or Unfair. In the
event that at least one (1) Business Day before the Eurocurrency Interest Rate
Determination Date:
() the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by
reference to which the Eurocurrency Rate then being determined is to
be fixed;
() the Requisite Lenders advise the Administrative Agent that
deposits in Dollars or in the applicable Alternative Currency in the
principal amounts of the Eurocurrency Rate Loans comprising such
Borrowing are not generally available in the London interbank market
for a period equal to such Eurocurrency Interest Period; or
() the Requisite Lenders advise the Administrative Agent that
the Eurocurrency Rate, as the case may be, as determined by the
Administrative Agent, after taking into account the adjustments for
reserves and increased costs provided for in Section 4.01(f), will not
adequately and fairly reflect the cost to such Lenders of funding
Loans of such Type and in the currency in which such Loans are
denominated;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon (until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist) the right of
the Borrower to elect to have Loans bear interest based upon the Eurocurrency
Rate shall be suspended and each outstanding Eurocurrency Rate Loan shall be
converted into a Base Rate Loan in Dollars (regardless of the currency of such
Loan) on the last day of the then current Eurocurrency Interest Period
therefor, and any Notice of Borrowing for which Revolving Loans have not then
been made that requests a Loan of a Type that has been suspended shall be
deemed to be a request for Base Rate Loans in Dollars, notwithstanding any
prior election by the Borrower to the contrary.
() Illegality. () If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties) that the making or continuation of any Eurocurrency
Rate Loan has become unlawful or impermissible by compliance by that Lender
with any law, governmental rule, regulation or order of any Governmental
Authority (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful or would result in costs or penalties),
then, and in any such event, such Lender may give notice of that
determination, in writing, to the Company and the Administrative Agent, and
the Administrative Agent shall promptly transmit the notice to each other
Lender.
() When notice is given by a Lender under Section 4.02(e)(i),
(A) the Borrowers' right to request from such Lender and such Lender's
obligation, if any, to make Eurocurrency Rate Loans shall be immediately
suspended, and such Lender shall make a Base Rate Loan in Dollars as part of
any requested Borrowing of Eurocurrency Rate Loans and (B) if the affected
Eurocurrency Loans are then outstanding, the Borrower shall immediately, or if
permitted by applicable law, no later than the date permitted thereby, upon at
least one (1) Business Day's prior written notice to the Administrative Agent
and the affected Lender, convert each such Loan into a Base Rate Loan in
Dollars (regardless of the currency of such Loan).
() If at any time after a Lender gives notice under Section
4.02(e)(i) in respect of a Eurocurrency Rate Loan such Lender determines that
it may lawfully make Loans of such Type, such Lender shall promptly give
notice of that determination, in writing, to the Company and the
Administrative Agent, and the Administrative Agent shall promptly transmit the
notice to each other Lender. The Borrowers' right to request, and such
Lender's obligation, if any, to make Loans of such Type shall thereupon be
restored.
() Compensation. In addition to all amounts required to be
paid by the Borrowers pursuant to Section 4.01, the Borrowers shall compensate
each Lender, upon demand, for all losses, expenses and liabilities (including,
without limitation, any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Lender's Eurocurrency Rate Loans to the Borrowers but excluding
any loss of the Applicable Eurocurrency Rate Margin on the relevant Loans)
which that Lender may sustain (i) if for any reason (other than the gross
negligence or willful misconduct of a Lender or the Administrative Agent) a
Borrowing, conversion into or continuation of Eurocurrency Rate Loans does not
occur on a date specified therefor in a Notice of Borrowing or a Notice of
Conversion/Continuation given by the Company or in a telephonic request by it
for borrowing or conversion/continuation or a successive Eurocurrency Interest
Period does not commence after notice therefor is given pursuant to Section
4.01(c), (ii) if for any reason any Eurocurrency Rate Loan is prepaid
(including, without limitation, mandatorily pursuant to Section 3.01) on a
date which is not the last day of the applicable Eurocurrency Interest Period,
(iii) as a consequence of a required conversion of a Eurocurrency Rate Loan to
a Base Rate Loan as a result of any of the events indicated in Section 4.02(e)
or (iv) as a consequence of any failure by any Borrower to repay Eurocurrency
Rate Loans when required by the terms hereof. The Lender making demand for
such compensation shall deliver to the Company concurrently with such demand a
written statement in reasonable detail as to such losses, expenses and
liabilities, and this statement shall be conclusive as to the amount of
compensation due to that Lender, absent manifest error.
() Currency Exchanges. At any time Eurocurrency Rate Loans
denominated in an Alternative Currency are required to be converted to Base
Rate Loans pursuant to Sections 4.01(d) and (e) or otherwise, the Borrowers
shall indemnify the Lenders against any loss or liability arising out of or as
a result of the conversion of such Alternative Currency into Dollars and
exchange costs and taxes payable in connection with such conversion and the
Borrower to which such Loan was made shall forthwith on written demand
therefor pay to the Agent, for the benefit of the applicable Lenders, the
amount of such loss, liability, costs and taxes.
() Booking of Eurocurrency Rate Loans. Any Lender may make,
carry or transfer Eurocurrency Rate Loans at, to, or for the account of, its
Eurocurrency Lending Office or Eurocurrency Affiliate or its other offices or
Affiliates. No Lender shall be entitled, however, to receive any greater
amount under Sections 3.03, 3.04, 4.01(f) or 4.02(f) as a result of the
transfer of any such Eurocurrency Rate Loan to any office (other than such
Eurocurrency Lending Office) or any Affiliate (other than such Eurocurrency
Affiliate) than such Lender would have been entitled to receive immediately
prior thereto, unless (i) the transfer occurred at a time when circumstances
giving rise to the claim for such greater amount did not exist and (ii) such
claim would have arisen even if such transfer had not occurred.
() Affiliates Not Obligated. No Eurocurrency Affiliate or other
Affiliate of any Lender shall be deemed a party hereto or shall have any
liability or obligation hereunder.
4.0. Fees. () Letter of Credit Fee. In addition to any
charges paid pursuant to Section 2.04(g), the Company shall pay to the
Administrative Agent, for the account of the Lenders and the Issuing Banks as
provided in the following sentence, with respect to any Letter of Credit
issued by any Issuing Bank, a fee per annum (the "Letter of Credit Fee") equal
to the Applicable Eurocurrency Rate Margin as of the date of each such payment
on the undrawn face amount of such Letter of Credit, payable in arrears on the
first day of each calendar month for the preceding calendar month. The
Administrative Agent shall pay to the Issuing Bank for its own account from
the Letter of Credit Fee in respect of any Letter of Credit issued by it in an
amount equal to one-eighth percent (0.125%) per annum on the undrawn face
amount of such Letter of Credit, and that the Administrative Agent shall pay
the remainder of each such Letters of Credit Fee to the Lenders in accordance
with their respective Pro Rata Shares.
() Unused Commitment Fee. The Company shall pay to the
Administrative Agent, for the account of the Lenders in accordance with their
respective Pro Rata Shares, a fee (the "Unused Commitment Fee"), accruing from
the period beginning on the Effective Date and ending on but not including the
Revolving Credit Termination Date at the Unused Commitment Fee Rate in effect
from time to time on the average amount by which the Revolving Credit
Commitments exceed the Revolving Credit Obligations for such period, the
accrued portion of such fee being payable (A) quarterly, in arrears,
commencing on the last day of the quarter in which the Effective Date occurs
and (B) on the Revolving Credit Termination Date. Notwithstanding the
foregoing, in the event that any Lender fails to fund its Pro Rata Share of
any Loan requested by any Borrower which such Lender is obligated to fund
under the terms hereof, such Lender shall not be entitled to any Unused
Commitment Fees with respect to its Revolving Credit Commitment until such
failure has been cured in accordance with Section 3.02(b)(v)(B) and the
Company shall not be required to pay any Unused Commitment Fees to such Lender
or to the Administrative Agent for the account of such Lender for such period.
() Other Fees. The Company shall pay such other fees as the
Company is obligated to pay pursuant to the Letter Agreement.
() Calculation and Payment of Fees. All of the above fees
shall be calculated on the basis of the actual number of days elapsed in a
365/366-day year. All such fees shall be payable in addition to, and not in
lieu of, interest, expense reimbursements, indemnification and other
Obligations. Fees shall be payable to the Administrative Agent at its
Applicable Payment Office in accordance with Section 3.02. All fees shall be
fully earned and nonrefundable when paid. All fees specified or referred to
herein due to the Administrative Agent, either CoAgent, any Issuing Bank or
any Lender, including, without limitation, those referred to in this Section
4.03, shall bear interest, if not paid when due, at the interest rate for
Loans in accordance with Section 4.01(d), shall constitute Obligations and
shall be secured by the Collateral.
ARTICLE
CONDITIONS TO LOANS AND LETTERS OF CREDIT
5.0. Conditions Precedent to the Effectiveness of this
Agreement. This Agreement shall become effective on the date (the "Effective
Date") when the following conditions precedent have been satisfied:
() Documents. The Administrative Agent (on behalf of itself
and the Lenders) shall have received on or before the Effective Date all of
the following:
() this Agreement, the Notes and all other agreements,
documents and instruments described in the List of Closing Documents
attached hereto and made a part hereof as Exhibit H, each duly
executed where appropriate and in form and substance satisfactory to
the Lenders and in sufficient copies for each of the Lenders; without
limiting the foregoing, the Company hereby directs its counsel,
Porter, Wright, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, to prepare and deliver to the
Administrative Agent, the CoAgents, the Lenders and the Issuing Banks,
the opinion referred to in such List of Closing Documents with respect
to such counsel;
() a pro forma estimated balance sheet of the Borrower and its
Subsidiaries as of the Effective Date, as referred to in Section
6.01(h) giving effect to the transactions contemplated in the Loan
Documents; and
() such additional documentation as the Administrative Agent or
either CoAgent may reasonably request.
() Perfection of Liens. All certificates representing Capital
Stock included in the Collateral shall have been delivered to the
Administrative Agent (with duly executed stock powers, as appropriate) and all
instruments included in the Collateral shall have been delivered to the
Administrative Agent (duly endorsed to the Administrative Agent, as
appropriate). If not previously filed in connection with the Existing Credit
Agreement, the Administrative Agent shall have received UCC-1 Financing
Statements duly executed that shall, when filed in the appropriate
jurisdictions, be sufficient to perfect Liens on all of the Collateral, to the
extent that such Liens may be perfected by the filing of UCC-1 Financing
Statements. All UCC-1 Financing Statements executed in favor of the Existing
Administrative Agent as secured party shall have been assigned to the
Administrative Agent. The Existing Administrative Agent shall have assigned
the Mortgages, the Trademark Security Agreements and the Patent Security
Agreements to the Administrative Agent and the Company shall have executed such
modifications to the Mortgages encumbering the Real Property set forth on
Schedule 6.01-V and obtained appropriate endorsements to the applicable Title
Policies from the Title Company as the Administrative Agent may deem necessary
in order to maintain the perfection and priority of the Liens.
() No Legal Impediments. No law, regulation, order, judgment
or decree of any Governmental Authority shall, and the Administrative Agent
shall not have received any notice that any action, suit, investigation,
litigation or proceeding is pending or threatened in any court or before any
arbitrator or Governmental Authority which purports to (i) enjoin, prohibit,
restrain or otherwise affect (A) the making of the Loans on the Effective Date
or (B) the consummation of the transactions contemplated pursuant to the Loan
Documents or (ii) would be reasonably expected to have a Material Adverse
Effect.
() No Change in Condition. No change in the condition
(financial or otherwise), business, performance, Properties, operations or
prospects of the Borrower and its Subsidiaries taken as whole shall have
occurred since December 31, 1997, which change has had or is reasonably likely
to have a Material Adverse Effect (other than any such change resulting from
the consummation of the Recapitalization Transactions).
() No Default. No Event of Default or Default shall have
occurred and be continuing or would result from the making of the Loans.
() Representations and Warranties. All of the representations
and warranties contained in Section 6.01 and in any of the other Loan
Documents shall be true and correct in all material respects on and as of the
Effective Date (other than representations and warranties which expressly
speak as of a different date), in each case both before and after giving
effect to the funding of the Loans.
() Fees and Expenses Paid. On the Effective Date there shall
have been paid to the Administrative Agent, for the account of the Lenders,
the Co-Agents and the Administrative Agent, for their respective individual
accounts, all fees (including, without limitation, the reasonable legal fees
of counsel to the Existing Administrative Agent, the Syndication Agent and
local counsel to the Administrative Agent and the Syndication Agent for the
benefit of the Lenders) due and payable on or before the Effective Date
(including, without limitation, all such fees described in the Letter
Agreement), and all expenses (including, without limitation, legal expenses)
due and payable on or before the Effective Date, in each case for which
invoices (containing, where appropriate, a description of all such fees and
expenses) have been provided to the Company.
() Effective Date. The Effective Date shall have occurred on
or before November 24, 1998.
() Consents, Etc. Except as set forth on Schedule 6.01E, each
of the Borrowers and the Company's Subsidiaries shall have received all
consents and authorizations required pursuant to any material Contractual
Obligation with any other Person and shall have obtained all consents and
authorizations of, and effected all notices to and filings with, any
Governmental Authority as may be necessary to allow each of the Borrowers and
the Company's Subsidiaries lawfully (A) to execute, deliver and perform, in
all material respects, their respective obligations hereunder, under the other
Loan Documents to which each of them is, or shall be, a party and each other
agreement or instrument to be executed and delivered by each of them pursuant
thereto or in connection therewith and (B) to create and perfect the Liens on
the Collateral to be owned by each of them in the manner and for the purpose
contemplated by the Loan Documents, except for Liens that cannot be created or
perfected by filings with or notices to a Governmental Authority. No such
consent or authorization shall impose any conditions upon the Company or any
of its Subsidiaries that are not reasonably acceptable to the Lenders.
() Payment of Obligations under the Existing Credit Agreement.
On the Effective Date the Company shall have paid all interest, fees and
expenses (for which the Company shall have received invoices) accrued under
the Existing Credit Agreement through the Effective Date whether or not due
and payable on the Effective Date.
() 1998 Subordinated Notes. The Company shall have received
gross proceeds of at least $120,000,000 from the issuance of the 1998
Subordinated Notes.
5.0. Conditions Precedent to All Subsequent Revolving Loans,
Swing Loans and Letters of Credit. The obligation of each Lender to make any
Revolving Loan and of the Swing Loan Bank to make any Swing Loan, requested to
be made by it on any date after the Effective Date, and the agreement of each
Issuing Bank to Issue any Letter of Credit on any date after the Effective
Date is subject to the following conditions precedent as of each such date:
() Representations and Warranties. As of such date, both
before and after giving effect to the Loans to be made or the Letter of Credit
to be Issued on such date, all of the representations and warranties of
Holdco, the Company and the Company's Subsidiaries contained in Section 6.01
and in any other Loan Document (other than representations and warranties
which expressly speak as of a different date) shall be true and correct in all
material respects.
() No Default. No Event of Default or Default shall have
occurred and be continuing or would result from the making of the requested
Loan or the issuance of the requested Letter of Credit.
() No Legal Impediments. No law, regulation, order, judgment
or decree of any Governmental Authority shall, and the Administrative Agent
shall not have received from any Lender, the Swing Loan Bank or Issuing Bank,
as the case may be, notice that, in the reasonable judgment of such Person,
any action, suit, investigation, litigation or proceeding is pending or
threatened in any court or before any arbitrator or Governmental Authority
which is likely to enjoin, prohibit or restrain, or impose or result in the
imposition of any material adverse condition upon, (i) such Lender's making of
the requested Loan or participation in the requested Letter of Credit,
(ii) the Swing Loan Bank's making of the requested Swing Loan or (iii) such
Issuing Bank's issuance of the requested Letter of Credit.
() No Material Adverse Change. No change shall have occurred
in the condition (financial or otherwise), business, performance, Properties,
operations or prospects of the Borrower and its Subsidiaries taken as a whole
since December 31, 1997 which has had or is reasonably likely to have a
Material Adverse Effect (other than any such change resulting from the
consummation of the Recapitalization Transactions).
Each submission by the Company to the Administrative Agent of a Notice of
Borrowing with respect to a Revolving Loan or Swing Loan, each acceptance by
the applicable Borrower of the proceeds of each such Loan so made, each
submission by the Company to an Issuing Bank of a request for issuance of a
Letter of Credit and the issuance of such Letter of Credit, shall constitute a
representation and warranty by the Company as of the Funding Date in respect of
such Revolving Loan, as of the Swing Loan Funding Date in respect of such
Swing Loan, and as of the date of issuance of such Letter of Credit, that all
the conditions contained in this Section 5.02(a), (b) and (d) have been
satisfied or waived in accordance with Section 13.07.
ARTICLE
REPRESENTATIONS AND WARRANTIES
6.0. Representations and Warranties of the Borrowers. In
order to induce the Lenders and the Issuing Banks to enter into this Agreement
and to make the Loans and the other financial accommodations to the Borrowers
and to issue the Letters of Credit described herein, each Borrower represents
and warrants (only with respect to those representations and warranties set
forth below applicable to itself and its Subsidiaries) to each Lender, each
Issuing Bank, each CoAgent and the Administrative Agent as of the Effective
Date and thereafter on each date as required by Section 5.02(a) that the
following statements are true and correct:
() Organization; Corporate Powers. Each of the Company and the
Company's Subsidiaries (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
(ii) is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which failure to be so
qualified and in good standing has or is reasonably likely to have a Material
Adverse Effect and (iii) has all requisite corporate power and authority to
own, operate and encumber its Property and to conduct its business as
presently conducted.
() Authority. () Each of the Company and the Company's
Subsidiaries has the requisite corporate power and authority to execute,
deliver and perform each of the Loan Documents to which it is a party.
() The execution, delivery and performance, as the case may be,
of each of the Loan Documents which have been executed and to which any of the
Company or the Company's Subsidiaries is a party and the consummation of the
transactions contemplated thereby, have been duly approved by each of the
boards of directors and (to the extent required by law) the shareholders of
the Company and the Company's Subsidiaries, respectively, and such approvals
have not been rescinded, revoked or modified in any manner. No other corporate
action or proceedings on the part of the Company or the Company's Subsidiaries
is necessary to consummate such transactions.
() Each of the Loan Documents to which the Company or the
Company's Subsidiaries is a party has been duly executed, or delivered on
behalf of the Company or the Company's Subsidiaries, as the case may be, and
constitutes its legal, valid and binding obligation, enforceable against such
Person in accordance with its terms (except as enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the enforcement of creditors' rights and
remedies generally and general principles of equity), is in full force and
effect and no Default or Event of Default has occurred and is continuing.
() Subsidiaries; Ownership of Capital Stock. Schedule 6.01C
(i) contains a diagram indicating the corporate structure of Holdco, the
Company, the Company's Subsidiaries and any other Person in which Holdco, the
Company or any of the Company's Subsidiaries holds an equity interest as of
the Effective Date; and (ii) accurately sets forth as of the Effective Date,
(A) the correct legal name, the jurisdiction of incorporation, and Employer
Identification Number of each of Holdco, the Company and the Company's
Subsidiaries, and the jurisdictions in which each of Holdco, the Company and
the Company's Subsidiaries is qualified to transact business as a foreign
corporation, (B) the authorized, issued and outstanding shares of each class
of Capital Stock of Holdco, the Company and each of the Company's Subsidiaries
and, with respect to the Company and the Company's Subsidiaries, the owners of
such shares and (C) a summary of the direct and indirect partnership, joint
venture, or other equity interests, if any, of Holdco, the Company and each
Subsidiary of the Company in any Person that is not a corporation. Except as
set forth in Schedule 6.01C, none of the issued and outstanding Capital Stock
of Holdco, the Company or the Company's Subsidiaries is subject to any vesting,
redemption, or repurchase agreement, and there are no warrants or options
outstanding with respect to such Capital Stock. The outstanding Capital Stock
of Holdco, the Company and each of its Subsidiaries is duly authorized,
validly issued, fully paid and nonassessable and the outstanding Capital Stock
of the Company and the Company's Subsidiaries is not Margin Stock.
() No Conflict. The execution, delivery and performance of
each of the Loan Documents to which the Company or any of the Company's
Subsidiaries is a party do not and shall not (i) conflict with the Constituent
Documents of the Company or any such Subsidiary, (ii) except as set forth on
Schedule 6.01D, conflict with, result in a breach of or constitute (with or
without notice or lapse of time or both) a default under any material
Requirement of Law or any material Contractual Obligation of the Company or
any such Subsidiary, or require the termination of any material Contractual
Obligation, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the Property of the Company or any such Subsidiary,
other than Liens contemplated by the Loan Documents, or (iv) require any
approval of the Company's or any such Subsidiary's shareholders that has not
been obtained.
() Governmental Consents, etc. Except as set forth on
Schedule 6.01E, the execution, delivery and performance of each of the Loan
Documents to which the Company or any of the Company's Subsidiaries is a party
do not and shall not require any registration with, consent or approval of, or
notice to, or other action to, with or by any Governmental Authority, except
(i) filings, consents or notices which have been made, obtained or given, or,
in a timely manner, shall be made, obtained, or given and (ii) filings
necessary to perfect security interests in the Collateral to the extent that
such security interests may be perfected by filings. None of the Company or
any of the Company's Subsidiaries is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, or the Investment Company Act of 1940, or any other federal or
state statute or regulation which limits its ability to incur the Obligations
or its ability to consummate the transactions contemplated in the Loan
Documents.
() Accommodation Obligations; Contingencies. Except as set
forth on Schedule 1.01.1, none of the Company or any of the Company's
Subsidiaries has any Accommodation Obligation, contingent liability or
liability for any Taxes, long-term lease or commitment, not reflected in its
financial statements dated December 31, 1997 delivered to the Administrative
Agent or otherwise disclosed to the Administrative Agent, the CoAgents and the
Lenders in the other Schedules hereto, which has or is reasonably likely to
have a Material Adverse Effect, except as permitted pursuant to Section 9.01
or 9.05 hereof.
() Restricted Junior Payments. None of the Company or any of
the Company's Subsidiaries has directly or indirectly declared, ordered, paid
or made or set apart any sum or Property of the Company or such Subsidiary for
any Restricted Junior Payment or agreed to do so, except as permitted pursuant
to Section 9.06 hereof, except in connection with the Recapitalization
Transactions.
() Financial Position. () The Company's pro forma estimated
balance sheet and the notes thereto referred to in Section 5.01(a)(ii) was
prepared in good faith and fairly presents on a pro forma basis (after giving
effect to the transactions contemplated herein) as of the Effective Date the
Company's consolidated financial condition, based on the information available
to the Company at the time so furnished.
() The Company's Projections were prepared in good faith and
are based upon facts and assumptions that were reasonable in light of the then
current and foreseeable business conditions of the Company and represented
management's reasonable best estimate of the projected financial performance
of the Company and its Subsidiaries based on the information available to the
Company at the time so furnished.
() Litigation; Adverse Effects. Except as set forth in
Schedule 6.01I or as disclosed on Schedule 6.01O, (A) there is no action,
suit, audit, proceeding, investigation or arbitration (or series of related
actions, suits, proceedings, investigations or arbitrations) before or by any
Governmental Authority or private arbitrator pending or, to the knowledge of
the Borrowers, threatened against the Company or any of the Company's
Subsidiaries or any Property of any of them (i) challenging the validity or
the enforceability of any of the Loan Documents or (ii) which has had or is
reasonably likely to have a Material Adverse Effect and (B) none of the
Company or any of the Company's Subsidiaries is (i) in violation of any
applicable Requirements of Law which violation has had or is reasonably likely
to have a Material Adverse Effect, or (ii) subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority,
in each case which has had or is reasonably likely to have a Material Adverse
Effect.
() No Material Adverse Change. Since December 31, 1997, there
has occurred no event which has had or is reasonably likely to have a Material
Adverse Effect (other than any such change resulting from the consummation of
the Recapitalization Transactions).
() Payment of Taxes. Except as set forth in Schedule 6.01K,
all tax returns and reports of each of the Company and the Company's
Subsidiaries required to be filed have been timely filed, and all such tax
returns and reports are true and correct in all material aspects. All taxes,
assessments, fees and other governmental charges of every kind and nature
imposed upon their respective Property, business, income and franchises which
are due and payable have been paid, other than such taxes, assessments, fees
and other governmental charges (i) which are being contested in good faith by
the Company or such Subsidiary, as the case may be, by appropriate proceedings
diligently instituted and conducted and without danger of any material risk to
the Collateral and (ii) with respect to which a reserve or other appropriate
provision, if any, as is required in conformity with GAAP shall have been
made. The Company has no knowledge of any proposed tax assessment against the
Company or any of the Company's Subsidiaries that would have or is reasonably
likely to have a Material Adverse Effect.
() Performance. None of the Company or any of the Company's
Subsidiaries has received notice or has actual knowledge that (i) it is in
default in the performance, observance or fulfillment of any Contractual
Obligation applicable to it or (ii) any condition exists which, with the
giving of notice or the lapse of time or both, would constitute a default with
respect to any such Contractual Obligation; in each case, except where such
default or defaults, if any, would not have or are not reasonably likely to
have a Material Adverse Effect.
() Disclosure. The representations and warranties of each of
Holdco, the Company and the Company's Subsidiaries contained in the Loan
Documents, and all schedules, certificates and documents delivered to the
Administrative Agent, the CoAgents and the Lenders pursuant to the terms
hereof and the other Loan Documents do not contain any statement of a material
fact untrue when made or omit to state a material fact necessary in order to
make the statements contained herein or therein, in light of the circumstances
under which they were made, not misleading when made.
() Requirements of Law. Each of the Company and the Company's
Subsidiaries is in compliance with all Requirements of Law applicable to it
and its business, in each case where the failure to so comply individually or
in the aggregate would have or is reasonably likely to have a Material Adverse
Effect.
() Environmental Matters. Except as set forth in Schedule
6.01-O and except for matters, conditions, operations and noncompliance which
would not have or be reasonably likely to have a Material Adverse Effect:
() the operations of the Company and the Company's Subsidiaries
comply in all material respects with all applicable Environmental, Health or
Safety Requirements of Law;
() the Company and each of the Company's Subsidiaries have
obtained or have taken appropriate steps, as required by Environmental, Health
or Safety Requirements of Law, to obtain all environmental, health and safety
Permits necessary for their respective operations, and all such Permits are in
good standing and each of the Company and each of the Company's Subsidiaries
are currently in compliance in all material respects with all terms and
conditions of such Permits;
() none of the Company or the Company's Subsidiaries or any of
their respective operations or present Property or, to the knowledge of the
Company or any of the Company's Subsidiaries, their past Property, are subject
to any judicial or administrative proceeding, order, judgment, decree, or
other agreement, or to the knowledge of the Company or any of the Company's
Subsidiaries, any investigation, alleging or addressing (i) a material
violation of any Environmental, Health or Safety Requirement of Law; (ii) any
Remedial Action; or (iii) any material Claims or Liabilities and Costs arising
from the Release or threatened Release of a Contaminant into the environment
nor has the Company or the Company's Subsidiaries received any notice of the
foregoing;
() none of the Company or the Company's Subsidiaries is the
owner or operator of any Property which has any of the following:
(i) any past or present on-site generation, treatment,
recycling, storage or disposal of any hazardous waste, as that
term is defined under 40 C.F.R. Part 261 or any state
equivalent;
(ii) any present or known past landfill, waste-pile,
underground storage tank or surface impoundment;
(iii) any asbestos-containing material; or
(iv) any polychlorinated biphenyls (PCBs) used by the Company
or the Company's Subsidiaries in hydraulic oils, electrical
transformers or other Equipment of the Company or the Company's
Subsidiaries;
() no Environmental Lien has attached to any Property of the
Company or any of the Company's Subsidiaries;
() there have been no Releases of any Contaminants into the
environment in reportable quantities by the Company or the Company's
Subsidiaries;
() the Company and the Company's Subsidiaries have no material
contingent liability in connection with any Release or threatened Release of
any Contaminants into the environment;
() to the knowledge of the Company, the Company and the
Company's Subsidiaries have not sent or directly arranged for the transport of
any waste to any site listed or proposed for listing on the National
Priorities List ("NPL") pursuant to CERCLA or on the Comprehensive
Environmental Response Compensation Liability Information System List
("CERCLIS"), or any similar state list;
() to the knowledge of the Company, none of the Company's or the
Company's Subsidiaries' present or past Property is listed or proposed for
listing on the NPL pursuant to CERCLA or on the CERCLIS or any similar state
list of sites that requires Remedial Action, and the Company and the Company's
Subsidiaries are presently unaware of any conditions on such Property which
would qualify such Property for inclusion on any such list.
() none of the Company or the Company's Subsidiaries is subject
to any Environmental Property Transfer Act as a result of the transactions
contemplated by the Loan Documents or to the extent such acts are applicable
to any such Property upon which a Lien will be or has been granted in
connection with the transactions contemplated by the Loan Documents, the
Company has fully complied with the requirements of such acts.
() ERISA Matters. Neither the Company nor any ERISA Affiliate
maintains or contributes to any Plan and its related trust, if applicable,
other than those listed on Schedule 6.01P hereto. Each Plan and its related
trust, if applicable, which is intended to be qualified under Sections 401(a)
and 501(a) of the Internal Revenue Code as currently in effect received a
favorable determination letter from the IRS as to its qualified status, or
such a letter will be applied for with the IRS for the Plan and its related
trust on or before December 31, 1994. Except as disclosed in Schedule 6.01P,
neither Company nor any ERISA Affiliate knows of any reason why such Plans or
trusts are no longer qualified or exempt following such determination by the
IRS. Except as disclosed in Schedule 6.01P, neither the Company nor any of its
Subsidiaries maintains or contributes to any employee welfare benefit plan
within the meaning of Section 3(l) of ERISA which provides benefits to
employees after termination of employment other than as required by Section
601 of ERISA. Except as disclosed in Schedule 6.01P the Company and all of
its ERISA Affiliates are in compliance with the responsibilities, obligations
or duties imposed on them by ERISA, the Internal Revenue Code and regulations
promulgated thereunder with respect to all Plans, except where the failure to
so comply individually or in the aggregate would have or is reasonably likely
to have a Material Adverse Effect. No Benefit Plan has incurred any
accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA and
412(a) of the Internal Revenue Code) whether or not waived. Except as
disclosed in Schedule 6.01P, neither the Company nor any ERISA Affiliate nor
any fiduciary of any Plan which is not a Multiemployer Plan (i) has engaged in
a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975
of the Internal Revenue Code, which prohibited transaction has had or is
reasonably likely to have a Material Adverse Effect or (ii) has taken or
failed to take any action which would constitute or result in a Termination
Event. Neither the Company nor any ERISA Affiliate has any liability under
Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA with respect to a Benefit
Plan. Neither the Company nor any ERISA Affiliate has incurred any liability
to the PBGC which remains outstanding other than the payment of premiums, and
there are no premium payments which have become due which are unpaid.
Schedule B to the most recent annual report filed with the IRS with respect to
each Benefit Plan and furnished to the Administrative Agent is complete and
accurate in all material respects. Since the date of each such Schedule B,
there has been no material adverse change in the funding status or financial
condition of the Benefit Plan relating to such Schedule B. Neither the
Company nor any ERISA Affiliate has (i) failed to make a required contribution
or payment to a Multiemployer Plan or (ii) made a complete or partial
withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan.
Neither the Company nor any ERISA Affiliate has failed to make a required
installment or any other required payment under Section 412 of the Internal
Revenue Code on or before the due date for such installment or other payment.
Neither the Company nor any ERISA Affiliate is required to provide security to
a Benefit Plan under Section 401(a)(29) of the Internal Revenue Code due to a
Plan amendment that results in an increase in current liability for the plan
year. The Company has made available to the Administrative Agent copies of
all of the following: each Benefit Plan and related trust agreement
(including all amendments to such Plan and trust) in existence, or for which
the Company or any ERISA Affiliate has taken any corporate action to authorize
the adoption thereof, as of the Effective Date and in respect of which the
Company or any ERISA Affiliate is currently an "employer" as defined in
section 3(5) of ERISA, and the most recent summary plan description, actuarial
report, determination letter issued by the IRS and Form 5500 filed in respect
of each such Benefit Plan in existence; a listing of all of the Multiemployer
Plans currently contributed to by the Company or any ERISA Affiliate with the
aggregate amount of the most recent annual contributions required to be made
by the Company and all ERISA Affiliates to each such Multiemployer Plan, any
information which has been provided to the Company or an ERISA Affiliate
regarding withdrawal liability under any Multiemployer Plan and the collective
bargaining agreement pursuant to which such contribution is required to be
made; each employee welfare benefit plan within the meaning of Section 3(l) of
ERISA which provides benefits to employees of the Company or any of its
Subsidiaries after termination of employment other than as required by Section
601 of ERISA, the most recent summary plan description for such plan and the
aggregate amount of the most recent annual payments made to terminated
employees under each such plan.
() Foreign Employee Benefit Matters. Each Foreign Employee
Benefit Plan is in compliance with all Requirements of Laws applicable thereto
and the respective requirements of the governing documents for such Plan,
except where the failure to so comply individually or in the aggregate would
not have or be reasonably likely to have a Material Adverse Effect. With
respect to any Foreign Employee Benefit Plan maintained by the Company, any of
its subsidiaries or any ERISA Affiliate, reasonable reserves have been
established in accordance with prudent business practice or where required by
ordinary accounting practices in the jurisdiction in which such Plan is
maintained. No such plan has aggregate unfunded liabilities, after giving
effect to any reserves for such liabilities, which have or are reasonably
likely to have a Material Adverse Effect. There are no actions, suits or claims
pending or, to the knowledge of the Borrowers or any of the Subsidiary
Guarantors, threatened against the Company, any of its Subsidiaries or any
ERISA Affiliate with respect to any Foreign Employee Benefit Plan which have
had or are reasonably likely to have a Material Adverse Effect.
() Labor Matters. Except as set forth in Schedule 6.01R, as of
the Effective Date there is no collective bargaining agreement covering any of
the employees of the Company or any Subsidiary of the Company.
() Securities Activities. None of the Company or any of the
Company's Subsidiaries is engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
() Solvency. After giving effect to the transactions
contemplated in the Loan Documents (including, without limitation, the
issuance of the Subordinated Notes and the consummation of the Stock
Repurchase) and the Loans to be made on the Effective Date or such other date
as Loans requested hereunder are made and the disbursement of the proceeds of
such Loans pursuant to the Company's instructions, each of the Borrowers and
the Subsidiary Guarantors is Solvent.
() Patents, Trademarks, Permits, Etc.; Government Approvals.
() The Company and each of the Company's Subsidiaries own, are licensed or
otherwise have the lawful right to use, or have all permits and other
governmental approvals, patents, trademarks, trade names, copyrights,
technology, know-how and processes used in or necessary for the conduct of
their businesses as currently conducted except where the failure to do so
would not have or be reasonably likely to have a Material Adverse Effect.
Except as set forth on Schedule 6.01U, no claims are pending or, to the best
of Company's knowledge, threatened in writing that the Company or any of its
Subsidiaries is infringing upon the rights of any Person with respect to such
permits and other governmental approvals, patents, trademarks, trade names,
copyrights, technology, know-how and processes, except for such claims which
would not have or are not reasonably likely to have a Material Adverse Effect.
() Except for Liens granted to the Administrative Agent for the
benefit of the Administrative Agent, the CoAgents, the Issuing Banks and the
Lenders, the transactions contemplated by the Loan Documents shall not impair
the ownership of or rights under (or the license or other right to use, as the
case may be) any permits and governmental approvals, patents, trademarks,
trade names, copyrights, technology, know-how or processes by the Company or
any of the Company's Subsidiaries in any manner which would have or is
reasonably likely to have a Material Adverse Effect.
() Properties. Each of the Company and the Company's
Subsidiaries has good, and in the case of Real Property, indefeasible title to
all of its Property (tangible and intangible) owned by it or a valid leasehold
interest in all of its leased Property (except insofar as indefeasibility may
be limited by any laws or regulations of any Governmental Authority affecting
such Property), and all such Property is free and clear of all Liens, except
Liens securing the Obligations and Liens permitted under Section 9.03.
Schedule 6.01V contains a true and complete list of all of the Real Property
owned in fee simple by each of the Company and the Company's Domestic
Subsidiaries as of the Effective Date with a book value in excess of $500,000,
and a true and complete list of all Leases in effect on the Effective Date
which, pursuant to the terms thereof, have annual rental payments in excess of
$750,000. Substantially all of the assets and Property owned by or leased to
the Company and each such Subsidiary and being used by the Company or each
such Subsidiary are in adequate operating condition and repair, reasonable and
ordinary wear and tear excepted, and are free and clear of any known defects
except such defects that do not substantially interfere with the continued use
thereof in the conduct of normal operations of the Company or such
Subsidiaries. Except for Liens granted to the Administrative Agent neither
this Agreement nor any other Loan Document, nor any transaction contemplated
herein or therein, shall affect any right, title or interest of the Company
or any such Subsidiary in and to any of such Properties in a manner that has
or is reasonably likely to have a Material Adverse Effect.
() Insurance. Schedule 6.01W accurately sets forth as of the
date of such schedule all insurance policies and programs (including
self-insurance programs) currently in effect with respect to the respective
Properties and business of the Company and its Subsidiaries, specifying for
each such policy and program, (i) the amount thereof, (ii) the risks insured
against thereby, (iii) the name of the insurer, if any, and each insured party
thereunder, (iv) the policy or other identification number thereof, (v) the
expiration date thereof and (vi) the annual premium, if any, with respect
thereto. Such insurance policies and programs are, except as disclosed on
Schedule 6.01W, in amounts sufficient to cover the replacement value of the
respective Properties of the Company and its Subsidiaries in excess of
deductible amounts.
() Pledge of Collateral. The grant and perfection of the
security interests in the Capital Stock of each of the Company's Subsidiaries
constituting a portion of the Collateral for the benefit of the Administrative
Agent, the CoAgents, the Issuing Banks, the Lenders and the other Holders, as
contemplated by the terms of the Loan Documents, are not made in violation of
the registration provisions of the Securities Act, any applicable provisions
of other federal securities laws, state securities or "Blue Sky" law, foreign
securities law, or applicable general corporation law or in violation of any
other Requirement of Law.
() Transactions with Affiliates. Schedule 6.01Y lists as of
the Effective Date each existing material agreement and arrangement that is in
effect on the Effective Date that any of the Company or the Company's
Subsidiaries has entered into with any of their respective Affiliates. The
Administrative Agent shall have the right to request a true, accurate and
complete copy of each existing written agreement or arrangement set forth on
Schedule 6.01Y and a true, accurate and complete description of each existing
or proposed agreement or arrangement set forth in Schedule 6.01Y that is not
in writing.
(z) Subordinated Notes. The Subordinated Note Indenture has
been duly executed and delivered on behalf of the Company and constitutes its
legal, valid and binding obligation, enforceable against the Company in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, moratorium and other law affecting
creditors' rights generally, and to general principles of equity, is in full
force and effect. No material term or condition in the Subordinated Note
Indenture has been amended, modified or waived from the form of such indenture
approved in writing by the Lenders, except as permitted under Section 9.16.
The Company has performed and complied in all material respects with all the
terms, provisions, agreements and conditions set forth in the Subordinated Note
Indenture and required to be performed or complied with by the Company and no
default, event of default or breach of any covenant by any such party exists
thereunder. The Subordinated Notes have been duly issued in accordance with
the terms of the Subordinated Note Indenture and are subordinated to the
Obligations.
(aa) Merger Documents. Each of the Merger Documents to which
the Company or any of the Company's Subsidiaries is a party has been duly
executed and delivered on behalf of the Company or such Subsidiary, as the
case may be, and constitutes its legal, valid and binding obligation,
enforceable against such Person in accordance with its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization,
moratorium and other law affecting creditors' rights generally, and to general
principles of equity, and is in full force and effect. No material term or
condition in the Merger Documents affecting the Company or any of the
Company's Subsidiaries has been amended, modified or waived from the terms and
conditions contained in the Merger Documents delivered to the Administrative
Agent and the Lenders pursuant to this Agreement, except as permitted under
Section 9.16. Each of the Company and the Company's Subsidiaries that is a
party to the Merger Documents and, to the best of the Company's knowledge, all
other parties thereto have performed and complied in all material respects
with all the terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by such parties on or before
August 17, 1998, and no default, event of default or breach of any covenant by
any such party exists thereunder that has or could reasonably be expected to
have a Material Adverse Effect. The execution, delivery and performance of
the Merger Documents do not and shall not (i) conflict with the Constituent
Documents of the Company or any of its Subsidiaries, (ii) require any approval
of the Company's equity holders that has not been obtained; (iii) violate any
material provision of, or require any filing, registration, consent or
approval that has not been obtained under, any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award having
applicability to the Company or any of its Subsidiaries, or (iv) result in a
breach of or constitute a default or require any consent under material
contract, agreement, lease or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries or
any of their respective properties may be bound or affected. As of August 17,
1998, the representations and warranties of the Company and to the best of the
Company's knowledge, Holdco, contained in the Merger Documents do not contain
any statement of a material fact untrue when made or omit to state a material
fact necessary in order to make the statements contained herein or therein, in
light of the circumstances under which they were made, not misleading when
made.
(bb) 1998 Subordinated Notes. The 1998 Subordinated Note
Indenture has been duly executed and delivered on behalf of the Company and
constitutes its legal, valid and binding obligation, enforceable against the
Company in accordance with its terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium and other law
affecting creditors' rights generally, and to general principles of equity,
and is in full force and effect. No material term or condition in the 1998
Subordinated Note Indenture has been amended, modified or waived from the form
of such indenture approved in writing by the Lenders, except as permitted
under Section 9.16. The Company has performed and complied in all material
respects with all the terms, provisions, agreements and conditions set forth
in the 1998 Subordinated Note Indenture and required to be performed or
complied with by the Company and no default, event of default or breach of any
covenant by any such party exists thereunder. The 1998 Subordinated Notes,
when issued, have been duly issued in accordance with the terms of the 1998
Subordinated Note Indenture and are subordinated to the Obligations.
(cc) Y2K Compliance. Except as disclosed on Schedule 6.01CC,
the Company:
(i) has reviewed, or has caused its Subsidiaries to review, the
computer systems necessary for its operations and the operations of its
Subsidiaries taken as a whole to determine whether such are Y2K
Compliant;
(ii) has arranged or will arrange for the replacement, repair
or upgrade of such computer systems that are not Y2K Compliant, and
for any necessary testing of such computer systems, in order to assure
that computer systems necessary to the business of the Company and its
Subsidiaries taken as a whole are Y2K Compliant or will be Y2K
Compliant prior to September 30, 1999, except for such noncompliance
that would not have a Material Adverse Effect;
(iii) has identified those of its customers, suppliers and
others whose failure to be Y2K Compliant would have a Material Adverse
Effect and has inquired of them whether their computer systems
necessary for their business relationship with the Company and its
Subsidiaries are Y2K Compliant, and upon request of the Administrative
Agent will provide to the Administrative Agent a summary of the
results of such inquiries;
(iv) will develop and implement a contingency plan for action
to be taken by the Company and its Subsidiaries in the event that any
of the computer systems of the Company and the Subsidiaries referred
to in clause (ii) above or the computer systems of others referred to
in clause (iii) above necessary for their business relationship with
the Company and its Subsidiaries are not Y2K Compliant; and
(v) has no reason to believe, and does not believe, that it
will be unable to repair, replace or upgrade its computer systems
described in clause (ii) above or perform any necessary testing on its
computer systems or implement any contingency plan referred to in
clause (iv) above, except for any inability that would not have a
Material Adverse Effect.
ARTICLE
REPORTING COVENANTS
The Company covenants and agrees that so long as any Revolving
Credit Commitment is outstanding and thereafter until payment in full of all
of the Obligations, unless the Requisite Lenders shall otherwise give prior
written consent thereto or shall have waived compliance:
7.0. Financial Statements. The Company shall maintain, and
shall cause each of the Company's Subsidiaries to maintain, a system of
accounting established and administered in accordance with sound business
practices to permit preparation of consolidated and consolidating financial
statements on a business unit basis and proper books of records and account
and each of the financial statements described below shall be prepared from
such system and records. The Company shall deliver or cause to be delivered
to the Administrative Agent, with sufficient copies for the Lenders, each of
the following within the time periods set forth below (which upon the written
consent of the Administrative Agent may be extended for up to fifteen (15)
additional days):
() [Intentionally omitted].
() Quarterly Reports. Within fifty (50) days after the end of
each of the first three fiscal quarters of each Fiscal Year, the consolidated
and consolidating balance sheets of the Company and its Subsidiaries and
divisions by business unit as at the end of such period and the related
consolidated and consolidating statements of income and cash flow of the
Company and its Subsidiaries and divisions by business unit (in respect of the
consolidating cash flow statements, in the format customarily prepared by the
Company for internal reporting purposes) for such fiscal quarter and for the
period from the beginning of the then current Fiscal Year to the end of such
fiscal quarter, and for the corresponding period during the previous Fiscal
Year, all certified by the chief financial officer, treasurer or controller of
the Company as fairly (subject to normal year end adjustments) presenting in
all material respects the consolidated and consolidating financial position of
the Company and its Subsidiaries and divisions by business unit as at the
dates indicated and the results of their operations and cash flow for the
periods indicated in conformity with GAAP.
() Annual Reports. Within ninety-five (95) days after the end
of each Fiscal Year, (i) audited consolidated financial statements of the
Company and its Subsidiaries certified by KPMG Peat Marwick or other
independent certified public accountants of recognized national standing
reasonably acceptable to the CoAgents, which report shall be certified without
qualification or modification as to scope of audit and as to the Company being
a going concern and shall state that such financial statements fairly present
in all material respects the consolidated financial position of the Company
and its Subsidiaries at the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years (except for changes with which
such independent certified public accountants shall concur and which shall
have been disclosed in the notes to the financial statements) and that the
examination by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards and (ii) annual consolidating financial statements of the Company
and its Subsidiaries and divisions, by business unit, prepared by the Company.
() Officer's Certificate. Together with each delivery of any
financial statement pursuant to paragraphs (b) and (c) of this Section 7.01,
an Officer's Certificate of the Company substantially in the form of Exhibit I
(the "Compliance Certificate"), signed by the Company's chief financial
officer, treasurer or controller and setting forth calculations for the period
then ended, if applicable, for the Leverage Ratio (for purposes of determining
the Applicable Base Rate Margin, the Applicable Eurocurrency Rate Margin and
the Unused Commitment Fee Rate), Section 3.01(b) (including, without
limitation, calculations of Net Cash Proceeds and mandatory prepayments and
commitment reductions), the negative covenants of Article IX and the financial
covenants of Article X (including, without limitation, calculations made to
reflect changes in GAAP from GAAP in effect on the Effective Date). In
addition, within 50 days after the end of May 31, 1999, the Company shall
deliver a Compliance Certificate signed by the Company's chief financial
officer, treasurer or controller and setting forth calculations for the
twelve-month period then ended for the Leverage Ratio (for purposes of
determining the Applicable Base Rate Margin, the Applicable Eurocurrency Rate
Margin and the Unused Commitment Fee Rate).
() Business Plans; Financial Projections. Within (x) 10
Business Days prior to the end of each Fiscal Year, a preliminary draft of
each of the following, and (y) 55 days after the end of each Fiscal year, each
of the following:
() a consolidated annual budget (in the format customarily
utilized by the Company for making financial projections) of the
Company and its Subsidiaries for the succeeding Fiscal Year,
displaying on a quarterly basis anticipated balance sheets, and on a
monthly and quarterly basis forecasted revenues, operating income and
cash flow, all for each business unit of the Company and its
Subsidiaries and
() a forecast (in the format customarily utilized by the
Company for making financial projections) of balance sheets, income
statements and cash flow statements of the Company and its
Subsidiaries on a consolidated basis for each fiscal month in such
Fiscal Year and on an annual basis and for each business unit of the
Company and its Subsidiaries for each of the next succeeding Fiscal
Years up to and including the Fiscal Year during which it is
anticipated that the Obligations will be paid in full;
() Accountant's Statement. Together with each delivery of the
financial statements referred to in Section 7.01(c), a written statement of
KPMG Peat Marwick or another firm of independent certified public accountants
of recognized national standing acceptable to the CoAgents giving the report
stating (i) that their audit examination has included a review of the terms
hereof as it relates to accounting matters and (ii) whether, in connection
with their audit examination, any condition or event which constitutes an
Event of Default or Default has come to their attention, and if such condition
or event has come to their attention, specifying the nature and period of
existence thereof. The statement referred to above shall be accompanied by a
copy of the management letter or any similar report delivered to the Company
or to any officer or employee thereof by such accountants in connection with
such financial statements. Upon prior notice to the Company and, at the
Company's option, in the Company's presence, the Company shall authorize
Administrative Agent, each CoAgent and each Lender to communicate directly
with such accountants.
7.0. Notice of Events of Default. Within five (5) Business
Days after any of the chief executive officer, chief operating officer, chief
financial officer, treasurer or controller of the Company (i) obtains
knowledge of any condition or event which constitutes an Event of Default or
Default, or receives notice from any Lender, any Issuing Bank, either CoAgent
or the Administrative Agent with respect to a claimed Event of Default or
Default, (ii) obtains knowledge that any Person has given any written notice
to the Company or any Domestic Subsidiary or taken any other action with
respect to a claimed default or event or condition of the Type referred to in
Section 11.01(e) or (iii) obtains knowledge of any condition or event which
has or is reasonably likely to have a Material Adverse Effect, the Company
shall deliver to the Administrative Agent an Officer's Certificate specifying
(A) the nature and period of existence of any such claimed default, Event of
Default, Default, condition or event, (B) the notice given or action taken by
such Person in connection therewith, and (C) the remedial action the Company
has taken, is taking or proposes to take with respect thereto.
7.0. Lawsuits. (i) Within twenty (20) Business Days after the
Company obtains knowledge of the institution of, or written threat of, any
action, suit, proceeding, governmental investigation or arbitration against or
affecting the Company or any of the Company's Subsidiaries or any Property of
the Company or any of the Company's Subsidiaries not previously disclosed
pursuant to Section 6.01(i), which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple actions,
suits, proceedings, governmental investigations or arbitrations arising out of
the same general allegations or circumstances which expose, in the Company's
reasonable judgment, the Company or any of the Company's Subsidiaries to
liability in an amount aggregating $10,000,000 or more, the Company shall give
written notice thereof to the Administrative Agent and provide such other
information as may be reasonably available to enable the Administrative Agent
and its counsel to evaluate such matters; and (ii) in addition to the
requirements set forth in clause (i) of this Section 7.03, the Company upon
request of the Administrative Agent shall as soon as practicable give to the
Administrative Agent written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information as
may be reasonably available to it to enable the Administrative Agent and its
counsel to evaluate such matters.
7.0. Insurance. Within ninety (90) days (or, upon the written
consent of the Administrative Agent, up to an additional fifteen (15) days)
after the end of each Fiscal Year ending after the Effective Date, the Company
shall deliver to the Administrative Agent (i) a report in form and substance
satisfactory to the Administrative Agent, the CoAgents and the Lenders
outlining all material insurance coverage (including any self-insurance
provided by the Company) maintained as of the date of such report by the
Company and its Subsidiaries and the duration of such coverage and (ii) to the
extent such insurance coverage is not provided by the Company, an insurance
broker's statement that all premiums then due and payable with respect to such
coverage have been paid.
7.0. ERISA Notices. The Company shall deliver or cause to be
delivered to the Administrative Agent, at the Company's expense, the
following information and notices within twenty (20) Business Days after:
() the Company or any ERISA Affiliate knows or has reason to
know after diligent inquiry that a Termination Event has occurred, a
written statement of the chief financial officer of the Company
describing such Termination Event and the action, if any, which the
Company or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
() the Company or any ERISA Affiliate knows or has reason to
know after diligent inquiry that a prohibited transaction (defined in
Sections 406 of ERISA and 4975 of the Internal Revenue Code) has
occurred, a statement of the chief financial officer of the Company
describing such transaction and the action which the Company or any
ERISA Affiliate has taken, is taking or proposes to take with respect
thereto;
() the filing thereof with the DOL, IRS or PBGC, copies of each
annual report (form 5500 series), including Schedule B thereto, filed with
respect to each Benefit Plan;
() receipt by the Company or any ERISA Affiliate of each
actuarial report for any Benefit Plan or Multiemployer Plan and each annual
report for any Multiemployer Plan, copies of each such report;
() the filing thereof with the IRS, a copy of each funding
waiver request filed with respect to any Benefit Plan and all communications
received by the Company or any ERISA Affiliate with respect to such request;
() the occurrence thereof, notification of any material
increase in the benefits of any existing Plan or the establishment of any new
Plan (excluding supplemental employee retirement plans which are not material)
or the commencement of contributions to any Plan (excluding supplemental
employee retirement plans which are not material) to which the Company or any
ERISA Affiliate was not previously contributing;
() receipt by the Company or any ERISA Affiliate of the PBGC's
intention to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;
() receipt by the Company or any ERISA Affiliate of any
unfavorable determination letter from the IRS regarding the qualification of a
Plan under Section 401(a) of the Internal Revenue Code, copies of each such
letter;
() receipt by the Company or any ERISA Affiliate of a notice
from a Multiemployer Plan regarding the imposition of withdrawal liability,
copies of each such notice;
() the Company or any ERISA Affiliate fails to make a required
installment or any other required payment under Section 412 of the Internal
Revenue Code on or before the due date for such installment or payment, a
notification of such failure;
() the Company or any ERISA Affiliate knows or has reason to
know after diligent inquiry (a) a Multiemployer Plan has been terminated,
(b) the administrator or plan sponsor of a Multiemployer Plan intends to
terminate a Multiemployer Plan, or (c) the PBGC has instituted or will
institute proceedings under Section 4042 of ERISA to terminate a Multiemployer
Plan; and
() receipt by the Company of a written notice from the
Administrative Agent, copies of any Foreign Employee Benefit Plan and related
documents, reports and correspondence as requested by the Administrative Agent
in such notice.
For purposes of clause (i) of this Section 7.05, the Company and any ERISA
Affiliate shall be deemed to know all facts known by the administrator of any
Plan of which the Company or any ERISA Affiliate is the plan sponsor.
7.0. Environmental Notices. () The Company shall notify the
Administrative Agent in writing, within twenty (20) Business Days after the
Company learns thereof, of any of the following:
() written notice or claim by a Governmental Authority or any
third party to the effect that the Company or any of the Company's
Subsidiaries is or may be liable to any Person, or is subject to an
investigation by a Governmental Authority, relating to a material
Release or threatened material Release of any Contaminant into the
environment;
() written notice that any Property of the Company or any of
the Company's Subsidiaries is subject to an Environmental Lien;
() commencement or written threat of any judicial or
administrative proceeding alleging a material violation by the Company
or any of the Company's Subsidiaries of any Environmental, Health or
Safety Requirement of Law;
() new and material changes to any existing Environmental,
Health or Safety Requirement of Law that would reasonably be expected
to have a Material Adverse Effect; or
() any intent to execute an agreement, letter of intent or
commitment to acquire stock, Property, or to lease Real Property, or
to take any other action by the Company or any of its Subsidiaries
that would subject the Company or any of the Company's Subsidiaries to
environmental, health or safety Liabilities and Costs that would
reasonably be expected to have a Material Adverse Effect.
() The Company shall notify the Administrative Agent, in
writing, within 20 Business Days after any filing or report made by the
Company or any of its Subsidiaries with any Governmental Authority with
respect to (i) the material violation of any Environmental, Health or Safety
Requirement of Law, (ii) any material unpermitted Release or threatened
Release of a Contaminant or (iii) any material unsafe or unhealthful condition
at any Property of the Company or its Subsidiaries;
7.0. Labor Matters. The Company shall notify the
Administrative Agent in writing, promptly after the Company knows of, of
(i) any material labor dispute to which the Company or any of its Subsidiaries
is or is reasonably likely to become a party, including, without limitation,
any strikes, lockouts or other disputes relating to such Persons' plants and
other facilities and (ii) any material liability related to Worker Adjustment
and Retraining Notification Act or related liability incurred with respect to
the closing of any plant or other facility of such Persons.
7.0. Public Filings and Reports. Promptly upon the filing
thereof with the Securities and Exchange Commission or the mailing thereof to
the public shareholders or debtholders of the Company generally, the Company
shall deliver to the Administrative Agent, with copies sufficient for each of
the Lenders, copies of all filings or reports made in connection with
outstanding Indebtedness and Capital Stock of the Company other than
amendments to this Agreement and any amendments to management contracts,
compensatory plans or other plans in which directors or officers of the
Company or its Subsidiaries participate, which filings shall be delivered to
the Administrative Agent, with copies sufficient for each of the Lenders,
promptly upon the request of the Administrative Agent.
7.0. Ongoing Y2K Reports. The Company, at the request of the
Administrative Agent, which request shall be made no more frequently than
semi-annually, will certify to the Administrative Agent that the
representation and warranty contained in Section 6.01(cc) remains true and
correct and, if exceptions were set forth on Schedule 6.01CC, the progress
made since the prior report with respect to the elimination thereof on or
prior to September 30, 1999.
7.. Other Information. As soon as reasonably practical after
receipt of a request therefor from the Administrative Agent, the Company shall
prepare and deliver to the Administrative Agent such other information with
respect to the Company, any of the Company's Subsidiaries or the Collateral
including, without limitation, schedules identifying and describing the
Collateral and any dispositions thereof, as from time to time may be
reasonably requested by the Administrative Agent.
ARTICLE
AFFIRMATIVE COVENANTS
Each of the Borrowers covenants and agrees (with respect to
those covenants set forth below applicable to itself and its Subsidiaries)
that so long as any Revolving Credit Commitment is outstanding and thereafter
until payment in full of all of the Obligations, unless the Requisite Lenders
shall otherwise give prior written consent or shall have waived compliance:
8.0. Corporate Existence, Etc. () The Company shall, and
shall cause each Subsidiary Guarantor to, at all times maintain its corporate
existence and preserve and keep, or cause to be preserved and kept, in full
force and effect its rights and franchises material to their respective
businesses;
() The Company shall cause each Non-Guarantor Domestic
Subsidiary at all times to maintain its respective corporate existence and
preserve and keep, or cause to be preserved and kept, in full force and effect
its rights and franchises material to its respective business, except where
the Board of Directors of such Non-Guarantor Domestic Subsidiary determines
that the maintenance or preservation of its business is not in the best
interest of the Company or such Non-Guarantor Domestic Subsidiary;
() Each Foreign Borrower shall, and the Company shall cause
each Foreign Subsidiary at all times to, maintain its respective corporate
existence and preserve and keep, or cause to be preserved and kept, in full
force and effect its respective rights and franchises material to its business;
except in each instance described in clauses (a) through (c) above, where the
failure to so maintain or preserve would not have or be reasonably likely to
have a Material Adverse Effect.
8.0. Corporate Powers; Conduct of Business, Etc. The Company
shall, and shall cause each of its Subsidiaries to, qualify and remain
qualified to do business in each jurisdiction in which the nature of its
business requires it to be so qualified except where the failure to be so
qualified would not have or be reasonably likely to have a Material Adverse
Effect.
8.0. Compliance with Laws, Etc. The Company shall, and shall
cause each of its respective Subsidiaries to, (a) comply with all Requirements
of Law and all restrictive covenants affecting such Person or the business,
Property, assets or operations of such Person, and (b) obtain as needed all
Permits necessary for such Person's operations and maintain such Permits in
good standing, except, in the case of (a) and (b) above, where the failure to
do so would not have or be reasonably likely to have a Material Adverse Effect.
8.0. Payment of Taxes and Claims; Tax Consolidation. The
Company shall, and shall cause each of its Subsidiaries to, pay (a) all taxes,
assessments and other governmental charges imposed upon it or on any of its
Property or assets or in respect of any of its franchises, business, income or
Property before any penalty or interest for late payment (except as such
penalty or interest relates to underpayment of estimated tax payments) accrues
thereon, and (b) all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which have become due and payable
and which by law have or may become a Lien (other than a Lien permitted by
Section 9.03) upon any of the Company's or such Subsidiary's Property, prior
to the time when any penalty or fine shall be incurred with respect thereto;
provided, however, that no such taxes, assessments and governmental charges
referred to in clause (a) above or claims referred to in clause (b) above are
required to be paid if being contested in good faith by the Company or such
Subsidiary, as the case may be, by appropriate proceedings diligently
instituted and conducted and without danger of any material risk to the
Collateral and if such reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made therefor. The
Company shall not and shall not permit any Subsidiary of the Company to, file
or consent to the filing of any combined, unitary, or consolidated income tax
return with any Person (other than the Company and its Subsidiaries).
8.0. Insurance. The Company shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain, in full
force and effect the insurance policies and programs listed on Schedule 6.01-W
or substantially similar policies and programs or other policies and programs
as are acceptable to the Administrative Agent. Each certificate and policy
relating to Property damage and boiler and machinery insurance shall contain
an endorsement, in form and substance acceptable to the Administrative Agent,
showing loss payable to the Administrative Agent, for the benefit of the
Administrative Agent, the CoAgents, the Issuing Banks and the Lenders and
naming the Administrative Agent as an additional insured under such policy and
providing that no act, whether willful or negligent, or default of the
Company, any of its Subsidiaries or any other Person shall affect the right of
the Administrative Agent to recover under such policy or policies of insurance
in case of loss or damage. Each certificate and policy relating to coverages
other than the foregoing shall contain an endorsement naming the
Administrative Agent as an additional insured under such policy. Such
endorsement or an independent instrument furnished to the Administrative Agent
shall provide that the insurance companies shall give the Administrative Agent
at least thirty (30) days' written notice before any such policy or policies
of insurance shall be canceled or altered adversely to the interests of the
Administrative Agent, the CoAgents, the Issuing Banks and the Lenders. In the
event that the Company or any of its Subsidiaries, at any time or times
hereafter, shall fail to obtain or maintain any of the policies or insurance
required herein or to pay any premium in whole or in part relating thereto,
then the Administrative Agent, without waiving or releasing any obligations or
resulting Event of Default hereunder, may at any time or times thereafter (but
shall be under no obligation to do so) obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect thereto
which the Administrative Agent deems advisable. All sums so disbursed by the
Administrative Agent shall constitute Protective Advances and be part of the
Obligations, payable as provided herein.
8.0. Inspection of Property; Books and Records; Discussions.
The Company shall permit, and shall cause each of its Subsidiaries to permit,
any authorized representative(s) designated by the Administrative Agent or any
Lender to visit and inspect any of the Properties of such Person, to examine,
audit, check and make copies of their respective financial and accounting
records, books, journals, orders, receipts and any correspondence and other
data relating to their respective businesses or the transactions contemplated
hereby and by the Loan Documents (including, in connection with environmental
compliance, hazard or liability) (in each case, except such documents and data
required to be maintained as confidential or such documents as contain
privileged or legally protected communications), and to discuss their affairs,
finances and accounts with their officers and, in the presence of the Company
or such Subsidiary, their independent certified public accountants, all of the
foregoing upon reasonable notice and at such times during normal business
hours, as often as may be reasonably requested. All reasonable costs and
expenses incurred by the Administrative Agent or, after the occurrence and
during the continuance of any Event of Default, any Lender, in each case as a
result of such inspection, audit or examination conducted pursuant to this
Section 8.06 shall be paid by the Company.
8.0. Insurance and Condemnation Proceeds. The Company hereby
directs (and, if applicable, shall cause its Domestic Subsidiaries to direct)
all insurers under policies of Property damage and boiler and machinery
insurance and payors of any condemnation claim or award relating to the
Property of the Company and its Domestic Subsidiaries to pay all proceeds
payable under such policies or with respect to such claim or award for any
loss directly to the Administrative Agent, for the benefit of the
Administrative Agent, the CoAgents, the Issuing Banks, the Lenders and the
other Holders, except to the extent such proceeds, claims or awards are
required to be paid to alternate loss payees pursuant to the terms of any
purchase money Indebtedness or Capital Lease permitted under Section 9.01(vi)
or any Operating Lease permitted hereunder, in each case solely with respect
to the Property covered by such Indebtedness, Capital Lease or Operating
Lease; and in no case to the Company or one or more of its Subsidiaries. The
Administrative Agent shall, upon receipt of such proceeds and at the Company's
direction, either apply the same to the principal amount of the Revolving
Loans outstanding at the time of such receipt and create a corresponding
reserve against Revolving Credit Availability in an amount equal to such
application (the "Decision Reserve") or hold such proceeds as Cash Collateral
for the Obligations; provided, however, claims and awards not in excess of
$5,000,000 per occurrence or (series of related occurrences) shall be remitted
to the Company within a reasonable time following the Administrative Agent's
receipt thereof. For up to 180 days after the date of any loss (the "Decision
Period"), the Company may notify the Administrative Agent that it intends to
restore, rebuild or replace the Property subject to the receipt of any
insurance payment or condemnation award and shall, as soon as practicable
thereafter, provide the Administrative Agent detailed information, including a
construction schedule and cost estimates. Should the Company notify the
Administrative Agent that it has decided not to rebuild or replace such
Property during the Decision Period, or should the Company fail to notify the
Administrative Agent of the Company's decision during the Decision Period,
then the amounts held as Cash Collateral or as the Decision Reserve shall
automatically be applied as a mandatory prepayment of the Loans pursuant to
Section 3.01(b)(i). In the event the Company notifies the Administrative
Agent that it intends to rebuild or replace such Property during the Decision
Period, proceeds held as Cash Collateral or constituting the Decision Reserve
shall be disbursed as necessary; provided, however, should a Default or an
Event of Default occur after the Company has notified the Administrative Agent
that it intends to rebuild or replace such Property, the Decision Reserve or
Cash Collateral may, at the Administrative Agent's discretion, or shall, upon
the direction of Requisite Lenders, be applied as a mandatory prepayment of the
Loans pursuant to Section 3.01(b)(i). In the event the Decision Reserve is to
be used to rebuild or replace such Property or applied as a mandatory
prepayment of the Loans, the Company shall be deemed to have requested
Revolving Loans in an amount equal to the Decision Reserve, and, in the case
of a mandatory prepayment of the Loans, such Revolving Loans shall be made
regardless of any failure of the Company to meet the conditions set forth in
Section 5.02. Upon completion of the restoration, rebuilding or replacement
of such Property, the unused proceeds held as Cash Collateral shall constitute
Net Cash Proceeds and shall be applied as a mandatory prepayment of the Loans
pursuant to Section 3.01(b)(i).
8.0. ERISA Compliance. The Company shall, and shall cause
each of its Subsidiaries and ERISA Affiliates to, establish, maintain and
operate all Plans to comply with the provisions of ERISA, the Internal Revenue
Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for such
Plans except where the failure to do so would not have or be reasonably likely
to have a Material Adverse Effect.
8.0. Foreign Employee Benefit Plan Compliance. The Company
shall, and shall cause each of its Subsidiaries and ERISA Affiliates to
establish, maintain and operate all Foreign Employee Benefit Plans to comply
with all laws, regulations and rules applicable thereto and the respective
requirements of the governing documents for such Plans except where the
failure to do so would not have or be reasonably likely to have a Material
Adverse Effect.
8.. Maintenance of Property. The Company shall cause all
Property used or useful in the conduct of its business or the business of any
Subsidiary of the Company to be maintained and kept in good condition, repair
and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof; provided,
however, that nothing in this Section shall prevent the Company or such
Subsidiary from discontinuing the operation or maintenance of any of such
Property if such discontinuance is, in the judgment of the Company or such
Subsidiary, necessary or appropriate in the conduct of its business or the
business of such Subsidiary.
8.. Condemnation. Promptly upon learning of the institution
of any proceeding for the condemnation or other taking of any of the (a) owned
Real Property of the Company or any of its Domestic Subsidiaries with a book
value in excess of $500,000 or (b) leased Real Property of the Company or any
of its Domestic Subsidiaries for which the annual rental payments of the
applicable Lease exceed $750,000, the Company shall notify the Administrative
Agent of the pendency of such proceeding, and permit the Administrative Agent
to participate in any such proceeding, and from time to time shall deliver to
the Administrative Agent all instruments reasonably requested by the
Administrative Agent to permit such participation.
8.. Future Liens on Real Property. After the Effective Date,
with respect to Real Property located in the United States, at least fifteen
(15) Business Days prior to the entering into of any Lease by the Company or
any of the Subsidiary Guarantors with respect to which the annual rental
payments are anticipated to equal or exceed $750,000, or the acquisition of any
Real Property acquired by the Company or any of the Subsidiary Guarantors
after the date hereof and located in the United States with a book value in
excess of $2,000,000, the Company shall, and shall cause each of the
Subsidiary Guarantors to, provide the Administrative Agent written notice
thereof and with respect to any such Lease, the Company or such Subsidiary
Guarantor agrees to use its best efforts in negotiating such Lease to obtain
the consent of the landlord or owner of such Real Property, as the case may
be, to the granting of a Lien on such Lease in favor of the Administrative
Agent. Upon written request of the Administrative Agent, and, in the case of
any Lease, provided that the landlord or owner, as the case may be, of the
Real Property to which such Lease relates, has provided its written consent to
the granting of a Lien on such Lease, the Company shall, and shall cause each
of the Subsidiary Guarantors to, execute and deliver to the Administrative
Agent, for the benefit of the Administrative Agent, the CoAgents, the Issuing
Banks and the Lenders, immediately upon the acquisition or lease of such Real
Property (other than Real Property acquired with the proceeds of Indebtedness
permitted by Section 9.01(vi) and subject to a Lien permitted by Section
9.03(iv)) a mortgage, deed of trust, assignment or other appropriate
instrument evidencing a Lien upon any such Real Property, together with such
Title Policies, certified Surveys, and local counsel opinions with respect
thereto and such other agreements, documents and instruments which the
Administrative Agent deems necessary or desirable, the same to be in form and
substance substantially the same as the mortgages and other Loan Documents
relating to Real Property of the Company and the Subsidiary Guarantors
executed and delivered in connection with this Agreement, and to be subject
only to (i) Liens permitted under Section 9.03 and (ii) such other Liens as the
Administrative Agent may reasonably approve, it being understood that the
granting of such additional security for the Obligations pursuant to this
Section 8.12 is a material inducement to the execution and delivery of this
Agreement by each Lender.
8.. Future Liens on Personal Property. (a) The Company shall,
and shall cause each of the Subsidiary Guarantors to, provide to the
Administrative Agent, for the benefit of the Administrative Agent, the
CoAgents, the Issuing Banks and the Lenders (i) a Lien upon the personal
Property located in the United States of each Subsidiary Guarantor becoming
party to the Subsidiary Guaranty after the Effective Date, pursuant to a
Security Agreement substantially in the form of the Subsidiary Security
Agreement dated as of November 21, 1994, as amended, delivered in connection
with the Existing Credit Agreement or its predecessor, together with such
other agreements, documents and instruments which the Administrative Agent
deems necessary or desirable, the same to be in form and substance
substantially the same as the Loan Documents relating to personal Property of
the other Subsidiary Guarantors executed and delivered in connection with this
Agreement, and to be subject only to Liens permitted by Section 9.03 and such
other Liens as the Administrative Agent may reasonably approve and (ii) a
pledge of (A) 100% of the Capital Stock of any Non-Guarantor Domestic
Subsidiary or domestic Permitted Joint Venture (other than Thermalex or
Thermal Components, Inc.) held by the Company or any Subsidiary Guarantor and
(B) all of the Capital Stock of (I) any Foreign Borrower held by the Company
or any Subsidiary Guarantor and (II) any other Foreign Subsidiary or foreign
Permitted Joint Venture held by the Company or any Subsidiary Guarantor with
net assets with an aggregate book value in excess of $10,000,000 (but in
either case no greater than 65% of the outstanding Capital Stock of such
Subsidiary or joint venture shall be pledged as security for the Obligations),
pursuant to a pledge agreement in form and substance satisfactory to the
Administrative Agent, together with such other agreements, documents and
instruments which the Administrative Agent deems necessary or desirable, and
(b) the Company shall cause any Wholly Owned Domestic Subsidiary (other than
Thermal Components, Inc.) with net assets with an aggregate book value in
excess of $5,000,000 to become a Subsidiary Guarantor pursuant to the terms of
the Subsidiary Guaranty, it being understood that the granting of the
additional security for the Obligations pursuant to this Section 8.13 is a
material inducement to the execution and delivery of this Agreement by each
Lender.
8.. Landlord Waivers. In connection with the Existing Credit
Agreement (or any predecessor thereof), on or prior to the Effective Date, the
Company has obtained and delivered to the Administrative Agent landlord
waivers (with copies of the relevant leases attached) in form and substance
reasonably satisfactory to the Administrative Agent relating to the Company's
Leases, except for landlord waivers that the Company, despite its best efforts
as of the Effective Date, was unable to obtain. The Company shall use its
best efforts to obtain and deliver to the Administrative Agent landlord
waivers (with copies of the relevant Lease attached) with respect to any Lease
entered into after the Effective Date which relates to a location in which
there is, or is reasonably expected to be, Collateral with a book value of
$3,000,000 or more.
8.. Environmental Compliance. The Company and the Company's
Subsidiaries shall comply with all Environmental, Health or Safety
Requirements of Law, except where the failure to so comply would not have or
be reasonably likely to have a Material Adverse Effect.
8.. PostClosing Matters. To the extent not delivered prior to
or on the Effective Date, the Company shall deliver to the Administrative
Agent, in form and substance satisfactory to the Administrative Agent, each of
the agreements, instruments, opinions and other documents listed under the
heading "Postclosing Matters" on the List of Closing Documents attached hereto
as Exhibit H within the time periods set forth on such List of Closing
Documents.
8.. Permitted Acquisitions. () In addition to any other
limitation set forth in this Agreement, neither the Company nor any of its
Domestic Subsidiaries shall, in connection with any Permitted Acquisition,
enter into any acquisition or purchase agreement providing for a Permitted
Acquisition which does not allow for the assignment of the Company's or such
Subsidiary's rights thereunder to the Administrative Agent as security for the
Obligations.
() On the Funding Date for any Borrowing of Revolving Loans for
the purpose of consummating a Permitted Acquisition (or, if no Revolving Loans
are being used for such purpose, then on the date of the consummation of such
Permitted Acquisition), the purchase price of which is in excess of $5,000,000
(i) the Administrative Agent shall have received an Officer's Certificate
certifying that (a) the acquisition meets the requirements of the definition of
Permitted Acquisition (setting forth detailed calculations of all financial
covenants), (b) such acquisition complies with the requirements of Sections
9.12 and 9.17 and (c) the liabilities of the type referred to in Sections 9.12
and 9.17 with respect to such Permitted Acquisition and any other liabilities
assumed in connection with such Permitted Acquisition do not or are not
reasonably likely to have a Material Adverse Effect, (ii) the Company shall
have delivered to the Administrative Agent copies of (or to the extent
unavailable, forms of) all material documentation evidencing the Permitted
Acquisition, including, without limitation, the relevant acquisition or
purchase agreement, corporate resolutions approving such Permitted Acquisition
and opinions of counsel delivered in connection therewith (and the Company
will use reasonable efforts to enable the Administrative Agent and the Lenders
to be entitled to rely thereon) each certified by the Secretary or Assistant
Secretary of the Company to be either (A) true and correct copies of such
documents in full force and effect or (B) substantially in the form of the
final documentation evidencing such Permitted Acquisition (provided that any
such final documentation not delivered to the Administrative Agent on the
Funding Date shall be delivered to the Administrative Agent no later than
twenty (20) Business Days after the Funding Date for any domestic acquisition
and within three Business Days of the receipt of the same for any foreign
acquisition) and (iii) the Company shall have delivered to the Administrative
Agent copies of all material business and financial information (with
appropriate supporting detail) relating to the business purchased in the
Permitted Acquisition as the Administrative Agent may reasonably request.
ARTICLE
NEGATIVE COVENANTS
Each of the Borrowers covenants and agrees (with respect to
those covenants set forth below applicable to itself and its Subsidiaries)
that it shall comply with the following covenants so long as any Revolving
Credit Commitment is outstanding and thereafter until payment in full of all
of the Obligations, unless (except as otherwise provided below) the Requisite
Lenders shall otherwise give prior written consent thereto or shall have waived
compliance:
9.0. Indebtedness. None of the Company or any of its
Subsidiaries shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any
Indebtedness, except:
() the Obligations;
() Permitted Existing Indebtedness, and any extensions,
renewals, refundings or replacements of Permitted Existing
Indebtedness; provided that any such extension, renewal, refunding or
replacement is in an aggregate principal amount not greater than the
principal amount of, and is on terms no less favorable to the Company
or such Subsidiary than the terms of, the Permitted Existing
Indebtedness so extended, renewed, refunded or replaced;
() Non-Facility Letters of Credit for which a Non-Facility
Letter of Credit Reserve has been established by the Administrative
Agent following receipt of a written notice from the Company
instructing the Administrative Agent to establish such reserve;
provided, however, the aggregate amount available for drawing under
all Letters of Credit and Non-Facility Letters of Credit shall not
exceed the sum of (A) $50,000,000 and (B) the aggregate amount
available for drawing under any Non-Facility Letter of Credit incurred
pursuant to clause (xiii) of this Section 9.01;
() Indebtedness in respect of taxes, assessments, governmental
charges and claims for labor, materials or supplies, to the extent
that payment thereof is not required pursuant to Section 8.04;
() Indebtedness constituting Accommodation Obligations to the
extent permitted by Section 9.05(i) through (viii);
() subject to the proviso in clause (xiii) of this Section
9.01, to the extent permitted by Article X and in any event in an
aggregate outstanding principal amount not to exceed $15,000,000 at
any time, Capital Leases and purchase money Indebtedness incurred by
the Company and/or any Domestic Subsidiary (or by the Person whose
Capital Stock or assets were purchased by the Company or any Domestic
Subsidiary in connection with a Permitted Acquisition) to finance the
acquisition of fixed assets, and Indebtedness incurred by the Company
and/or any such Domestic Subsidiary to refinance, extend, renew,
refund or replace such Capital Leases and purchase money Indebtedness;
() Indebtedness (other than Funded Debt) incurred in connection
with Customary Permitted Liens;
() Indebtedness arising from intercompany loans (A) from the
Company to any Subsidiary Guarantor or from any Subsidiary Guarantor
to any Subsidiary of such Subsidiary Guarantor that is also a
Guarantor; (B) from the Company or any Subsidiary Guarantor to any
Non-Guarantor Domestic Subsidiary, Permitted Joint Venture or any
Foreign Subsidiary which Indebtedness shall not cause the Maximum Non-
Guarantor Subsidiary Investment Amount to exceed $30,000,000 in the
aggregate at any time; (C) from any Subsidiary of any Subsidiary
Guarantor to such Guarantor; or (D) from any Subsidiary of the Company
to the Company; provided that the loans referred to in clause (A)
shall be evidenced by an intercompany promissory notes substantially
in the form of Exhibit J, payable to the Company or the applicable
Subsidiary Guarantor, as the case may be, which promissory notes shall
be delivered and pledged to the Administrative Agent as part of
Collateral;
() Indebtedness of (A) the Company arising pursuant to Interest
Rate Contracts entered into with any Lender for the purpose of hedging
the Company's interest rate exposure and not for speculative purposes,
(B) the Company or any Subsidiary of the Company arising pursuant to
Currency Agreements entered into in the ordinary course of the
Company's or such Subsidiary's business and (C) the Company arising
pursuant to Currency Agreements entered into for the purpose of
hedging the Company's foreign exchange exposure in respect of
Revolving Loans made for the purpose of financing the acquisition of
ARUP and providing for its working capital needs in a notional
principal amount not to exceed $30,000,000;
() Indebtedness incurred by any Foreign Subsidiary (other than
Indebtedness owing to the Company or any Domestic Subsidiary) not in
excess of an aggregate outstanding principal amount of $10,000,000 at
any time (plus the aggregate outstanding principal amount of any
Indebtedness in support of which the Company or any Subsidiary
Guarantor has entered into an Accommodation Obligation pursuant to
Section 9.05(iv));
() Indebtedness in respect of the Subordinated Notes;
() Indebtedness in respect of metals futures contracts entered
into by the Company and its Subsidiaries in the ordinary course of
business and not for speculative purposes;
() In addition to Indebtedness permitted by clauses (i) through
(xi) above, Indebtedness of the Company or any Subsidiary incurred
after the date hereof (in respect of Non-Facility Letters of Credit or
otherwise) in an amount not to exceed an aggregate outstanding
principal amount of $30,000,000 (less the amount of Indebtedness
incurred pursuant to clause (vi) of this Section 9.01) at any time,
provided, however, in the event any Indebtedness incurred pursuant to
this clause (xiii) or clauses (vi) and (xv) of this Section 9.01 is in
excess of a principal amount of $10,000,000, then the lender or group
of lenders providing such Indebtedness shall have entered into an
intercreditor agreement with the Administrative Agent on terms
acceptable to the Administrative Agent (or, if the Administrative
Agent is such lender or one of the group of such lenders, the
Requisite Lenders), pursuant to which such lender or group of lenders
would agree not to exercise any blockage rights it may have under the
Subordinated Note Indenture or the 1998 Subordinated Note Indenture
upon the occurrence of a non-payment default without first obtaining
the consent of the Administrative Agent (or, if the Administrative
Agent is such lender or one of the group of such lenders, the
Requisite Lenders);
() Indebtedness in connection with borrowings against the cash
surrender value of life insurance maintained by the Company or any of
its Subsidiaries; provided, however, that unless such Indebtedness is
otherwise permitted to be incurred pursuant to clause (xiii) above,
the proceeds of such borrowings shall be used solely to pay the
premiums with respect to such insurance policies and any accrued and
unpaid interest on, and any premiums or penalties relating to, any
such borrowings, and any extensions, renewals, refundings or
replacements of such Indebtedness; provided that any such extension,
renewal, refunding or replacement is in an aggregate principal amount
not greater than the principal amount of, and is on terms no less
favorable to the Company or such Subsidiary than the terms of, the
Indebtedness so extended, renewed, refunded or replaced;
() subject to the proviso in clause (xiii) of this Section
9.01, Indebtedness incurred (other than the Obligations) or assumed in
connection with or as a result of a Permitted Acquisition in an
aggregate amount not to exceed $15,000,000 at any time outstanding;
and
() Indebtedness in respect of the 1998 Subordinated Notes in an
aggregate principal amount not to exceed $120,000,000 (less any amount
thereof required to be redeemed as a Special Redemption (as defined in
the 1998 Subordinated Note Indenture)); provided that the net proceeds
of the issuance of such notes shall have been used solely for the
purpose of repurchasing, repaying or defeasing Subordinated Notes.
9.0. Sales of Assets. None of the Company or any of the
Domestic Subsidiaries shall sell, assign, transfer, lease, convey or otherwise
dispose of any Property, whether now owned or hereafter acquired, or any
income or profits therefrom, or enter into any agreement to do so, except:
() sales, leases, assignments, transfers, conveyances or other
dispositions of Inventory in the ordinary course of business;
provided, however, that any such sale, transfer or other disposition
of Inventory to any Non-Guarantor Domestic Subsidiary, Permitted Joint
Venture or Foreign Subsidiary shall not cause the Maximum Non-
Guarantor Subsidiary Investment Amount to exceed $30,000,000 in the
aggregate at any time;
() sales, assignments, transfers, conveyances or other
dispositions (other than Leases or subleases of Leases) of Properties
outside of the ordinary course of business not to exceed in the
aggregate more than $5,000,000 in any Fiscal Year (exclusive of any
sales or other dispositions permitted in clause (vii) below);
provided, however, that any such sale, transfer or other disposition
of such Properties to any Non-Guarantor Domestic Subsidiary, Permitted
Joint Venture or Foreign Subsidiary shall not cause the Maximum Non-
Guarantor Subsidiary Investment Amount to exceed $30,000,000 in the
aggregate at any time;
() in addition to dispositions permitted under clauses (i) and
(ii) of this Section 9.02, the disposition of Equipment of the Company
or any of the Domestic Subsidiaries if such Equipment is obsolete or
no longer useful in the ordinary course of the Company's or such
Domestic Subsidiary's business or otherwise is not required to be
maintained by the Company or such Domestic Subsidiary pursuant to
Section 8.10;
() assignments and licenses of intellectual Property of the
Company or any of its Subsidiaries in the ordinary course of business;
() the sale or transfer of Property of the Company or any
Domestic Subsidiary to any Subsidiary Guarantor or the Company;
() (A) subleases of Leases or Leases, to the extent at any
point in time such subleases or Leases have anticipated annual rental
payments of not more than $2,000,000 in the aggregate since the
Effective Date and (B) subleases of Leases or Leases of any Real
Property listed on Schedule 9.02;
() the Company may from time to time sell, assign, transfer,
convey or otherwise dispose of any or all of the Properties specified
in Schedule 9.02; provided that the Net Cash Proceeds of such
dispositions are applied to the Obligations to the extent required
under Section 3.01(b);
() Sale and Leaseback Transactions to the extent permitted by
Section 9.10; and
() the sale, transfer, conveyance or other disposition of any
or all of the Properties of the Company or any Subsidiary of the
Company in connection with the planned divestiture or divestitures of
a certain operating unit of the Company disclosed to the Syndication
Agent on or prior to August 17, 1998, provided that (A) the aggregate
amount of Net Cash Proceeds of such divestiture or divestitures does
not exceed the aggregate sum of $10,000,000 after August 17, 1998 and
(B) such Net Cash Proceeds are applied to the Obligations to the
extent required under Section 3.01(b).
9.0. Liens. None of the Company or any of the Domestic
Subsidiaries shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to any of their respective Property except:
() Liens created by the Loan Documents;
() Permitted Existing Liens;
() Customary Permitted Liens;
() purchase money Liens granted by the Company or any Domestic
Subsidiary (including the interest of a lessor under a Capital Lease)
and Liens to which any Property is subject at the time of the
Company's or any Domestic Subsidiary's acquisition thereof) securing
Indebtedness permitted under Section 9.01(vi) and limited in each case
to the Property purchased or subject to such lease;
() to the extent Indebtedness secured thereby is permitted
to be extended, renewed, refunded or refinanced pursuant to clauses
(ii), (vi) or (xiv) of Section 9.01, a future Lien on any Property
which is subject to a Lien described in clause (ii), (iv) or (vii) of
this Section 9.03, if such future Lien attaches only to the same
Property and secures only such permitted extensions, renewals,
replacements or refinancings;
() Liens securing reimbursement obligations with respect to
commercial letters of credit which constitute Non-Facility Letters of
Credit; provided that such Liens only attach to the Property being
acquired with the proceeds of such Non-Facility Letters of Credit;
() other Liens securing not more than $5,000,000 of any
Indebtedness or Accommodation Obligation permitted hereunder; and
() Liens securing Indebtedness assumed in connection with, or
continuing to exist after but not incurred in connection with, a
Permitted Acquisition as permitted by Section 9.01(xv), which Liens
were in effect prior to the consummation of the Permitted Acquisition.
9.0. Investments. None of the Company or any of the Domestic
Subsidiaries shall directly or indirectly make or own any Investment except:
() Investments in cash and Cash Equivalents;
() Permitted Existing Investments;
() Investments 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;
() Investments (A) by the Company or any Subsidiary Guarantor
in any Non-Guarantor Domestic Subsidiary, Permitted Joint Venture or
Foreign Subsidiary which Investments shall not cause the Maximum Non-
Guarantor Subsidiary Investment Amount to exceed $30,000,000 in the
aggregate at any time or (B) by the Company or any Guarantor in any
Subsidiary Guarantor to the extent a loan or loans made by the Company
or such Guarantor are permitted pursuant to Section 9.01(viii)(A) or
Section 9.01(viii)(C);
() (A)loans or advances to employees of the Company or any of
its Subsidiaries, which loans and advances shall not in the aggregate
(but excluding advances referred to in clause (B) hereof) exceed
$4,000,000 outstanding at any time and (B)advances to sales
representatives of the Company or any of its Subsidiaries in the
ordinary course of business and consistent with past practices;
() additional Investments not otherwise permitted in this
Section 9.04 not to exceed $10,000,000 in the aggregate at any one time
outstanding;
() Investments received by the Company or any Domestic
Subsidiary as consideration for the sale or other disposition of
Property permitted by Section 9.02;
() Investments made pursuant to Permitted Acquisitions;
provided, however, no Investment made in any Non-Guarantor Domestic
Subsidiary, Permitted Joint Venture or Foreign Subsidiary (whether
existing before, or after giving effect to, such Permitted
Acquisition) pursuant to such Permitted Acquisition shall cause the
Maximum Non-Guarantor Subsidiary Investment Amount to exceed
$30,000,000 in the aggregate at any time;
() in addition to Investments in Permitted Acquisitions
permitted pursuant to clause (viii) above, Investments made by the
Company in Insilco GmbH and its Subsidiaries of up to $5,000,000 in
the aggregate since the Effective Date;
() Investments in Interest Rate Contracts permitted pursuant to
Section 9.01(ix)(A) and metals future contracts permitted pursuant to
Section 9.01(xii); and
() the purchase of shares of Capital Stock of Holdco in
connection with the Company's deferred compensation plans or
management incentive plans in an amount not to exceed the sum of
$5,000,000 in the aggregate in any Fiscal Year.
9.0. Accommodation Obligations. None of the Company or any of
the Subsidiaries shall directly or indirectly create or become or be liable
with respect to any Accommodation Obligation, except:
() Permitted Existing Accommodation Obligations;
() Accommodation Obligations arising under the Loan Documents;
() obligations, warranties and indemnities, not with respect to
Indebtedness of any Person, which have been or are undertaken or made
in the ordinary course of business;
() Accommodation Obligations of the Company or any Subsidiary
Guarantor in respect of any Non-Guarantor Domestic Subsidiary,
Permitted Joint Venture or Foreign Subsidiary, which Accommodation
Obligations shall not cause the Maximum Non-Guarantor Subsidiary
Investment Amount to exceed $30,000,000 at any time;
() Accommodation Obligations of any Subsidiary Guarantor in
respect of obligations of the Company or of any Subsidiary of such
Subsidiary Guarantor that is also a Guarantor;
() reimbursement obligations under Non-Facility Letters of
Credit;
() Accommodation Obligations with respect to Customary
Permitted Liens, other obligations, warranties and indemnities (other
than with respect to Indebtedness) in the ordinary course of business
and with respect to customary representations, warranties and
indemnities entered into in connection with the sale or other
disposition of Property or in connection with any Permitted
Acquisition;
() Accommodation Obligations of the Company in respect of any
Subsidiary Guarantor; and
() Accommodation Obligations constituting Indebtedness to the
extent permitted under Section 9.01.
9.0. Restricted Junior Payments. Subject to Section 9.16,
none of the Company or any of the Domestic Subsidiaries shall declare or make
any Restricted Junior Payment except:
() dividends or other distributions made to the Company or any
of the Domestic Subsidiaries by any Subsidiary of the Company;
() the purchase or redemption of Capital Stock in connection
with a simultaneous sale of an equivalent amount of Capital Stock for
the same purchase or redemption price;
() purchase of shares of Capital Stock in connection with
claims made in bankruptcy proceedings pursuant to the Plan of
Reorganization not to exceed $2,000,000 in the aggregate in any Fiscal
Year;
() payments with respect to employee or director stock options,
equity unit plans, stock incentive plans or restricted stock plans of
the Company; provided, the aggregate amount of such payments does not
exceed $6,000,000 in any Fiscal Year or $12,000,000 in the aggregate
since August 17, 1998;
() repurchases, repayments and defeasances of the Subordinated
Notes with proceeds from the issuance and sale of the 1998
Subordinated Notes and, to the extent such proceeds have been fully
utilized for such purpose, proceeds of Loans;
() regularly scheduled payments of interest in respect of
(A) the Subordinated Notes, (B) the 1998 Subordinated Notes and
(C) Indebtedness of the Company or any Domestic Subsidiary that is
expressly subordinated in writing to the Obligations and permitted
pursuant to Section 9.01(xiii) (but not including the Holdco Loan or
any other loan made by Holdco to the Company or any of the Company's
Subsidiaries), but only if, in each case, such payment is permitted to
be made pursuant to the terms of the Subordinated Note Indenture, the
1998 Subordinated Note Indenture or such subordinated Indebtedness, as
the case may be;
() distributions, loans and advances or other payments to
Holdco for the purpose of allowing Holdco to make the payments
contemplated in Section 9.04(v)(A) (provided that Holdco agrees to
repay such amount when the loans referred to in such section are
repaid to Holdco), Section 9.06(iii) and Section 9.06(iv), but only to
the extent such payments would be permitted to be made by the Company
pursuant to such sections;
() so long as no Event of Default has occurred and is
continuing or would result therefrom, distributions, loans and
advances or other payments, including the payment of principal and
interest on the Holdco Loan, to Holdco not in excess of $750,000 in
any Fiscal Year, for the purpose of allowing Holdco to pay ordinary
operating and overhead expenses; provided, however, the Company shall
be permitted to pay principal and interest in respect of the Holdco
Loan for the purpose of allowing Holdco to pay transaction costs
related to the transactions contemplated in the Merger Agreements to
the extent such costs become due and payable after August 17, 1998;
and
() so long as no Event of Default has occurred and is
continuing or would result therefrom, distributions, loans, advances
or other payments to Holdco solely for the purpose of allowing Holdco
to pay cash interest on the Holdco Discount Notes; provided, however,
no such distribution or other payment made pursuant to this Section
9.06(x) shall be permitted (A) prior to February 15, 2004 and
(B) unless the chief financial officer or treasurer has delivered an
Officer's Certificate to the Administrative Agent certifying that the
Leverage Ratio (calculated on a pro forma basis after giving effect to
such payment or distribution) for the twelve-month period ending on
the last day of the most recent month with respect to which such
financial information is available to the Company (but in no event
more recent than the month immediately prior to the most recently
ended month) is not greater than 2.50 to 1.
9.0. Conduct of Business. None of the Company or any of its
Subsidiaries shall engage in any business (pursuant to a Permitted Joint
Venture, Permitted Acquisition or otherwise) other than the businesses engaged
in by the Company or such Subsidiaries on the date hereof and any business or
activities which are substantially similar, related or incidental thereto,
except to the extent otherwise permitted hereunder. The Company agrees to
cause Insilco GmbH not to engage in any business or activity other than acting
as a holding company for each of its Subsidiaries and engaging in the
transactions contemplated in any agreement for the acquisition of any such
Subsidiary.
9.0. Transactions with Affiliates. The Company shall not, and
shall not permit any of its Subsidiaries, except as otherwise expressly
permitted herein, to do any of the following: (i) make any Investment in an
Affiliate of the Company or any of the Company's Subsidiaries; (ii) transfer,
sell, lease, assign or otherwise dispose of any Property to any Affiliate of
the Company or any of the Company's Subsidiaries; (iii) merge into or
consolidate with or purchase or acquire assets from any Affiliate of the
Company or any of the Company's Subsidiaries; (iv) repay any Indebtedness to
any Affiliate of the Company or any of the Company's Subsidiaries; (v) pay any
royalties to any Affiliate of the Company or any of the Company's
Subsidiaries; (vi) pay any management fees to any Affiliate of the Company or
any of the Company's Subsidiaries; or (vii) enter into any other transaction
directly or indirectly with or for the benefit of any Affiliate of the Company
or any of the Company's Subsidiaries (including, without limitation,
guaranties and assumptions of obligations of any such Affiliate) except in
each case for transactions (A) in the ordinary course of business and
(B) either on a basis no less favorable to the Company or such Subsidiary as
would be obtained in a comparable arm's length transaction with a Person not
an Affiliate, or in the case of compensation payable to any officer or
director of the Company or such Subsidiary, in an amount approved by the Board
of Directors of the Company or such Subsidiary.
9.0. Restriction on Fundamental Changes. () Except in
connection with a Permitted Joint Venture or a Permitted Acquisition, none of
the Company or any of the Domestic Subsidiaries or Foreign Borrowers shall
(i) enter into any merger or consolidation, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), except for a merger or
consolidation of (A) any Non-Guarantor Domestic Subsidiary into another
Non-Guarantor Domestic Subsidiary or (B) any Wholly Owned Non-Guarantor
Domestic Subsidiary into the Company or a Subsidiary Guarantor (with the
Company or such Subsidiary Guarantor as the surviving corporation); provided
that, after giving effect to any such merger or consolidation, no Default or
Event of Default shall have occurred or be continuing, (ii) enter into any
partnership or joint venture, or (iii) enter into or permit any transaction or
series of transactions in which the Company and/or any of the Domestic
Subsidiaries acquire all or any significant portion of the Capital Stock
and/or assets of another Person.
() The Company shall not permit any Subsidiary Guarantor or
Foreign Borrower to cease to be a direct or indirect Wholly Owned Subsidiary
of the Company.
9.. Sales and Leasebacks. Except for and excluding the real
property located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in Oak Creek, Wisconsin, which
the Company will lease back on a temporary basis after the sale thereof, none
of the Company or any of the Domestic Subsidiaries shall enter into any Sale
and Leaseback Transaction other than a Sale and Leaseback Transaction on terms
and conditions satisfactory to the Administrative Agent relating to the sale
and lease of owned Property where, after giving effect to all such Sale and
Leaseback Transactions, the aggregate Fair Market Value of all such Property
sold does not exceed $20,000,000 since the Effective Date.
9.. Margin Regulations; Securities Laws. None of the Company
or any of the Company's Subsidiaries, shall use all or any portion of the
proceeds of any credit extended hereunder to purchase or carry Margin Stock in
violation of Regulation U.
9.. ERISA. The Company shall not, to the extent the following
actions, individually or in the aggregate, would have, or are reasonably
likely to have, a Material Adverse Effect:
() engage, or permit any ERISA Affiliate to engage, in any
prohibited transaction described in Sections 406 of ERISA or 4975 of the
Internal Revenue Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from the
DOL;
() permit to exist any accumulated funding deficiency (as
defined in sections 302 of ERISA and 412 of the Internal Revenue
Code), with respect to any Benefit Plan, whether or not waived;
() terminate, or permit any ERISA Affiliate to terminate, any
Benefit Plan which would result in any material liability of Company
or any ERISA Affiliate under Title IV of ERISA;
() fail to make any contribution or payment to any
Multiemployer Plan which Company or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto;
() fail, or permit any ERISA Affiliate to fail, to pay any
required installment or any other payment required under Section 412
of the Internal Revenue Code on or before the due date for such
installment or other payment;
() amend, or permit any ERISA Affiliate to amend, a Plan
resulting in an increase in current liability for the plan year such
that the Company or any ERISA Affiliate is required to provide
security to such Plan under Section 401(a)(29) of the Internal Revenue
Code;
() permit any unfunded liabilities with respect to any Foreign
Pension Plan; or
() fail, or permit any Subsidiary or ERISA Affiliate to fail,
to pay any required contributions or payments to a Foreign Pension
Plan on or before the due date for such required installment or
payment.
9.. Issuance or Sale of Capital Stock. Neither the Company
nor any of its Subsidiaries shall (i) grant any rights (either preemptive or
others) to subscribe for or to purchase, or any option for the purchase of,
its Capital Stock or (ii) create calls, commitments, claims of any character
relating to any of its Capital Stock, other than, in the case of Capital Stock
of the Company's Subsidiaries, as permitted pursuant to Section 9.07 or
Section 9.09. Other than as permitted pursuant to Section 9.09(a) or 9.02,
the Company shall not sell or otherwise dispose of, or permit the sale or
disposition of, any shares of the Capital Stock of any Subsidiary Guarantor or
Foreign Borrower.
9.. Constituent Documents. None of the Company or any of the
Company's Subsidiaries shall materially amend, modify or otherwise change any
of the terms or provisions in any of their respective Constituent Documents as
in effect on the Effective Date (except for amendments, modifications or other
changes to such Constituent Documents that, in the judgment of the
Administrative Agent, do not materially affect the rights and privileges of the
Company or any of its Subsidiaries under the Loan Documents, or the interests
of the Administrative Agent, the CoAgents, the Lenders or the Issuing Banks
under the Loan Documents or in the Collateral).
9.. Fiscal Year. None of the Company or any of the Company's
consolidated Subsidiaries shall change its Fiscal Year for accounting or tax
purposes from a period consisting of the 12-month period ending on December 31
of each calendar year.
9.. Cancellation of Debt; Prepayment; Certain Amendments.
Neither the Company nor any of the Domestic Subsidiaries shall (i) cancel any
material claim or debt or amend or modify the terms thereof, except in the
ordinary course of its business, in connection with the reasonable
modification to payment terms, in connection with the Plan of Reorganization,
in connection with those notes set forth in Section 3 of Schedule 1.01.3 or
otherwise in connection with the compromise and settlement of disputes and
except for Indebtedness (whether or not evidenced by a promissory note pledged
to the Administrative Agent) incurred prior to the Effective Date arising from
intercompany loans not in excess of the amounts of such Indebtedness set forth
on Schedule 9.16, (ii) voluntarily prepay, redeem, purchase, repurchase,
defease or retire the Subordinated Notes, the 1998 Subordinated Notes or any
other long-term Indebtedness (other than the Obligations) (except as permitted
by Section 9.06), (iii) amend, supplement or otherwise modify the terms of the
Subordinated Notes, the Subordinated Note Indenture, the 1998 Subordinated
Notes, the 1998 Subordinated Note Indenture or the warrants for the purchase
of Holdco common stock issued in connection with the 1998 Subordinated Notes
(except amendments, supplements or other modifications to such terms that, in
the reasonable judgment of the Administrative Agent, do not materially
adversely affect the rights and privileges of the Company under the
Subordinated Notes or the Subordinated Note Indenture or the interests of the
Administrative Agent, the Lenders or the Issuing Banks under the Loan
Documents or in the Collateral and any amendment that would permit the
Subsidiary Guarantors to guarantee the obligations of the Company under the
Subordinated Note Indenture and the 1998 Subordinated Note Indenture), or
(iv) amend, supplement or otherwise modify the terms of any of the Merger
Documents (except amendments, supplements or other modifications to such terms
that, in the reasonable judgment of the Administrative Agent, do not
materially adversely affect the rights and privileges of the Company under
such documents or the interests of the Administrative Agent, the Lenders or the
Issuing Banks under the Loan Documents or in the Collateral).
9.. Environmental Matters. None of the Company nor any of
Company's Subsidiaries shall become subject to any Liabilities and Costs which
would have a Material Adverse Effect arising out of or related to (a) the
Release or threatened Release at any location of any Contaminant into the
environment, or any Remedial Action in response thereto, or (b) any violation
of any Environmental, Health and Safety Requirements of Law.
9.. Foreign Subsidiary. No Foreign Subsidiary shall enter
into any Accommodation Obligation with respect to any Indebtedness of the
Company or any Domestic Subsidiary (other than the Obligations) or grant or
permit to exist any Lien on its Property to secure any such Indebtedness
(other than those Accommodation Obligations and Liens set forth on Schedule
9.18 hereto).
9.. No New Restrictions on Subsidiary Dividends. Except as
may be required by any applicable Requirements of Law or pursuant to the Loan
Documents, the Company will not agree, or permit any of the Domestic
Subsidiaries to agree, to create or otherwise become effective any consensual
encumbrance or restriction of any kind on the ability of any Domestic
Subsidiary to (i) pay, directly or indirectly, dividends or make any other
distributions in respect of its Capital Stock, (ii) make any other
distribution or transfer of funds or assets or (iii) make loans or advances to
or other Investments in, or pay any Indebtedness or other obligation owing to,
the Company.
9.. Accounting Changes. The Company shall not make, nor
permit any of its Subsidiaries to make, any material (as defined in GAAP)
change in accounting treatment and reporting practices or tax reporting
treatment, except as required or permitted by GAAP or law and concurred with,
if applicable, by the Company's independent accountants and disclosed to the
Administrative Agent or as otherwise permitted by the Loan Documents.
ARTICLE
FINANCIAL COVENANTS
Each of the Borrowers covenants and agrees that so long as any
Revolving Credit Commitment is outstanding and thereafter until payment in
full of all of the Obligations, unless the Requisite Lenders shall otherwise
give prior written consent thereto:
10.0. [Intentionally omitted].
10.0. Minimum Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio of the Company and its Subsidiaries on a consolidated basis, as
determined as of the last day of each fiscal quarter of the Company set forth
below for the twelve month period ending on such date, shall not be less than
the minimum ratio set forth opposite such fiscal quarter:
Fiscal Quarter Minimum Ratio
-------------- -------------
Second fiscal quarter of 1998 1.10 to 1
Third fiscal quarter of 1998 1.10 to 1
Fourth fiscal quarter of 1998 1.10 to 1
First fiscal quarter of 1999 1.10 to 1
Second fiscal quarter of 1999 1.10 to 1
Third fiscal quarter of 1999 1.10 to 1
Fourth fiscal quarter of 1999 1.10 to 1
First fiscal quarter of 2000 1.10 to 1
Second fiscal quarter of 2000 1.20 to 1
Third fiscal quarter of 2000 1.20 to 1
Fourth fiscal quarter of 2000 1.20 to 1
First fiscal quarter of 2001 1.20 to 1
Second fiscal quarter of 2001 1.30 to 1
Third fiscal quarter of 2001 1.30 to 1
Fourth fiscal quarter of 2001 1.30 to 1
First fiscal quarter of 2002 1.40 to 1
Second fiscal quarter of 2002 1.50 to 1
Third fiscal quarter of 2002 1.60 to 1
Fourth fiscal quarter of 2002 1.70 to 1
First fiscal quarter of 2003 1.80 to 1
Second fiscal quarter of 2003 and thereafter 2.00 to 1
10.0. Minimum Interest Coverage Ratio. The Interest Coverage
Ratio of the Company and its Subsidiaries on a consolidated basis, as
determined as of the last day of each fiscal quarter of the Company set forth
below for the twelve month period ending on such date, shall not be less than
the minimum ratio set forth opposite such fiscal quarter:
Fiscal Quarter Minimum Ratio
-------------- -------------
Second fiscal quarter of 1998 2.00 to 1
Third fiscal quarter of 1998 1.90 to 1
Fourth fiscal quarter of 1998 1.90 to 1
First fiscal quarter of 1999 1.90 to 1
Second fiscal quarter of 1999 1.90 to 1
Third fiscal quarter of 1999 1.90 to 1
Fourth fiscal quarter of 1999 1.90 to 1
First fiscal quarter of 2000 1.90 to 1
Second fiscal quarter of 2000 2.00 to 1
Third fiscal quarter of 2000 2.00 to 1
Fourth fiscal quarter of 2000 2.00 to 1
First fiscal quarter of 2001 2.00 to 1
Second fiscal quarter of 2001 2.15 to 1
Third fiscal quarter of 2001 2.15 to 1
Fourth fiscal quarter of 2001 2.15 to 1
First fiscal quarter of 2002 2.25 to 1
Second fiscal quarter of 2002 2.30 to 1
Third fiscal quarter of 2002 2.40 to 1
Fourth fiscal quarter of 2002 2.50 to 1
First fiscal quarter of 2003 2.80 to 1
Second fiscal quarter of 2003 and thereafter 3.25 to 1
10.0. Maximum Leverage Ratio. The Leverage Ratio of the
Company and its Subsidiaries on a consolidated basis, as determined as of the
last day of each fiscal quarter of the Company set forth below for the twelve
month period ending on such date, shall not be greater than the maximum amount
set forth opposite such fiscal quarter:
Fiscal Quarter Minimum Ratio
-------------- -------------
Second fiscal quarter of 1998 5.00 to 1
Third fiscal quarter of 1998 5.50 to 1
Fourth fiscal quarter of 1998 5.50 to 1
First fiscal quarter of 1999 5.50 to 1
Second fiscal quarter of 1999 5.25 to 1
Third fiscal quarter of 1999 5.25 to 1
Fourth fiscal quarter of 1999 5.00 to 1
First fiscal quarter of 2000 5.00 to 1
Second fiscal quarter of 2000 4.75 to 1
Third fiscal quarter of 2000 4.75 to 1
Fourth fiscal quarter of 2000 4.50 to 1
First fiscal quarter of 2001 4.50 to 1
Second fiscal quarter of 2001 4.25 to 1
Third fiscal quarter of 2001 4.25 to 1
Fourth fiscal quarter of 2001 4.00 to 1
First fiscal quarter of 2002 4.00 to 1
Second fiscal quarter of 2002 3.75 to 1
Third fiscal quarter of 2002 3.75 to 1
Fourth fiscal quarter of 2002 3.50 to 1
First fiscal quarter of 2003 3.25 to 1
Second fiscal quarter of 2003 and thereafter 3.00 to 1
10.0. Maximum Capital Expenditures. Capital Expenditures made
or incurred by the Company and its Subsidiaries on a consolidated basis during
each Fiscal Year set forth below shall not exceed in the aggregate the amount
set forth opposite such Fiscal Year:
Fiscal Quarter Minimum Ratio
-------------- -------------
Fiscal Year 1998 $30,000,000
Fiscal Year 1999 $30,000,000
Fiscal Year 2000 $30,000,000
Fiscal Year 2001 $32,000,000
Fiscal Year 2002 $34,000,000
Fiscal Year 2003 $36,000,000
Fiscal Year 2004 $38,000,000;
provided, however, if the maximum amount set forth above opposite any Fiscal
Year exceeds the amount of Capital Expenditures made or incurred by the
Company and its Subsidiaries on a consolidated basis for such Fiscal Year,
then Capital Expenditures made or incurred by the Company and its Subsidiaries
on a consolidated basis for the succeeding Fiscal Year may exceed the maximum
amount set forth above opposite such succeeding Fiscal Year by the lesser of
(i) 25% of the maximum amount for the preceding Fiscal Year and (ii) the
amount of such excess from the immediately preceding Fiscal Year (such excess
amount being available only for use in such succeeding Fiscal Year but being
treated as the first amount spent in such succeeding Fiscal Year).
ARTICLE
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.0. Events of Default. Each of the following occurrences
shall constitute an Event of Default hereunder:
() Failure to Make Payments When Due. Any Borrower shall fail
to pay (i) when due any principal or interest on the Loans (including the
Reimbursement Obligations) or (ii) any other Obligation, and (x) if such
non-payment relates to interest on the Loans (including the Reimbursement
Obligations), such non-payment continues for a period of three (3) Business
Days after the due date thereof and (y) if such non-payment relates to
Obligations other than interest or principal, such non-payment continues for a
period of five (5) Business Days after the due date thereof.
() Breach of Certain Covenants. Any Borrower or any Subsidiary
Guarantor shall fail to perform or observe duly and punctually any agreement,
covenant or obligation binding on such Person under (i) Sections 7.02, 7.03,
8.01, 8.02 or 8.06; or (ii) Article IX (other than Sections 9.08, 9.12,
9.16(i) , 9.19 and, solely with respect to Environmental Liens, Section 9.03)
or Article X.
() Breach of Representation or Warranty. Any written
representation or warranty made or deemed made by Holdco, any Borrower, any
Subsidiary Guarantor or any other Subsidiary of the Borrower to the
Administrative Agent, the CoAgents, any Lender or any Issuing Bank herein or
in any other Loan Document or in any written statement or certificate at any
time given by any such Person pursuant to any Loan Document shall be false or
misleading in any material respect on the date made (or deemed made).
() Other Defaults. Any Borrower shall default in the
performance of or compliance with any term contained herein (other than as
covered by paragraphs (a), (b) or (c) of this Section 11.01), or Holdco, any
Borrower or any of its Subsidiaries shall default in the performance of or
compliance with any term contained in any other Loan Document, and such
default shall continue for (i) fifteen (15) Business Days after the occurrence
thereof with respect to any term contained in Sections 7.01, 7.05, 7.06, 8.07
or 9.08; and (ii) thirty (30) days after the occurrence thereof with respect
to any other term.
() Default as to Other Indebtedness; Operating Leases. Holdco,
any Borrower or any of the Domestic Subsidiaries shall fail to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) with respect to any Indebtedness (other
than an Obligation) in excess of a principal amount of $10,000,000; or any
breach, default or event of default shall occur, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any such
Indebtedness, if the effect thereof is to cause an acceleration, mandatory
redemption or other required repurchase of such Indebtedness, or permit the
holder(s) of such Indebtedness to accelerate the maturity of such Indebtedness
or require the redemption or other repurchase of such Indebtedness; or any
such Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by Holdco, such Borrower or any of the Domestic Subsidiaries
(other than by a regularly scheduled required prepayment, mandatory redemption
or required repurchase) prior to the stated maturity thereof; or any material
breach, default or event of default remaining uncured for a period of thirty
(30) days after notice from the applicable landlord or owner on the part of
Holdco, such Borrower or any of the Domestic Subsidiaries shall occur under
any Operating Lease to which Holdco, such Borrower or any of the Domestic
Subsidiaries is a party pursuant to which the annual rental payments of such
Operating Lease equal or exceed $1,000,000, unless such default under any such
Operating Lease is being contested in good faith by Holdco, such Borrower or
such Domestic Subsidiary, as the case may be, by appropriate proceedings
diligently instituted and conducted and with respect to which appropriate
reserves have been set aside therefor in conformity with GAAP.
() Involuntary Bankruptcy; Appointment of Receiver, Etc.
() An involuntary case shall be commenced against Holdco, the
Company or any of its Subsidiaries and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Holdco, the Company or any of its Subsidiaries
in an involuntary case, under any applicable bankruptcy, insolvency or other
similar law now or hereinafter in effect; or any other similar relief shall be
granted under any applicable federal, state, local or foreign law.
() A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over Holdco, the Company or
any of its Subsidiaries or over all or a substantial part of the Property of
Holdco, the Company or any of its Subsidiaries shall be entered; or an interim
receiver, trustee or other custodian of Holdco, the Company or any of its
Subsidiaries or of all or a substantial part of the Property of Holdco, the
Company or any of its Subsidiaries shall be appointed or a warrant of
attachment, execution or similar process against any substantial part of the
Property of Holdco, the Company or any of its Subsidiaries shall be issued and
any such event shall not be stayed, dismissed, bonded or discharged within
sixty (60) days after entry, appointment or issuance.
() Voluntary Bankruptcy; Appointment of Receiver, Etc. Holdco,
the Company or any of its Subsidiaries shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under
any such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or Holdco, the Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors.
() Judgments. Any judgment, writ, order or warrant of
attachment, or other similar process shall be rendered against Holdco, any
Borrower or any of the Domestic Subsidiaries or any of their respective
Properties involving in any single case or in the aggregate an amount
exceeding $10,000,000 in excess of applicable insurance coverage is (are)
entered and remains undischarged, unvacated and unstayed for a period of sixty
(60) days.
() Dissolution. Any order, judgment or decree shall be entered
against Holdco, the Company or any of its Subsidiaries, decreeing its
involuntary dissolution or other similar proceeding, and such order shall
remain undischarged and unstayed for a period in excess of sixty (60) days; or
Holdco, any Borrower or any of the Domestic Subsidiaries shall otherwise
dissolve or cease to exist except as specifically permitted hereby.
() Loan Documents; Failure of Security. At any time, for any
reason (i) any Loan Document ceases to be in full force and effect or Holdco,
the Company or any of its Subsidiaries party thereto seeks to repudiate its
obligations thereunder and the Liens intended to be created thereby are, or
Holdco, the Company or any such Subsidiary seeks to render such Liens, invalid
or unperfected, or (ii) Liens in favor of the Administrative Agent, the
CoAgents, the Issuing Banks and/or the Lenders contemplated by the Loan
Documents shall, at any time, for any reason, be invalidated or otherwise
cease to be in full force and effect, or such Liens shall be subordinated or
shall not have the priority contemplated hereby or by the other Loan Documents.
() Termination Event. Any Termination Event occurs which the
Administrative Agent believes has or is reasonably likely to have a Material
Adverse Effect.
() Waiver of Minimum Funding Standard. If the plan
administrator of any Plan applies under Section 412(d) of the Internal Revenue
Code for a waiver of the minimum funding standards of Section 412(a) of the
Internal Revenue Code and the Administrative Agent believes the substantial
business hardship upon which the application for the waiver is based has or is
reasonably likely to have a Material Adverse Effect.
() Change of Control. A Change of Control shall occur.
A Default or an Event of Default shall be deemed "continuing" until cured or
until waived in accordance with Section 13.07; provided, however, a Default
under Sections 7.01, 7.04 or 7.06(c) arising from the failure of the Company
to deliver to the Administrative Agent any item required to be delivered
pursuant to such sections within the appropriate time period specified for
such item shall not be deemed "continuing" if the Administrative Agent has
extended the time period for the delivery of such item pursuant to the terms
of such sections and such time period has not expired.
11.0. Rights and Remedies.
() Acceleration and Termination. Upon the occurrence of any
Event of Default described in Sections 11.01(f) or 11.01(g) other than with
respect to a Subsidiary that is a Non-Guarantor Domestic Subsidiary or an
Foreign Subsidiary, the Revolving Credit Commitments shall automatically and
immediately terminate and the unpaid principal amount of, and any and all
accrued interest on, the Obligations and all accrued fees shall automatically
become immediately due and payable, without presentment, demand, or protest or
other requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by the
Borrowers; and upon the occurrence and during the continuance of any other
Event of Default (including, without limitation, an Event of Default described
in Sections 11.01(f) or 11.01(g) with respect to a Subsidiary that is a
Non-Guarantor Domestic Subsidiary or an Foreign Subsidiary), the
Administrative Agent shall at the request, or may with the consent, of the
Requisite Lenders, by written notice to the Company, (i) declare that all or
any portion of the Revolving Credit Commitments are terminated, whereupon the
Revolving Credit Commitments and the obligation of each Lender to make any
Loan hereunder and of each Lender or Issuing Bank to issue or participate in
any Letter of Credit not then issued shall immediately terminate, and/or
(ii) declare the unpaid principal amount of and any and all accrued and unpaid
interest on the Obligations to be, and the same shall thereupon be,
immediately due and payable, without presentment, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by the
Borrowers.
() Deposit for Letters of Credit. In addition, after the
occurrence and during the continuance of an Event of Default, the Borrowers
shall, promptly upon demand by the Administrative Agent (given upon the
written instructions of the Requisite Lenders or, in the absence of such
instructions, in its sole discretion), deliver to the Administrative Agent,
Cash Collateral in such form and currency as requested by the Administrative
Agent, together with such endorsements, and execution and delivery of such
documents and instruments as the Administrative Agent may request in order to
perfect or protect the Administrative Agent's Lien with respect thereto, in an
aggregate principal amount equal to the then outstanding Letter of Credit
Obligations.
() Rescission. If at any time after termination of the
Revolving Credit Commitments and/or acceleration of the maturity of the Loans,
the Borrowers shall pay all arrears of interest and all payments on account of
principal of the Loans and Reimbursement Obligations which shall have become
due otherwise than by acceleration (with interest on principal and, to the
extent permitted by law, on overdue interest, at the rates specified herein)
and all Events of Default and Defaults (other than nonpayment of principal of
and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 13.07, then upon
the written consent of the Requisite Lenders and written notice to the
Company, the termination of the Revolving Credit Commitments and/or the
acceleration and the consequences of such termination and/or acceleration may
be rescinded and annulled; but such action shall not affect any subsequent
Event of Default or Default or impair any right or remedy consequent thereon.
The provisions of the preceding sentence are intended merely to bind the
Lenders and the Issuing Banks to a decision which may be made at the election
of the Requisite Lenders; they are not intended to benefit the Borrowers and
do not give the Borrowers the right to require the Lenders to rescind or annul
any acceleration hereunder, even if the conditions set forth herein are met.
() Enforcement. Each of the Borrowers acknowledges that in the
event such Borrower or any of its Subsidiaries fails to perform, observe or
discharge any of its respective obligations or liabilities hereunder or under
any other Loan Document, any remedy of law may prove to be inadequate relief
to the Administrative Agent, the CoAgents, the Issuing Banks and the Lenders;
therefore, such Borrower agrees that the Administrative Agent, the CoAgents,
the Issuing Banks and the Lenders shall be entitled after the occurrence and
during the continuance of an Event of Default to seek temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
ARTICLE
THE AGENTS
12.0. Appointment. () Each Lender and each Issuing Bank
hereby designates and appoints (i) First Chicago as the Administrative Agent,
(ii) DLJ as the Syndication Agent and (iii) ABN AMRO as the Documentation
Agent, and each Lender and each Issuing Bank hereby irrevocably authorizes the
Administrative Agent to execute such documents (including, without limitation,
the Loan Documents to which the Administrative Agent is a party) and
irrevocably authorizes the Agents to take such other action on such Person's
behalf under the provisions hereof and of the Loan Documents and to exercise
such powers as are set forth herein or therein together with such other powers
as are reasonably incidental thereto. As to any matters not expressly
provided for hereby (including, without limitation, enforcement or collection
of the Notes or any amount payable under any provision of Article III when
due) or the other Loan Documents, none of the Agents shall be required to
exercise any discretion or take any action. Notwithstanding the foregoing,
the Administrative Agent shall be required to act or refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders (unless the instructions or consent of
all of the Lenders is required hereunder or thereunder) and such instructions
shall be binding upon all Lenders, Issuing Banks and Holders; provided,
however, the Administrative Agent shall not be required to take any action
which (i) the Administrative Agent reasonably believes shall expose it to
personal liability unless the Administrative Agent receives an indemnification
satisfactory to it from the Lenders with respect to such action or (ii) is
contrary hereto, to the other Loan Documents or applicable law. The Agents
agree to act as such on the express conditions contained in this Article XII.
() The provisions of this Article XII are solely for the
benefit of the Agents, the Lenders and Issuing Banks, and none of the
Borrowers or any Subsidiary of the Company shall have any rights to rely on or
enforce any of the provisions hereof (other than as expressly set forth in
Sections 12.07 and 12.09). In performing their respective functions and duties
hereunder, each of the Agents shall act solely as agent of the Lenders and the
Issuing Banks and does not assume and shall not be deemed to have assumed any
obligation or relationship of agency, trustee or fiduciary with or for the
Borrowers or any Subsidiary of the Company. The Agents may perform any of
their respective duties hereunder, or under the Loan Documents, by or through
its agents or employees.
12.0. Nature of Duties. None of the Agents shall have any
duties or responsibilities except those expressly set forth herein or in the
Loan Documents. The duties of the Agents shall be mechanical and
administrative in nature. None of the Agents shall have by reason hereof a
fiduciary relationship in respect of any Holder. Nothing herein or in any of
the Loan Documents, expressed or implied, is intended to or shall be construed
to impose upon any Agent any obligations in respect hereof or any of the Loan
Documents except as expressly set forth herein or therein. Each Lender and
each Issuing Bank shall make its own independent investigation of the
financial condition and affairs of the Borrowers and their Subsidiaries in
connection with the making and the continuance of the Loans hereunder and with
the issuance of the Letters of Credit and shall make its own appraisal of the
creditworthiness of the Borrowers and their Subsidiaries initially and on a
continuing basis, and none of the Agents shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any
Holder with any credit or other information with respect thereto (except for
reports required to be delivered by any Agent under the terms hereof). If any
Agent seeks the consent or approval of any of the Lenders to the taking or
refraining from taking of any action hereunder, such Agent shall send notice
thereof to each Lender. The Administrative Agent shall promptly notify each
Lender at any time that the Lenders so required hereunder have instructed any
Agent to act or refrain from acting pursuant hereto.
12.0. Rights, Exculpation, Etc. () Liabilities;
Responsibilities. None of the Agents or any Affiliate of any of the Agents,
nor any of their respective officers, directors, trustees, employees or agents
shall be liable to any Holder for any action taken or omitted by them
hereunder or under any of the Loan Documents, or in connection therewith,
except that no Person shall be relieved of any liability imposed by law for
gross negligence or willful misconduct. None of the Agents shall be liable
for any apportionment or distribution of payments made by it in good faith
pursuant to Section 3.02(b), and if any such apportionment or distribution is
subsequently determined to have been made in error the sole recourse of any
Holder to whom payment was due, but not made, shall be to recover from other
Holders any payment in excess of the amount to which they are determined to
have been entitled. None of the Agents shall be responsible to any Holder for
any recitals, statements, representations or warranties herein or for the
execution, effectiveness, genuineness, validity, legality, enforceability,
collectibility, or sufficiency hereof or of any of the other Loan Documents or
the transactions contemplated thereby, or for the financial condition of the
Borrowers or any of their Subsidiaries. None of the Agents shall be required
to make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions hereof or of any of the Loan Documents or
the financial condition of the Borrowers or any of their Subsidiaries, or the
existence or possible existence of any Default or Event of Default.
() Right to Request Instructions. Any Agent may at any time
request instructions from the Lenders with respect to any actions or approvals
which by the terms of any of the Loan Documents such Agent is permitted or
required to take or to grant, and such Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from those Lenders from whom such Agent is required
to obtain such instructions for the pertinent matter in accordance with the
Loan Documents. Without limiting the generality of the foregoing, no Holder
shall have any right of action whatsoever against any Agent as a result of
such Agent acting or refraining from acting under the Loan Documents in
accordance with the instructions of the Requisite Lenders or, where required
by the express terms hereof, a greater proportion of the Lenders.
12.0. Reliance. The Agents shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents or any
telephone message believed by it in good faith to be genuine and correct and
to have been signed, sent or made by the proper Person, and with respect to
all matters pertaining hereto or to any of the Loan Documents and its duties
hereunder or thereunder, upon advice of legal counsel (including counsel for
the Borrowers), independent public accountants and other experts selected by
it.
12.0. Indemnification. To the extent that any Agent is not
reimbursed and indemnified by the Borrowers, the Lenders shall reimburse and
indemnify such Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against such Agent in any way relating to or arising
out of the Loan Documents or any action taken or omitted by such Agent under
the Loan Documents, in proportion to each Lender's Pro Rata Share; provided,
however, the Lenders shall have no obligation to such Agent with respect to
the matters indemnified pursuant to this Section resulting from the willful
misconduct or gross negligence of such Agent, as determined in a final,
non-appealable judgment by a court of competent jurisdiction. The obligations
of the Lenders under this Section 12.05 shall survive the payment in full of
the Loans, the Reimbursement Obligations and all other Obligations and the
termination hereof.
12.0. First Chicago, DLJ and ABN AMRO Individually. With
respect to their respective Pro Rata Shares of the Revolving Credit
Commitments hereunder, if any, and the Loans made by each of them, if any,
First Chicago, DLJ and ABN AMRO shall each have and may exercise the same
rights and powers hereunder and are each subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "Lenders" or "Requisite Lenders" or any similar terms shall, unless the
context clearly otherwise indicates, include First Chicago, DLJ and ABN AMRO
in their respective individual capacities as a Lender or as one of the
Requisite Lenders. First Chicago, DLJ, ABN AMRO and their respective
Affiliates may accept deposits from, lend money to, and generally engage in
any kind of banking, trust or other business with the Borrowers or any of
their Subsidiaries as if First Chicago were not acting as Administrative Agent
pursuant hereto or DLJ or ABN AMRO were not acting as CoAgent pursuant hereto.
12.0. Successor Administrative Agent; Resignation of
Administrative Agent and CoAgents. () Resignation. Any of the CoAgents or
the Administrative Agent may resign from the performance of its respective
functions and duties hereunder at any time by giving at least thirty (30)
Business Days' prior written notice to the Company and the Lenders. The
resignation of such CoAgent shall take effect upon the expiration of such
thirty-day period. The resignation of the Administrative Agent shall take
effect upon the acceptance by a successor Administrative Agent of appointment
pursuant to this Section 12.07.
() Appointment by Requisite Lenders. Upon any such notice of
resignation by the Administrative Agent, the Requisite Lenders shall have the
right to appoint a successor Administrative Agent selected from among the
Lenders which appointment shall be subject to the prior written approval of
the Company (which may not be unreasonably withheld, and shall not be required
upon the occurrence and during the continuance of an Event of Default). Upon
any such notice of resignation by either CoAgent, no successor CoAgent shall
be appointed.
() Appointment by Retiring Administrative Agent. If a successor
Administrative Agent shall not have been appointed within the thirty (30)
Business Day period provided in paragraph (a) of this Section 12.07, the
retiring Administrative Agent, with the consent of the Company (which may not
be unreasonably withheld, and shall not be required upon the occurrence and
during the continuance of an Event of Default), shall then appoint a successor
Administrative Agent who shall serve as Administrative Agent until such time,
if any, as the Requisite Lenders appoint a successor Administrative Agent as
provided above. In connection with the resignation of the Existing
Administrative Agent, the Lenders and Issuing Banks hereby authorize the
Administrative Agent to execute such resignation and assignment documentation
on their behalf in order to effect the appointment of First Chicago as
Administrative Agent and to assign to the Administrative Agent all of the
Existing Collateral Agent's rights, title and interest under all of the Loan
Documents.
() Rights of the Successor and Retiring Administrative Agents.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder thereafter to be performed. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article XII shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was the Administrative Agent hereunder.
12.0. Relations Among Lenders. Each Lender and each Issuing
Bank agrees that it shall not take any legal action, nor institute any actions
or proceedings, against the Borrowers or any other obligor hereunder or with
respect to any Collateral without the prior written consent of the Requisite
Lenders. Without limiting the generality of the foregoing, no Lender may
accelerate or otherwise enforce its portion of the Obligations, or terminate
its Revolving Credit Commitments except in accordance with Section 11.02(a) or
a setoff permitted under Section 13.05.
12.0. Concerning the Collateral and the Loan Documents.
() Protective Advances. The Administrative Agent may from time to time,
after the occurrence and during the continuance of an Event of Default, make
such disbursements and advances in Dollars pursuant to the Loan Documents
which the Administrative Agent, in its sole discretion, deems necessary or
desirable to preserve or protect the Collateral or any portion thereof or to
enhance the likelihood or maximize the amount of repayment of the Loans and
other Obligations up to an amount not in excess of the lesser of the Revolving
Credit Availability at such time and $5,000,000 ("Protective Advances"). The
Administrative Agent shall notify the Company and each Lender in writing of
each such Protective Advance, which notice shall include a description of the
purpose of such Protective Advance. The Company agrees to pay the
Administrative Agent, upon demand, the principal amount of all outstanding
Protective Advances, together with interest thereon at the Base Rate
applicable to the Loans from the date of such Protective Advance until the
outstanding principal balance thereof is paid in full. If the Company fails to
make payment in respect of any Protective Advance within one (1) Business Day
after the date the Company receives written demand therefor from the
Administrative Agent, the Administrative Agent shall promptly notify each
Lender and each Lender agrees that it shall thereupon make available to the
Administrative Agent, in Dollars in immediately available funds, the amount
equal to such Lender's Pro Rata Share of such Protective Advance. If such
funds are not made available to the Administrative Agent by such Lender within
one (1) Business Day after the Administrative Agent's demand therefor, the
Administrative Agent shall be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds Rate for each day
during the period commencing on the date of such demand and ending on the date
such amount is received. The failure of any Lender to make available to the
Administrative Agent its Pro Rata Share of any such Protective Advance shall
neither relieve any other Lender of its obligation hereunder to make available
to the Agent such other Lender's Pro Rata Share of such Protective Advance on
the date such payment is to be made nor increase the obligation of any other
Lender to make such payment to the Administrative Agent. All outstanding
principal of, and interest on, Protective Advances shall constitute Obligations
secured by the Collateral until paid in full by the Company.
() Authority. Each Lender and each Issuing Bank authorizes and
directs the Administrative Agent to enter into the Loan Documents relating to
the Collateral for the benefit of the Lenders and the Issuing Banks. Each
Lender and each Issuing Bank agrees that any action taken by the
Administrative Agent or the Requisite Lenders (or, where required by the
express terms hereof, a different proportion of the Lenders) in accordance
with the provisions hereof or of the other Loan Documents, and the exercise by
the Administrative Agent or the Requisite Lenders (or, where so required, such
different proportion) of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders and Issuing Banks. Without limiting the
generality of the foregoing, the Administrative Agent shall have the sole and
exclusive right and authority to (i) act as the disbursing and collecting
agent for the Lenders and the Issuing Banks with respect to all payments and
collections arising in connection herewith and with the Loan Documents
relating to the Collateral; (ii) execute and deliver each Loan Document
relating to the Collateral and accept delivery of each such agreement
delivered by the Borrowers or any of their Subsidiaries; (iii) act as
collateral agent for the Lenders and the Issuing Banks for purposes of the
perfection of all security interests and Liens created by such agreements and
all other purposes stated therein, provided, however, the Administrative Agent
hereby appoints, authorizes and directs each Lender and each Issuing Bank to
act as collateral sub-agent for the Administrative Agent, the CoAgents, the
Lenders and the Issuing Banks for purposes of the perfection of all security
interests and Liens with respect to the Company's and its Subsidiaries'
respective deposit accounts maintained with, and cash and Cash Equivalents
held by, such Lender or such Issuing Bank; (iv) manage, supervise and
otherwise deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests
and liens created or purported to be created by the Loan Documents; and (vi)
except as may be otherwise specifically restricted by the terms hereof or of
any other Loan Document, exercise all remedies given to the Administrative
Agent, the CoAgents, the Lenders or the Issuing Banks with respect to the
Collateral under the Loan Documents relating thereto, applicable law or
otherwise.
() Release of Collateral. () Each of the CoAgents, the
Lenders, the Issuing Banks and the Holders hereby directs the Administrative
Agent to release any Lien held by the Administrative Agent for the benefit of
the Administrative Agent, the CoAgents, the Lenders, the Issuing Banks and the
other Holders:
(A) against all of the Collateral, upon final payment in full
of the Obligations and termination hereof;
(B) against any part of the Collateral sold or disposed of by
the Borrowers or any of their Subsidiaries, if such sale or
disposition is permitted by Section 9.02 (or permitted pursuant to a
waiver or consent of a transaction otherwise prohibited by such
Section) or, if not pursuant to such sale or disposition, against any
other substantial part of the Collateral if such release is consented
to by Lenders whose Pro Rata Shares, in the aggregate, are equal to
100%;
(C) against any of the Real Property listed on Schedule 9.02 at
the request of the Company at any time on or after the Effective Date;
and
(D) against any Collateral securing any promissory note pledged
to the Administrative Agent evidencing Indebtedness owing from any
Domestic Subsidiary to the Company or any other Domestic Subsidiary.
() Each of the Lenders and the Issuing Banks hereby directs the
Administrative Agent to execute and deliver or file such termination and
partial release statements and do such other things as are necessary to
release Liens to be released pursuant to this Section 12.09(c) promptly upon
the effectiveness of any such release.
() Confirmation by Lenders. Without in any manner limiting the
Administrative Agent's authority to act without any specific or further
authorization or consent by the Lenders (as set forth in subsection (c)
above), each Lender agrees to confirm in writing, upon request by the Company,
the authority to release Collateral conferred upon the Administrative Agent
under clauses (A) and (B) of subsection (c) above. So long as no Event of
Default is then continuing, upon receipt by the Administrative Agent of any
such written confirmation from the Lenders of the Administrative Agent's
authority to release any particular items or types of Collateral, and in any
event upon any sale and transfer of Collateral which is expressly permitted
pursuant to the terms of this Agreement, and upon at least five (5) Business
Days' prior written request by the Company, the Administrative Agent shall
(and is hereby irrevocably authorized by the Lenders to) execute such
documents as may be necessary to evidence the release of the Liens upon such
Collateral granted to the Administrative Agent for the benefit of
Administrative Agent, the CoAgents, the Lenders, the Issuing Banks and the
other Holders; provided, however, that (i) the Administrative Agent shall not
be required to execute any such document on terms which, in the Administrative
Agent's opinion, would expose the Administrative Agent to liability or create
any obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Obligations or any Liens upon (or obligations
of the Borrowers or any of their Subsidiaries in respect of) all interests
retained by the Borrowers and/or any of their Subsidiaries, including (without
limitation) the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
() No Obligation. The Administrative Agent shall not have any
obligation whatsoever to any Lender or to any other Person to assure that the
Collateral exists or is owned by the Borrowers or any of their Subsidiaries or
is cared for, protected or insured or has been encumbered or that the Liens
granted to the Administrative Agent herein or pursuant to the Loan Documents
have been properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise at all or
in any particular manner or under any duty of care, disclosure or fidelity, or
to continue exercising, any of the rights, authorities and powers granted or
available to the Administrative Agent in this Section 12.09 or in any of the
Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Administrative
Agent may act in any manner it may deem appropriate, in its sole discretion,
given the Administrative Agent's own interests in the Collateral as one of the
Lenders and that the Administrative Agent shall not have any duty or liability
whatsoever to any Lender.
() Collateral Matters Relating to Related Obligations. The
benefit of the Loan Documents and of the provisions of this Agreement relating
to the Collateral shall extend to and be available in respect of any
Obligations ("Related Obligations") which arise under any Interest Rate
Contracts or which are otherwise owed to Persons other than the Administrative
Agent, the CoAgents, the Lenders and the Issuing Banks, solely on the
condition and understanding, as among the Administrative Agent and all
Holders, that (i) the Related Obligations shall be entitled to the benefit of
the Collateral to the extent expressly set forth in this Agreement and the
Loan Documents, and to such extent the Administrative Agent shall hold, and
have the right and power to act with respect to, the Collateral on behalf of
and as agent for the Holders of the Related Obligations; but the
Administrative Agent is otherwise acting solely as agent for the Lenders and
the Issuing Banks and shall have no fiduciary duty, duty of loyalty, duty of
care, duty of disclosure or other obligations whatsoever to any Holder of
Related Obligations; and (ii) all matters, acts and omissions relating in any
manner to the Collateral, or the omission, creation, perfection, priority,
abandonment or release of any Lien, shall be governed solely by the provisions
of this Agreement and the Loan Documents and no separate Lien, right, power or
remedy shall arise or exist in favor of any Holder under any separate
instrument or agreement or in respect of any Related Obligations; and
(iii) each Holder shall be bound by all actions taken or omitted, in
accordance with the provisions of this Agreement and the Loan Documents, by
the Administrative Agent and the Requisite Lenders, each of whom shall be
entitled to act at its sole discretion and exclusively in its own interest
given its own Revolving Credit Commitments and its own interest in the Loans,
Letter of Credit Obligations and other Obligations to it arising under this
Agreement or the other Loan Documents, without any duty or liability to any
other Holder or as to any Related Obligations and without regard to whether
any Related Obligations remain outstanding or are deprived of the benefit of
the Collateral or become unsecured or are otherwise affected or put in
jeopardy thereby; and (iv) no holder of Related Obligations and no other
Holder (except the Administrative Agent, the CoAgents and the Lenders, to the
extent set forth in this Agreement) shall have any right to be notified of, or
to direct, require or be heard with respect to, any action taken or omitted in
respect of the Collateral or under this Agreement or the Loan Documents; and
(v) no holder of any Related Obligations shall exercise any right of setoff,
banker's lien or similar right except as expressly provided in Section 13.05.
ARTICLE
MISCELLANEOUS
13.0. Assignments. () Assignments. No assignments or
participations of any Lender's rights or obligations hereunder shall be made
except in accordance with this Section 13.01. Subject to compliance with all
Requirements of Law, each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations hereunder (including all of its
rights and obligations with respect to the Term Loans, the Revolving Loans and
the Letters of Credit) in accordance with the provisions of this Section 13.01.
() Limitations on Assignments. Each assignment by a Lender
shall be subject to the following conditions: (i) each assignment (other than
to a Lender or an Affiliate of any Lender) shall be approved by the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Company, which approval shall not be unreasonably withheld or
delayed; provided, however, that the Syndication Agent shall have the right to
make an assignment hereunder without the approval of the Borrowers; (ii) each
such assignment shall be to an Eligible Assignee; (iii) each such assignment
shall be in an amount at least equal to $5,000,000, in the case of Revolving
Loans and Revolving Credit Commitments, and $1,000,000, in the case of Term
Loans, except if the Eligible Assignee is a Lender or an Affiliate of any
Lender or if such assignment shall constitute all the assigning Lender's
interest hereunder; (iv) if any such assignment shall be of the assigning
Lender's Revolving Loans and Revolving Credit Commitments, such assignment
(other than any such assignment to an Affiliate of the Assigning Lender) shall
consist of the simultaneous assignment of corresponding pro rata portions of
the assigning Lender's Revolving Credit Commitment and Revolving Loans, and
(v) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance. Upon such execution, delivery, acceptance and
recording in the Register, from and after the effective date specified in each
Assignment and Acceptance and agreed to by the Administrative Agent, (x) the
assignee thereunder shall, in addition to any rights and obligations hereunder
held by it immediately prior to such effective date, if any, have the rights
and obligations hereunder that have been assigned to it pursuant to such
Assignment and Acceptance and shall, to the fullest extent permitted by law,
have the same rights and benefits hereunder as if it were an original Lender
hereunder and (y) the assigning Lender shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations
hereunder and, in the case of an Assignment and Acceptance covering all or the
remaining portion of such assigning Lender's rights and obligations hereunder,
the assigning Lender shall cease to be a party hereto, except in each case,
to the extent provided in Section 13.09.
() The Register. The Administrative Agent shall maintain at
its address referred to in Section 13.08 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Revolving
Credit Commitment under each Loan of, and principal amount of the Loans under
each facility owing to, each Lender from time to time and whether such Lender
is an original Lender or the assignee of another Lender pursuant to an
Assignment and Acceptance. The Register shall include a control account, and
a subsidiary account for each Lender, in which accounts (taken together) shall
be recorded (i) the date and amount of each Borrowing made hereunder, (ii) the
effective date and amount of each Assignment and Acceptance delivered to and
accepted by it and the parties thereto, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to
each Lender hereunder or under the Notes, and (iv) the amount of any sum
received by the Administrative Agent from the Borrowers or any Subsidiary
Guarantor hereunder and each Lender's share thereof. The Administrative Agent
shall deliver a statement of such account to the Company whenever an
Assignment and Acceptance is accepted by it and the parties hereto; provided,
however, the Administrative Agent shall not be obligated to deliver such
statement more frequently than once a month. Each such statement shall be
deemed final, binding and conclusive upon the Borrowers in all respects as to
all matters reflected therein (absent manifest error) unless the Company,
within thirty (30) days after the date such statement is delivered to the
Company, delivers to the Administrative Agent written notice of any objections
which the Company may have to any such statement. In that event, only those
items expressly objected to in such notice shall be deemed to be disputed by
the Company. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Company and each of its
Subsidiaries, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
hereof. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
Notwithstanding anything to the contrary contained in the
previous paragraph of this Section 13.01(c), the Loans (including the Notes
evidencing such Loans) are registered obligations and the right, title, and
interest of the Lenders and their assignees in and to such Loans shall be
transferrable only upon notation of such transfer in the Register. A Note
shall only evidence the Lender's or an assignee's right, title and interest in
and to the related Loan, and in no event is any such Note to be considered a
bearer instrument or obligation. This Section 13.01(c) shall be construed so
that the Loans are at all times maintained in "registered form" within the
meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue
Code and any related regulations (or any successor provisions of the Internal
Revenue Code or such regulations). Solely for purposes of this Section
13.01(e) and for tax purposes only, the Administrative Agent shall act as the
Company's agent for purposes of maintaining such notations of transfer in the
Register. No transfer by a Lender or an assignee of any of the Loans shall be
permitted or effective unless and until recorded in the Register. The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers and each of their Subsidiaries, the Agents,
and the Lenders may treat each Person whose name is recorded in the Register
as a Lender hereunder for all purposes hereof. The Register shall be
available for inspection by the Borrowers or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
() Fee. Upon its receipt of an Assignment and Acceptance
executed by the assigning Lender and an Eligible Assignee and a processing and
recordation fee of $3,500 (payable by the assigning Lender or the assignee, as
shall be agreed between them), the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in compliance herewith and
in substantially the form of Exhibit A hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company and the other Lenders.
() Information Regarding the Borrowers. Any Lender may, in
connection with any assignment or proposed assignment pursuant to this Section
13.01, disclose to the assignee or proposed assignee any information relating
to the Borrowers or their Subsidiaries furnished to such Lender by the
Administrative Agent or by or on behalf of the Borrowers; provided that, prior
to any such disclosure, such assignee or proposed assignee shall agree (for
the Borrowers' benefit) to preserve in accordance with Section 13.20 the
confidentiality of any information described therein.
() Lenders' Creation of Security Interests. Notwithstanding
any other provision set forth herein, (i) any Lender may at any time create a
security interest in all or any portion of its rights hereunder (including,
without limitation, Obligations owing to it and Notes held by it) in favor of
any Federal Reserve bank in accordance with Regulation A; and (ii) any Lender
shall be permitted to pledge all or any part of its right, title and interest
in, to and under the Loans and Notes held by it to any trustee for the benefit
of the holders of such trust's securities.
() Assignments by an Issuing Bank. If any Issuing Bank ceases
to be a Lender hereunder by virtue of any assignment made pursuant to this
Section 13.01, then, as of the effective date of such cessation, such Issuing
Bank's obligations to issue Letters of Credit pursuant to Section 2.04 shall
terminate and such Issuing Bank shall be an Issuing Bank hereunder only with
respect to outstanding Letters of Credit issued prior to such date.
() Participations. Subject to compliance with all Requirements
of Law, each Lender may sell participations to one or more other financial
institutions in or to all or a portion of its rights and obligations under and
in respect of any and all facilities hereunder (including, without limitation,
all or a portion of any or all of its Revolving Credit Commitments hereunder
and the Loans owing to it and its undivided interest in the Letters of
Credit); provided, however, that (i) such Lender's obligations hereunder
(including, without limitation, its Revolving Credit Commitments hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) the
Borrowers, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations hereunder and (iv) such participant's rights to agree
or to restrict such Lender's ability to agree to the modification, waiver or
release of any of the terms of the Loan Documents or to the release of any
Collateral covered by the Loan Documents, to consent to any action or failure
to act by any party to any of the Loan Documents or any of their respective
Subsidiaries or Affiliates, or to exercise or refrain from exercising any
powers or rights which any Lender may have under or in respect of the Loan
Documents or any Collateral, shall be limited to the right to consent to (A)
reduction of the principal of, or rate or amount of interest on the Loans(s)
subject to such participation (other than by the payment or prepayment thereof
and excluding any waiver of default interest pursuant to Section 4.01(d)), (B)
postponement of any scheduled date for any payment of principal of, or
interest on, the Loan(s) subject to such participation (except with respect to
any modifications of the application provisions relating to the prepayments of
Loans and other Obligations and any rescission of acceleration pursuant to
Section 11.02(c)) and (C) release of any Guarantor or all or any portion of
the Collateral, except as provided in Section 12.09(c) or in connection with
the sale of all or substantially all of the Capital Stock or Property of any
Subsidiary Guarantor or a merger of a Subsidiary Guarantor into another
Subsidiary Guarantor or into the Company, in each case approved by the
Requisite Lenders. No holder of a participation in all or any part of the
Loans shall be a "Lender" or a "Holder" for any purposes hereunder by reason
of such participation; provided, however, that each holder of a participation
shall have the rights and obligations of a Lender (including any right to
receive payment) under Sections 3.03, 3.04, 4.01(f), 4.02(f), 12.05 and 13.02;
provided, however, that all requests for any such payments shall be made by a
participant through the Lender granting such participation. The right of each
holder of a participation to receive payment under Sections 3.03, 3.04,
4.01(f), 4.02(f) and 13.02 shall be limited to the lesser of (i) the amounts
actually incurred by such holder for which payment is provided under said
Sections and (ii) the amounts that would have been payable under said Sections
by the applicable Borrower to the Lender granting the participation in respect
of the participated interest to such holder had such participation not been
granted.
() Payment to Participants. Anything herein to the contrary
notwithstanding, in the case of any participation, all amounts payable by the
Borrowers under the Loan Documents shall be calculated and made in the manner
and to the parties required hereby as if no such participation had been sold.
() No Registration. Notwithstanding any other provisions of
this Section 13.01, no transfer or assignment of interests or obligations of
any Lender hereunder or any grant of participations therein shall be permitted
if such transfer, assignment or grant would require the Company or any
Subsidiary Guarantor to file a registration statement under the Securities Act
with the Securities and Exchange Commission or to qualify the Loans or the
Notes under the state securities or "Blue Sky" laws of any state. The
approval of any proposed assignee by the Company required by this Agreement
shall not be deemed to be unreasonably withheld if the approval of such Person
would require any Loan or Note to be registered or qualified under any
applicable securities law.
() Investment Representation. Each Lender party to this
Agreement on the Effective Date hereby represents, and each Person that
becomes a Lender pursuant to an assignment permitted by this Section 13.01
will represent, and shall be deemed to have represented, upon becoming a party
to this Agreement, to the Borrowers and each Subsidiary Guarantor and the
other parties to this Agreement that it is a commercial lender, other financial
institution regularly engaged in making commercial loans or an "accredited
investor" or "qualified institutional investor" (as defined in Regulation D
and Rule 144A, respectively, of the Securities Act) and that it will make or
acquire Loans hereunder for its own account in the ordinary course of its
business.
() Notes Not Securities. Notwithstanding the foregoing
provisions of this Section 13.01, no provision of this Agreement shall be
construed to mean or imply that any Loan, any Note, the Revolving Credit
Commitments or any assignment thereof or grant of a participation therein is a
"security" under any applicable securities law.
13.0. Expenses.
() Generally. The Company agrees upon demand to pay, or
reimburse the Syndication Agent and the Administrative Agent for, all of the
Syndication Agent's and the Administrative Agent's reasonable internal and
external audit, legal, appraisal, valuation, filing, document duplication and
reproduction and investigation expenses and for all other out-of-pocket costs
and expenses of every type and nature (including, without limitation, the
reasonable fees, expenses and disbursements of counsel to each of the
Syndication Agent and the Administrative Agent, local legal counsel, auditors,
accountants, appraisers, printers, insurance and environmental advisers, and
other consultants and agents retained by the Syndication Agent and the
Administrative Agent, it being understood that the Syndication Agent and the
Administrative Agent will discuss with the Company the proposed use of a
consultant or agent prior to seeking reimbursement for such consultant's
expense) incurred by either the Syndication Agent or the Administrative Agent
in connection with (A) the Syndication Agent's and the Administrative Agent's
audit and investigation of the Company and the Company's Subsidiaries in
connection with the preparation, negotiation, and execution of the Loan
Documents and the Syndication Agent's and the Administrative Agent's periodic
audits of the Company or the Company's Subsidiaries; (B) the preparation,
negotiation, execution and interpretation hereof (including, without
limitation, the satisfaction or attempted satisfaction of any of the conditions
set forth in Article V or in any amendment to this Agreement), the other Loan
Documents and any proposal letter or commitment letter issued in connection
therewith and the making of the Loans hereunder; (C) the creation, perfection
or protection of the Liens under the Loan Documents (including, without
limitation, any reasonable fees and expenses for local counsel in various
jurisdictions); (D) the ongoing administration hereof and of the Loans,
including consultation with attorneys in connection therewith and with respect
to the Syndication Agent's and Administrative Agent's rights and
responsibilities hereunder and under the other Loan Documents; (E) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (F) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations,
the Property of Holdco, the Borrowers or any of the Domestic Subsidiaries, the
Borrowers, Holdco, any of the Company's Subsidiaries, this Agreement or any of
the other Loan Documents; (G) the response to, and preparation for, any
subpoena or request for document production with which the Syndication or the
Administrative Agent is served or deposition or other proceeding in which the
Syndication Agent or the Administrative Agent is called to testify, in each
case, relating in any way to the Obligations, the Property of Holdco, the
Borrowers or any of the Domestic Subsidiaries, the Borrowers, Holdco, any of
the Company's Subsidiaries, this Agreement or any of the other Loan Documents;
and (H) any amendments, consents, waivers, assignments, restatements, or
supplements to any of the Loan Documents and the preparation, negotiation, and
execution of the same.
() After Default. The Company further agrees to pay or
reimburse the Administrative Agent, the CoAgents, the Issuing Banks and the
Lenders upon demand for all out-of-pocket costs and expenses, including,
without limitation, reasonable attorneys' fees (including allocated costs of
internal counsel and costs of settlement), incurred by the Administrative
Agent, the CoAgents, any Issuing Bank or any Lender after the occurrence of an
Event of Default (i) in enforcing any Loan Document or Obligation or any
security therefor or exercising or enforcing any other right or remedy
available by reason of any Event of Default; (ii) in connection with any
refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a "work-out" or in any insolvency or bankruptcy proceeding;
(iii) in commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal proceeding
relating to the Obligations, the Property, the Borrowers or any of the
Company's Subsidiaries and related to or arising out of the transactions
contemplated hereby or by any of the other Loan Documents; and (iv) in taking
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) described in clauses (i) through (iii) above.
13.0. Indemnities. () Each Borrower agrees to indemnify and
hold harmless the Administrative Agent, each CoAgent, each Lender and each
Issuing Bank and their respective Affiliates (but excluding any Lender or
Affiliate of a Lender solely in such Lender's or Affiliate's capacity as an
underwriter of the Subordinated Notes), and the directors, trustees, officers,
employees, agents, partners, attorneys, consultants and advisors of or to any
of the foregoing (including, without limitation, those retained in connection
with the satisfaction or attempted satisfaction of any of the conditions set
forth in Article III) (each of the foregoing being and "Indemnitee") from and
against any and all claims, damages, liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, disbursements and expenses of any
kind or nature (including, without limitation, reasonable fees and
disbursements of counsel to any such Indemnitee) which may be imposed on,
incurred by or asserted against any such Indemnitee in connection with or
arising out of any claim, investigation, litigation or proceeding, whether or
not any such Indemnitee is a party thereto, whether direct, indirect, or
consequential and whether based on any federal, state or local law or other
statutory regulation, securities or commercial law or regulation, or under
common law or in equity, or on contract, tort or otherwise, in any manner
relating to or arising out of this Agreement, the Existing Credit Agreement
(or any predecessor thereof), the Loan Documents, any Obligation, any Letter
of Credit, the issuance of the Subordinated Notes or any act, event or
transaction related or attendant to any thereof, including, without
limitation, (i) all Liabilities and Costs arising from or connected with the
past, present or future operations of such Borrower or any or its Subsidiaries
involving any Property subject to a Loan Document, or damage to real or
personal Property or natural resources or harm or injury alleged to have
resulted from any Release of Contaminants on, upon or into such Property or any
other affected real estate; (ii) any Liabilities or Costs incurred as a result
of any Remedial Action concerning such Borrower or any of its Subsidiaries;
(iii) any Liabilities or Costs incurred as a result of any Environmental Lien;
(iv) any Liabilities or Costs incurred pursuant to Environmental, Health and
Safety Requirements of Law, including, without limitation, CERCLA and
applicable state property transfer laws, whether, with respect to any of the
foregoing, such Indemnitee is a mortgagee pursuant to any leasehold mortgage,
a mortgagee in possession, the successor in interest to such Borrower or any
of its Subsidiaries, or the owner, lessee or operator of any Property of such
Borrower or any of its Subsidiaries by virtue of foreclosure, except, with
respect to any of the foregoing referred to in clauses (i), (ii), (iii) and
(iv), to the extent incurred following (x) foreclosure by the Administrative
Agent, any CoAgent any Lender or any Issuing Bank, or (y) the Administrative
Agent, any CoAgent any Lender or any Issuing Bank having become the successor
in interest to such Borrower or any of its Subsidiaries, attributable with
respect to clauses (x) and (y) solely to acts of the Administrative Agent,
such CoAgent, such Lender or such Issuing Bank or any agent on behalf of the
Administrative Agent, such CoAgent, such Lender or such or such Issuing Bank;
(v) the use or intended use of the proceeds of the Revolving Loans or Letters
of Credit (collectively, "Indemnified Matter"); or (vi) any action taken or
omitted by any Indemnitee in reliance on any notice or other written
communication in the form of a telecopy or facsimile received hereunder by
such Indemnitee; provided that such Borrower shall not have any obligation
under this Section 13.03 to an Indemnitee with respect to any Indemnified
Matter caused by or resulting from the gross negligence or willful misconduct
of that Indemnitee, as determined by a court of competent jurisdiction in a
final non-appealable judgment or order.
() Each Borrower shall indemnify the Administrative Agent, the
CoAgents, the Lenders and the Issuing Banks for, and hold the Administrative
Agent, the CoAgents, the Lenders and the Issuing Banks harmless from and
against, any and all claims for brokerage commissions, fees and other
compensation made against the Administrative Agent, the CoAgents, the Lenders
and the Issuing Banks for any broker, finder or consultant with respect to any
agreement, arrangement or understanding made by or on behalf of such Borrower
or its Subsidiaries in connection with the transactions contemplated by this
Agreement.
() The Administrative Agent, each CoAgent, each Lender and each
Issuing Bank agree that in the event that any such investigation, litigation
or proceeding set forth in subparagraph (a) above is asserted or threatened in
writing or instituted against it or any other Indemnitee, or any Remedial
Action is requested of it or any of its officers, directors, trustees, agents
and employees, for which any Indemnitee may desire indemnity or defense
hereunder, such Indemnitee shall promptly notify the Company in writing.
() Each Borrower, at the request of any Indemnitee, shall have
the obligation to defend against such investigation, litigation or proceeding
or requested Remedial Action, and such Borrower, in any event, may participate
in the defense thereof with legal counsel of the Company's choice. In the
event that such Indemnitee requests such Borrower to defend against such
investigation, litigation or proceeding or requested Remedial Action, such
Borrower shall promptly do so and such Indemnitee shall have the right to have
legal counsel chosen by such Indemnitee participate in such defense. No
action taken by legal counsel chosen by such Indemnitee in defending against
any such investigation, litigation or proceeding or requested Remedial Action
shall vitiate or in any way impair such Borrower's obligation and duty
hereunder to indemnify and hold harmless such Indemnitee.
() Each Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including,
without limitation, pursuant to this Section 13.03) or any other Loan Document
shall also inure to the benefit of any Person who was at any time an
Indemnitee under this Agreement or any other Loan Document.
13.0. Change in Accounting Principles. If any change in the
accounting principles used in the preparation of the most recent financial
statements referred to in Section 7.01 is after the Effective Date required or
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the Company with the agreement of its independent certified
public accountants and such change results in a change in the method of
calculation of any of the covenants, standards or terms found in Article IX
and Article X, the parties hereto agree to enter into negotiations in order to
amend such provisions so as to equitably reflect such change with the desired
result that the criteria for evaluating compliance with such covenants,
standards and terms by the Company shall be the same after such change as if
such change had not been made; provided, however, no change in accounting
principles that would affect the method of calculation of any of the covenants,
standards or terms shall be given effect in such calculations until such
provisions are amended, in a manner satisfactory to the Requisite Lenders and
the Company, to so reflect such change in accounting principles and all
references to GAAP in the defined terms used in Article IX and Article X shall
refer to GAAP as in effect on the Effective Date or, if such provisions are
amended, on the date such provisions are amended.
13.0. Setoff. In addition to any Liens granted under the Loan
Documents and any rights now or hereafter granted under applicable law, upon
the occurrence and during the continuance of any Event of Default, and with
the prior written consent of the Requisite Lenders, each Lender, each Issuing
Bank and any Affiliate of any Lender or Issuing Bank is hereby authorized by
the Company at any time or from time to time, without notice to any Person (any
such notice being hereby expressly waived) to set off and to appropriate and
to apply any and all deposits (general or, to the extent permitted by law,
special, including, but not limited to, indebtedness evidenced by certificates
of deposit, whether matured or unmatured (but not including trust accounts))
and any other Indebtedness at any time held or owing by such Lender, Issuing
Bank or any of their Affiliates to or for the credit or the account of any
Borrower against and on account of the Obligations of such Borrower to such
Lender, Issuing Bank or any of their Affiliates, including, but not limited
to, all Loans and Letters of Credit and all claims of any nature or
description arising out of or in connection herewith, irrespective of whether
or not (i) such Lender or Issuing Bank shall have made any demand hereunder or
(ii) the Administrative Agent, at the request or with the consent of the
Requisite Lenders, shall have declared the principal of and interest on the
Loans and other amounts due hereunder to be due and payable as permitted by
Article XI and even though such Obligations may be contingent or unmatured.
13.0. Ratable Sharing. The Lenders and the Issuing Banks
agree among themselves that, except as otherwise expressly provided in any
Loan Document, (i) with respect to all amounts received by them which are
applicable to the payment of the Obligations (excluding (x) the fees described
in Sections 2.04(g), 3.03, 3.04, 4.01(f) and 4.02 and (y) any amounts to
received in respect of Currency Agreements and/or Interest Rate Contracts)
equitable adjustment shall be made so that, in effect, all such amounts shall
be shared among them ratably in accordance with their Pro Rata Shares, whether
received by voluntary payment, by the exercise of the right of setoff or
banker's lien, by counterclaim or cross-action or by the enforcement of any or
all of such Obligations (excluding the payments described in Sections 2.04(g),
3.03, 3.04, 4.01(f) and 4.02) or the Collateral, (ii) if any of them shall by
voluntary payment or by the exercise of any right of counterclaim, setoff,
banker's lien or otherwise, receive payment of a proportion of the aggregate
amount of such Obligations held by it which is greater than the amount which
such Lender is entitled to receive hereunder, the Lender receiving such excess
payment shall purchase, without recourse or warranty, an undivided interest and
participation (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in such Obligations owed to the others so that all
such recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; provided, however, that if all or part
of such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participation shall be returned to such party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such recovery.
Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 13.06 may, to the fullest extent permitted by
law, exercise all its rights of payment (including, subject to Section 13.05,
the right of setoff) with respect to such participation as fully as if such
Lender were the direct creditor of such Borrower in the amount of such
participation.
13.0. Amendments and Waivers. () General Provisions. Unless
otherwise provided herein, no amendment or modification of any provision
hereof shall be effective without the written agreement of the Requisite
Lenders (or such other required number of Lenders as herein provided) and the
Borrowers, and no termination or waiver of any provision hereof, or consent to
any departure by the Borrowers therefrom, shall be effective without the
written concurrence of the Requisite Lenders, which the Requisite Lenders
shall have the right to grant or withhold in their sole discretion.
() Amendments, Consents and Waivers by Affected Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions hereof shall be effective only by a written
agreement, signed by each Term Loan Lender affected thereby, in the case of
clauses (i), (iii) and (iv) below, each Term Loan Lender increasing its Term
Loan Commitment, the Requisite Lenders and Term Loan Lenders holding in the
aggregate more than 66 2/3% of the then aggregate amount of the Term Loans, in
the case of clause (ii) below, and Term Loan Lenders holding in the aggregate
more than 51% of the then aggregate principal amount of the Term Loans, in the
case of clause (v) below, in each case in respect of any of the following in
respect of the Term Loans; and by each Revolving Credit Lender affected
thereby, in the case of clauses (i), (iii) and (iv) below, each Revolving
Credit Lender increasing its Revolving Credit Commitment and the Requisite
Lenders, in the case of clause (ii) below, and Revolving Credit Lenders
holding in the aggregate more than 51% of the then aggregate amount of the
Revolving Credit Commitments in effect at such time, in the case of clause (v)
below, in respect of any of the following in respect of Revolving Loans or
Reimbursement Obligations:
() waiver of any of the conditions with respect to the making
or the extension of the maturities of Term Loans or Revolving Loans
specified in Section 5.01 or 5.02 (except with respect to a condition
based upon another provision hereof, the waiver of which requires only
the concurrence of the Requisite Lenders),
() increase in the amount of the Term Loan Commitment or the
Revolving Credit Commitment of such Lender,
() reduction of the principal of, rate or amount of interest on
the Term Loans, the Revolving Loans or Reimbursement Obligations or
any fees or other amounts payable to such Lender, as the case may be
(excluding amounts so payable pursuant to Sections 3.01(b) and any
waiver of default interest pursuant to Section 4.01(d)),
() extension of the Revolving Credit Termination Date, any
postponement or waiver of any scheduled reduction of the Revolving
Credit Commitments pursuant to Section 3.01(c) or the postponement of
any date on which any scheduled payment of principal of, or interest
on, the Term Loans, the Revolving Loans or Reimbursement Obligations
or any fees or other amounts payable to such Lender (excluding amounts
so payable pursuant to Section 3.01(b)) would otherwise be due, and
() postponement of any date fixed for, reduction of the
amount of or change in order of application of, any mandatory
prepayment or repayment made pursuant to Section 3.01(b).
() Amendments, Consents and Waivers by all Lenders.
Notwithstanding the foregoing but subject to Section 11.02(c), any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions hereof shall be effective only by a written agreement,
signed by the Borrowers and each Lender:
() release of any Guarantor (except in connection with the sale
of all or substantially all of the Capital Stock or Property of any
Subsidiary Guarantor or a merger of a Subsidiary Guarantor into
another Subsidiary Guarantor or into the Company, in each case
approved by the Requisite Lenders or otherwise permitted under Section
9.02 or otherwise permitted hereunder) or all or a substantial portion
of the Collateral (except as provided in Section 12.09(c)),
() change in the aggregate Pro Rata Shares of the Lenders which
shall be required for the Lenders or any of them to take action
hereunder,
() change in the definition of Requisite Lenders, or
() amendment of Sections 12.09(c) or 13.06 or this Section
13.07.
The Administrative Agent may, but shall have no obligation to, with the
written concurrence of any Lender, execute amendments, modifications, waivers
or consents on behalf of that Lender. The Syndication Agent shall coordinate
all amendments, modifications, waivers and consents with the Administrative
Agent and the Borrowers. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given. No
notice to or demand on the Borrowers in any case shall entitle the Borrowers
to any other or further notice or demand in similar or other circumstances.
Notwithstanding anything to the contrary contained in this Section 13.07, no
amendment, modification, waiver or consent shall affect the rights or duties
of any of the Agents hereunder or under the other Loan Documents, including
this Article XIII, unless made in writing and signed by the Agent so affected
in addition to the Lenders required above to take such action.
Notwithstanding anything herein to the contrary, in the event that any
Borrower shall have requested, in writing, that any Lender agree to an
amendment, modification, waiver or consent with respect to any particular
provision or provisions hereof, and such Lender shall have failed to state, in
writing, that it either agrees or disagrees (in full or in part) with all such
requests (it being understood that any such statement of agreement may be
subject to satisfactory documentation and other conditions specified in such
statement) within thirty (30) days of such request, then such Lender hereby
irrevocably authorizes the Administrative Agent to agree or disagree, in full
or in part, and in the Administrative Agent's sole discretion, to such
requests on behalf of such Lender as such Lender's attorney-in-fact and to
execute and deliver any writing approved by the Administrative Agent which
evidences such agreement as such Lender's duly authorized agent for such
purposes.
13.0. Notices. Unless otherwise specifically provided herein,
any notice, consent or other communication herein required or permitted to be
given shall be in writing and may be personally served, telecopied, or sent by
courier service and shall be deemed to have been given when delivered in
person or by courier service, or upon receipt of a telecopy. Notices to the
Administrative Agent pursuant to Articles II or III shall not be effective
until received by the Administrative Agent. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 13.08) shall be as set forth below each party's
name on the signature pages hereof, in the case of the Borrowers, on Schedule
1.01, in the case of the Lenders and Issuing Banks, or the signature page of
any applicable Assignment and Acceptance, or, as to each party, at such other
address as may be designated by such party in a written notice to all of the
other parties hereto.
13.0. Survival of Warranties and Agreements. All
representations and warranties made herein and all obligations of the
Borrowers in respect of taxes, indemnification and expense reimbursement shall
survive the execution and delivery hereof and of the other Loan Documents, the
making and repayment of the Loans, the issuance and discharge of Letters of
Credit hereunder and the termination hereof and shall not be limited in any
way by the passage of time or occurrence of any event and shall expressly
cover time periods when the Administrative Agent, either CoAgent, any of the
Issuing Banks or any of the Lenders may have come into possession or control
of any of the Borrowers' or their Subsidiaries' Property; provided, however,
all representations and warranties made herein or in any other Loan Document
by the Borrowers or any of their Subsidiaries shall terminate when all
Obligations (other than indemnities not then due) have been paid in full and
this Agreement has been terminated.
13.. Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent, either CoAgent
any Lender or any Issuing Bank in the exercise of any power, right or
privilege under any of the Loan Documents shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege. All rights and remedies existing under the Loan Documents
are cumulative to and not exclusive of any rights or remedies otherwise
available.
13.. Marshalling; Payments Set Aside. None of the
Administrative Agent, either CoAgent, any Lender or any Issuing Bank shall be
under any obligation to ▇▇▇▇▇▇▇▇ any Property in favor of the Borrowers or any
other party or against or in payment of any or all of the Obligations. To the
extent that any Borrower makes a payment or payments to the Administrative
Agent, the CoAgents, the Lenders or the Issuing Banks or any of such Persons
receives payment from the proceeds of the Collateral or exercise their rights
of setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
13.. Severability. In case any provision in or obligation
hereunder or under the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired
thereby.
13.. Headings. Section headings herein are included herein
for convenience of reference only and shall not constitute a part hereof or be
given any substantive effect.
13.. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.
13.. Limitation of Liability. No claim may be made by any
Borrower, any of the their Subsidiaries, any Lender, any Issuing Bank, any
CoAgent, the Administrative Agent or any other Person against such Borrower,
any of the their Subsidiaries, the Administrative Agent, any CoAgent, any
other Issuing Bank or any other Lender or the Affiliates, directors, trustees,
officers, employees, attorneys or agents of any of them for any special,
consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated hereby, or any act, omission or event occurring in
connection therewith; and the Borrowers, each of the Borrowers' Subsidiaries,
each Lender, each Issuing Bank, each CoAgent and the Administrative Agent
hereby waives, releases and agrees not to ▇▇▇ upon any such claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
13.. Successors and Assigns. This Agreement and the other
Loan Documents shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of the parties
hereto and the successors and permitted assigns of the Lenders and the Issuing
Banks. The rights hereunder and the interest herein of the Borrowers may not
be assigned without the written consent of all Lenders, except as otherwise
permitted hereunder. Any attempted assignment without such written consent
shall be void.
13.. Certain Consents and Waivers.
() Personal Jurisdiction. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, () EACH OF THE ADMINISTRATIVE AGENT, THE COAGENTS, THE
LENDERS, THE ISSUING BANKS AND THE BORROWERS IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE COURT OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY
COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY
ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT,
WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR IN SUCH FEDERAL
COURT. EACH BORROWER IRREVOCABLY DESIGNATES AND APPOINTS PRENTICE HALL
CORPORATION AT ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS ITS RESPECTIVE
PROCESS AGENT (THE "PROCESS AGENT") FOR SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE ADMINISTRATIVE
AGENT, THE COAGENTS, THE LENDERS, THE ISSUING BANKS AND THE BORROWERS AGREES
THAT A FINAL NONAPPEALABLE JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH OF THE ADMINISTRATIVE AGENT, THE
COAGENTS, THE LENDERS, THE ISSUING BANKS AND THE BORROWERS WAIVES IN ALL
DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE IN ANY SUCH ACTION OR PROCEEDING IN SUCH STATE COURT
OR IN SUCH FEDERAL COURT.
() EACH BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL
HAVE THE RIGHT TO PROCEED AGAINST THE SUBSIDIARY GUARANTORS, THE BORROWERS OR
THEIR RESPECTIVE PROPERTY IN A COURT HAVING JURISDICTION IN ANY LOCATION TO
ENABLE THE ADMINISTRATIVE AGENT, THE COAGENTS, THE ISSUING BANKS AND THE
LENDERS TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE ADMINISTRATIVE AGENT, ANY COAGENT, ANY ISSUING BANK OR ANY LENDER. EACH
BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN
WHICH THE ADMINISTRATIVE AGENT, ANY COAGENT ANY ISSUING BANK OR ANY LENDER MAY
COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
() Service of Process. TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW: EACH BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE PROCESS AGENT OR SUCH BORROWER'S NOTICE ADDRESS SPECIFIED
PURSUANT TO SECTION 13.08, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER
SUCH MAILING. EACH OF THE ADMINISTRATIVE AGENT, COAGENTS, LENDERS, ISSUING
BANKS AND THE BORROWERS IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF THE ADMINISTRATIVE AGENT TO BRING PROCEEDINGS AGAINST THE BORROWERS
IN THE COURTS OF ANY OTHER JURISDICTION.
() Waiver of Jury Trial. EACH OF THE ADMINISTRATIVE AGENT,
COAGENTS, THE ISSUING BANKS, THE LENDERS AND THE BORROWERS IRREVOCABLY WAIVES
TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT.
13.. Counterparts; Effectiveness; Inconsistencies. This
Agreement and any amendments, waivers, consents, or supplements hereto may be
executed in counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one
with the other, but to the extent that the terms and conditions hereof are
actually inconsistent with the terms and conditions of any other Loan
Document, this Agreement shall govern. On the Effective Date, the Existing
Credit Agreement shall be amended and restated in its entirety by this
Agreement and the Existing Credit Agreement shall thereafter be of no further
force and effect; provided that if the Effective Date shall not have occurred
on or prior to November 24, 1998, this Agreement will terminate and will be of
no further force and effect. The terms and conditions of this Agreement and
the Administrative Agent's and the Lenders' rights and remedies under this
Agreement, shall apply to all of the Obligations incurred under the Existing
Credit Agreement. It is expressly understood and agreed by the parties hereto
that this Agreement is in no way intended to constitute a novation of the
obligations and liabilities existing under the Existing Credit Agreement or
evidence payment of all or any of such obligations and liabilities. The
Company reaffirms the Liens granted to the Administrative Agent for the
benefit of the Lenders pursuant to each of the Loan Documents executed by the
Company, which Liens shall continue in full force and effect during the term
of this Agreement and any renewals thereof and shall continue to secure the
Obligations identified in such Loan Documents. All references to the Existing
Credit Agreement in the Loan Documents shall be deemed to refer to this
Agreement. This Agreement and each of the other Loan Documents shall be
construed to the extent reasonable to be consistent one with the other, but to
the extent that the terms and conditions of this Agreement are actually
inconsistent with the terms and conditions of any other Loan Document, this
Agreement shall govern.
13.. Limitation on Agreements. All agreements between the
Borrowers, the Administrative Agent, each CoAgent, each Lender and each
Issuing Bank in the Loan Documents are hereby expressly limited so that in no
event shall any of the Loans or other amounts payable by the Borrowers under
any of the Loan Documents be directly or indirectly secured (within the
meaning of Regulation U) by Margin Stock.
13.. Confidentiality. Subject to Section 13.01(e), the
Administrative Agent, the CoAgents, the Lenders and the Issuing Banks shall
hold all nonpublic information obtained pursuant to the requirements hereof in
accordance with such Person's customary procedures for handling confidential
information of this nature and in accordance with customary business practices
and in any event may make disclosure reasonably required by a bona fide
offeree or assignee (or participant) in connection with the contemplated
transfer (or participation), or as required or requested by any Governmental
Authority (including, without limitation, the NAIC) or representative thereof,
or pursuant to legal process, or to its accountants, lawyers and other
advisors, and shall require any such offeree or assignee (or participant) to
agree (and require any of its offerees, assignees or participants to agree) to
comply with this Section 13.20. In no event shall the Administrative Agent,
any CoAgent, any Lender or any Issuing Bank be obligated or required to return
any materials furnished by the Borrowers; provided, however, each offeree
shall be required to agree that if it does not become a assignee (or
participant) it shall return all materials furnished to it by the Borrowers in
connection herewith.
13.. Entire Agreement. This Agreement, taken together with
all of the other Loan Documents, embodies the entire agreement and
understanding among the parties hereto and supersedes the commitment letter
dated October 30, 1998 from DLJ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation and accepted and agreed to by the Company on October 30, 1998 and
all prior agreements and understandings, written and oral (other than the
Letter Agreement which constitutes a Loan Document), relating to the subject
matter hereof.
13.. Judgment Currency. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due from any Borrower
hereunder in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent's main Chicago office on the Business Day
preceding that on which final, non-appealable judgment is given. The
obligations of such Borrower in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a
currency other than the specified currency, be discharged only to the extent
that on the Business Day following receipt by such Lender or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Administrative Agent (as the case may
be) may in accordance with normal, reasonable banking procedures purchase the
specified currency with such other currency. If the amount of the specified
currency so purchased is less than the sum originally due to such Lender or
the Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Administrative Agent, as the case may be, against such loss, and
if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Lender or the Administrative Agent, as the case may be,
in the specified currency and (b) any amounts shared with other Lenders as a
result of allocations of such excess as a disproportionate payment to such
Lender under Section 13.05, such Lender or the Administrative Agent, as the
case may be, agrees to remit such excess to the Borrowers.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1.01. Certain Defined Terms
1.02. Computation of Time Periods
1.03. Accounting Terms
1.04. Other Definitional Provisions
1.05. Other Terms
ARTICLE II AMOUNTS AND TERMS OF LOANS
2.01. The Term Loans
2.02. Revolving Credit Facility
2.03. Swing Loans
2.04. Letters of Credit
2.05. Promise to Repay; Evidence of Indebtedness
2.06. Authorized Officers and Agents
2.07. Designation of Foreign Borrowers
ARTICLE III PAYMENTS AND PREPAYMENTS
3.01. Prepayments; Reductions in Revolving Credit Commitments
3.02. Payments
3.03. Taxes
3.04. Increased Capital
3.05. Right to Remove Affected Lender
3.06. European Economic and Monetary Union
ARTICLE IV INTEREST AND FEES
4.01. Interest on the Loans and Other Obligations
4.02. Special Provisions Governing Eurocurrency Rate Loans
4.03. Fees
ARTICLE V CONDITIONS TO LOANS AND LETTERS OF CREDIT
5.01. Conditions Precedent to the Effectiveness of this
Agreement
5.02. Conditions Precedent to All Subsequent Revolving Loans,
Swing Loans and Letters of Credit
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the Borrowers
ARTICLE VII REPORTING COVENANTS
7.01. Financial Statements
7.02. Notice of Events of Default
7.03. Lawsuits
7.04. Insurance
7.05. ERISA Notices
7.07. Labor Matters
7.08. Public Filings and Reports
7.09. Ongoing Y2K Reports
7.10. Other Information
ARTICLE VIII AFFIRMATIVE COVENANTS
8.01. Corporate Existence, Etc.
8.02. Corporate Powers; Conduct of Business, Etc.
8.03. Compliance with Laws, Etc.
8.04. Payment of Taxes and Claims; Tax Consolidation
8.05. Insurance
8.06. Inspection of Property; Books and Records; Discussions
8.07. Insurance and Condemnation Proceeds
8.08. ERISA Compliance
8.09. Foreign Employee Benefit Plan Compliance
8.10. Maintenance of Property
8.11. Condemnation
8.12. Future Liens on Real Property
8.13. Future Liens on Personal Property
8.14. Landlord Waivers
8.15. Environmental Compliance
8.16. PostClosing Matters
8.17. Permitted Acquisitions
ARTICLE IX NEGATIVE COVENANTS
9.01. Indebtedness
9.02. Sales of Assets
9.03. Liens
9.04. Investments
9.05. Accommodation Obligations
9.06. Restricted Junior Payments
110
9.07. Conduct of Business
9.08. Transactions with Affiliates
9.09. Restriction on Fundamental Changes
9.10. Sales and Leasebacks
9.11. Margin Regulations; Securities Laws
9.12. ERISA
9.13. Issuance or Sale of Capital Stock
9.14. Constituent Documents
9.15. Fiscal Year
9.16. Cancellation of Debt; Prepayment; Certain Amendments
9.17. Environmental Matters
9.18. Foreign Subsidiary
9.19. No New Restrictions on Subsidiary Dividends
9.20. Accounting Changes
ARTICLE X FINANCIAL COVENANTS
10.01. [Intentionally omitted]
10.02. Minimum Fixed Charge Coverage Ratio
10.03. Minimum Interest Coverage Ratio
10.04. Maximum Leverage Ratio
10.05. Maximum Capital Expenditures
ARTICLE XI EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.01. Events of Default
11.02. Rights and Remedies
ARTICLE XII THE AGENTS
12.01. Appointment
12.02. Nature of Duties
12.03. Rights, Exculpation, Etc.
12.04. Reliance
12.05. Indemnification
12.06. First Chicago, DLJ and ABN AMRO Individually
12.07. Successor Administrative Agent; Resignation of
Administrative Agent and CoAgents
12.08. Relations Among Lenders
12.09. Concerning the Collateral and the Loan Documents
ARTICLE XIII MISCELLANEOUS
13.01. Assignments
13.02. Expenses
13.03. Indemnities
13.04. Change in Accounting Principles
13.05. Setoff
13.06. Ratable Sharing
13.07. Amendments and Waivers
13.08. Notices
13.09. Survival of Warranties and Agreements
13.10. Failure or Indulgence Not Waiver; Remedies Cumulative
13.11. Marshalling; Payments Set Aside
13.12. Severability
13.13. Headings
13.14. Governing Law
13.15. Limitation of Liability
13.16. Successors and Assigns
13.17. Certain Consents and Waivers
13.18. Counterparts; Effectiveness; Inconsistencies
13.19. Limitation on Agreements
13.20. Confidentiality
13.21. Entire Agreement
13.22. Judgment Currency
EXHIBITS
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Notice of Borrowing
Exhibit C -- Form of Notice of Continuation/Conversion
Exhibit D -- Form of Term Loan Note
Exhibit E -- Form of Revolving Credit Note
Exhibit F -- Form of Swing Loan Note
Exhibit G -- Form of Foreign Borrower Assumption Agreement
Exhibit H -- List of Closing Documents
Exhibit I -- Form of Officer's Certificate to Accompany Reports
SCHEDULES
Schedule 1.01 -- Commitments; Notice Addresses; Applicable
Lending Offices
Schedule 1.01.1 -- Permitted Existing Accommodation Obligations
Schedule 1.01.2 -- Permitted Existing Indebtedness
Schedule 1.01.3 -- Permitted Existing Investments
Schedule 1.01.4 -- Permitted Existing Liens
Schedule 1.01.5 -- Associated Costs Rate
Schedule 6.01C -- Corporate Structure
Schedule 6.01-D -- Conflicts with Contractual Obligations
Schedule 6.01-E -- Governmental Consents
Schedule 6.01I -- Litigation
Schedule 6.01K -- Taxes
Schedule 6.01O -- Environmental Matters
Schedule 6.01P -- ERISA Matters
Schedule 6.01R -- Collective Bargaining Agreements
Schedule 6.01U -- Intellectual Property Infringement Claims
Schedule 6.01-V -- Real Property
Schedule 6.01W -- Insurance Policies and Programs
Schedule 6.01-Y -- Transactions with Affiliates
Schedule 6.01-CC -- Y2K Compliance
Schedule 9.02 -- Properties to be Sold
Schedule 9.16 -- Intercompany Indebtedness
Schedule 9.18 -- Permitted Accommodation Obligations and Liens
of Foreign Subsidiaries