EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 28, 2003
among
COMMERCIAL VEHICLE SYSTEMS LIMITED,
KAB SEATING LIMITED,
NATIONAL SEATING COMPANY
and
COMMERCIAL VEHICLE SYSTEMS, INC.
as Borrowers,
CVS HOLDINGS, INC.,
NATIONAL SEATING COMPANY,
COMMERCIAL VEHICLE SYSTEMS, INC.
and
▇▇▇▇▇▇▇ HOLDING, INC.,
as Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
as Swing Line Lender,
JPMORGAN CHASE BANK
as Documentation Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
BANC OF AMERICA SECURITIES LLC
Sole Lead Arranger
and Book Manager
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..................................................................... 2
1.01 Certain Defined Terms............................................................. 2
1.02 Other Interpretive Provisions..................................................... 35
1.03 Accounting Principles............................................................. 36
1.04 Currency Equivalents Generally.................................................... 37
ARTICLE II THE CREDITS..................................................................... 37
2.01 Amounts and Terms of Commitments.................................................. 37
2.02 Loan Accounts..................................................................... 40
2.03 Procedure for Borrowing........................................................... 40
2.04 Conversion and Continuation Elections............................................. 42
2.05 The Swing Line Loans.............................................................. 43
2.06 Voluntary Termination or Reduction of Revolving Loan Commitments.................. 46
2.07 Optional Prepayments.............................................................. 46
2.08 Termination of Commitments; Reduction of Commitment Amounts;
Mandatory Commitment Reductions; Mandatory Prepayments of Loans................... 47
2.09 Repayment......................................................................... 50
2.10 Interest.......................................................................... 52
2.11 Fees.............................................................................. 52
2.12 Computation of Fees and Interest.................................................. 53
2.13 Payments by the Borrowers......................................................... 54
2.14 Payments by the Lenders to the Administrative Agent............................... 55
2.15 Sharing of Payments, Etc.......................................................... 55
2.16 Utilization of Commitments in Offshore Currencies................................. 56
2.17 Security and Guaranty............................................................. 58
ARTICLE III LETTERS OF CREDIT............................................................... 58
3.01 The Letter of Credit Subfacility.................................................. 58
3.02 Issuance, Amendment and Renewal of Letters of Credit.............................. 60
3.03 Risk Participations, Drawings and Reimbursements.................................. 62
3.04 Repayment of Participations....................................................... 63
3.05 Role of Issuers................................................................... 64
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3.06 Obligations Absolute.............................................................. 65
3.07 Cash Collateral Pledge............................................................ 66
3.08 Letter of Credit Fees............................................................. 66
3.09 Uniform Customs and Practice...................................................... 67
3.10 Existing Loan Note Credit Support................................................. 67
3.11 Existing Letters of Credit........................................................ 67
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY.......................................... 68
4.01 Taxes............................................................................. 68
4.02 Illegality........................................................................ 69
4.03 Increased Costs and Reduction of Return........................................... 70
4.04 Funding Losses.................................................................... 70
4.05 Inability to Determine Rates...................................................... 71
4.06 Reserves on Offshore Rate Loans................................................... 71
4.07 Exchange Controls................................................................. 72
4.08 Certificates of Lending Party..................................................... 72
4.09 Substitution of Lenders........................................................... 72
4.10 Withholding Tax................................................................... 73
4.11 U.K. Tax Matters.................................................................. 75
4.12 Survival.......................................................................... 76
ARTICLE V CONDITIONS PRECEDENT............................................................ 76
5.01 Conditions to Effectiveness of Amendment and Restatement.......................... 76
5.02 Conditions to All Credit Extensions............................................... 79
ARTICLE VI REPRESENTATIONS AND WARRANTIES.................................................. 80
6.01 Corporate Existence and Power..................................................... 80
6.02 Corporate Authorization; No Contravention......................................... 81
6.03 Governmental Authorization........................................................ 81
6.04 Binding Effect.................................................................... 81
6.05 Litigation........................................................................ 81
6.06 No Default........................................................................ 82
6.07 ERISA Compliance.................................................................. 82
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6.08 Use of Proceeds; Margin Regulations.................................................. 83
6.09 Title to Properties.................................................................. 83
6.10 Taxes................................................................................ 83
6.11 Financial Condition.................................................................. 83
6.12 Environmental Matters................................................................ 84
6.13 Collateral Documents................................................................. 85
6.14 Regulated Entities................................................................... 86
6.15 No Burdensome Restrictions........................................................... 86
6.16 Copyrights, Patents, Trademarks and Licenses, etc.................................... 86
6.17 Capitalization; Subsidiaries......................................................... 86
6.18 Insurance............................................................................ 87
6.19 Swap Obligations..................................................................... 87
6.20 Consummation of Transaction.......................................................... 87
6.21 Solvency............................................................................. 87
6.22 Location of Real Property............................................................ 87
6.23 Full Disclosure...................................................................... 88
ARTICLE VII AFFIRMATIVE COVENANTS.............................................................. 88
7.01 Financial Statements................................................................. 88
7.02 Certificates; Other Information...................................................... 89
7.03 Notifications........................................................................ 90
7.04 Preservation of Corporate Existence, Etc............................................. 91
7.05 Maintenance of Property.............................................................. 91
7.06 Insurance............................................................................ 92
7.07 Payment of Obligations............................................................... 92
7.08 Compliance with Laws................................................................. 92
7.09 Compliance with ERISA................................................................ 93
7.10 Inspection of Property and Books and Records......................................... 93
7.11 Environmental Laws................................................................... 93
7.12 Use of Proceeds...................................................................... 94
7.13 Further Assurances; Additional Pledge; Additional Collateral Documents............... 94
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(continued)
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7.14 Additional Guaranties and Personal Property Pledge............................... 95
7.15 Additional Real Property......................................................... 96
7.16 Additional Capital............................................................... 96
ARTICLE VIII NEGATIVE COVENANTS............................................................ 96
8.01 Limitation on Liens.............................................................. 96
8.02 Disposition of Assets............................................................ 99
8.03 Consolidations and Mergers....................................................... 100
8.04 Loans and Investments............................................................ 100
8.05 Limitation on Indebtedness....................................................... 102
8.06 Transactions with Affiliates..................................................... 103
8.07 Use of Proceeds.................................................................. 104
8.08 Contingent Obligations........................................................... 104
8.09 Restricted Payments.............................................................. 105
8.10 ERISA............................................................................ 106
8.11 Change in Business............................................................... 106
8.12 Accounting Changes............................................................... 106
8.13 Amendments to Organizational Documents or Management Agreement;
Preferred Stock.................................................................. 106
8.14 Net Worth........................................................................ 107
8.15 Total Leverage Ratio............................................................. 107
8.16 Fixed Charge Coverage Ratio...................................................... 107
8.17 Minimum EBITDA................................................................... 108
8.18 Capital Expenditures............................................................. 108
8.19 Restrictive Agreements........................................................... 109
ARTICLE IX EVENTS OF DEFAULT............................................................. 109
9.01 Event of Default................................................................. 109
9.02 Remedies......................................................................... 112
9.03 Rights Not Exclusive............................................................. 112
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(continued)
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ARTICLE X THE AGENTS..................................................................... 113
10.01 Appointment and Authorization..................................................... 113
10.02 Delegation of Duties.............................................................. 113
10.03 Liability of Agents............................................................... 113
10.04 Reliance by Agents................................................................ 114
10.05 Notice of Default................................................................. 114
10.06 Credit Decision................................................................... 115
10.07 Indemnification of Agents......................................................... 115
10.08 Agent in Individual Capacity...................................................... 116
10.09 Successor Administrative Agent.................................................... 116
10.10 Administrative Agent May File Proofs of Claim..................................... 117
10.11 Collateral Matters................................................................ 118
10.12 Administrative Agent as English Trustee........................................... 119
ARTICLE XI MISCELLANEOUS.................................................................. 119
11.01 Amendments, Etc................................................................... 119
11.02 Notices........................................................................... 120
11.03 No Waiver; Cumulative Remedies.................................................... 121
11.04 Costs and Expenses................................................................ 121
11.05 Borrower Indemnification.......................................................... 122
11.06 Marshalling; Payments Set Aside................................................... 124
11.07 Successors and Assigns............................................................ 124
11.08 Assignments, Participations, etc.................................................. 124
11.09 Confidentiality................................................................... 126
11.10 Set-off........................................................................... 127
11.11 Automatic Debits of Fees.......................................................... 128
11.12 Notification of Addresses, Lending Offices, Etc................................... 128
11.13 Counterparts...................................................................... 128
11.14 Severability...................................................................... 128
11.15 No Third Parties Benefited........................................................ 128
11.16 GOVERNING LAW AND JURISDICTION.................................................... 129
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11.17 WAIVER OF JURY TRIAL.............................................................. 129
11.18 Judgment.......................................................................... 130
11.19 Intercreditor Agreement........................................................... 130
11.20 Entire Agreement.................................................................. 131
ARTICLE XII GUARANTIES OF U.S. GUARANTORS................................................... 131
12.01 The Guaranties.................................................................... 131
12.02 Returned Payments................................................................. 132
12.03 Authorization..................................................................... 132
12.04 Miscellaneous..................................................................... ▇▇▇
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▇▇▇▇▇▇▇▇▇
Schedule 1.01 Pricing Grid
Schedule 2.01 Commitments, Pro Rata Shares and Term Loans
Schedule 2.17 Dormant Subsidiaries
Schedule 3.10 Existing Loan Note Credit Support
Schedule 3.11 Existing Letters of Credit
Schedule 6.05 Litigation
Schedule 6.07 ERISA
Schedule 6.11 Financial Statements
Schedule 6.17 Capitalization; Subsidiaries and Minority Interests
Schedule 6.18 Insurance Matters
Schedule 6.22(a) Owned Real Property
Schedule 6.22(b) Leased Real Property
Schedule 8.01 Permitted Liens
Schedule 8.04 Investments
Schedule 8.05 Permitted Indebtedness
Schedule 8.08 Contingent Obligations
Schedule 11.02 Administrative Agent's Office: Lending Offices; Addresses
for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E-1 Form of Opinion ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Exhibit E-2 Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Exhibit F-1 Form of BHI Solvency Certificate
Exhibit F-2 Form of Company Solvency Certificate
Exhibit F-3 Form of KAB Seating Solvency Certificate
Exhibit F-4 Form of NSC Solvency Certificate
Exhibit F-5 Form of CVS, Inc. Solvency Certificate
Exhibit G Form of Borrowing Base Certificate
Exhibit H Form of EBITDA Certificate
Exhibit I Form of Perfection Certificate
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of March 28, 2003,
and is made by and among Commercial Vehicle Systems Limited, a private limited
liability company incorporated under the laws of England and Wales (the
"Company"), KAB Seating Limited, a private limited company incorporated under
the laws of England and Wales ("KAB Seating"), National Seating Company, a
corporation incorporated under the laws of the State of Delaware ("NSC"),
Commercial Vehicle Systems, Inc., a corporation incorporated under the laws of
the State of Delaware ("CVS, Inc."), CVS Holdings, Inc., a corporation
incorporated under the laws of the State of Delaware ("CVS Holdings, Inc."),
▇▇▇▇▇▇▇ Holding, Inc., a corporation incorporated under the laws of the State of
Delaware ("BHI"), the several financial institutions from time to time party to
this Agreement (each individually a "Lender" and, collectively, the "Lenders"),
Fleet National Bank, as an Issuer and Bank of America, N.A., as administrative
agent for the Lenders (the "Administrative Agent"), Collateral Agent, Swing Line
Lender and an Issuer.
WHEREAS, the Company, the Administrative Agent, the Lenders and certain
other parties previously entered into a US$70,000,000 Credit Agreement, dated as
of September 1, 2000 (as amended to the date hereof, the "Original U.K. Credit
Agreement");
WHEREAS, CVS, Inc., CVS Holdings, Inc., the Administrative Agent, certain
of the Lenders and certain other parties previously entered into a US$70,000,000
Credit Agreement, dated as of March 31, 2000 (as amended to the date hereof, the
"Original U.S. Credit Agreement");
WHEREAS, the parties hereto desire to consolidate the Original U.S. Credit
Agreement and the Original U.K. Credit Agreement and to amend and restate both
such documents as set forth herein;
WHEREAS, each of the Company, KAB Seating, NSC, CVS, Inc. and CVS
Holdings, Inc is a direct or indirect Wholly-Owned Subsidiary of BHI;
WHEREAS, BHI intends to cause CVS Merger Co., a corporation incorporated
under the laws of the State of Delaware and a Wholly-Owned Subsidiary of BHI
(the "Merging Subsidiary"), to merge (the "Merger") into CVS Holdings, Inc., and
BHI intends to cause CVS Holdings, Inc. to be the surviving entity of the Merger
as a Wholly-Owned Subsidiary of BHI;
WHEREAS, in order to continue the term loans outstanding under the
Original U.S. Credit Agreement and the Original U.K. Credit Agreement, Existing
Term Loans will be deemed to be outstanding hereunder;
WHEREAS, the NSC Term Loan Commitment will be used by the applicable
Borrower to support a letter of credit outstanding on the date hereof;
WHEREAS, the Sterling Term Loan Commitment will be used to repurchase Loan
Notes and to support the Loan Note Credit Support;
1
WHEREAS, a portion of the Revolving Loan Commitment will be used by the
Borrowers and their respective Subsidiaries to continue the revolving loans
outstanding under the Original U.S. Credit Agreement and the Original U.K.
Credit Agreement and for ongoing working capital and general corporate purposes
of the Borrowers and their respective subsidiaries; and
WHEREAS, the Lenders are willing to extend commitments to make term loans,
revolving credit loans and swing line loans to the Borrowers and the Issuers are
willing to issue letters of credit on the application of Borrowers, in each case
for the purposes specified above and only on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree that the Original U.S. Credit
Agreement and the Original U.K. Credit Agreement are hereby amended and restated
in their entirety to state collectively as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary).
"Additional Capital" shall have the meaning specified in Section 7.16.
"Adjusted Working Capital" means the remainder of:
(a) (i) the consolidated current assets of BHI and its Subsidiaries,
less (ii) the amount of cash and cash equivalents included in such
consolidated current assets;
less
(b) (i) consolidated current liabilities of BHI and its Subsidiaries,
less (ii) the amount of short-term Indebtedness (including current
maturities of long-term Indebtedness) of BHI and its Subsidiaries
included in such consolidated current liabilities.
"Administrative Agent" means Bank of America in its capacity as
administrative agent for the Lending Parties hereunder, and any successor
Administrative Agent appointed pursuant to Section 10.09.
2
"Administrative Agent's Office" means the Administrative Agent's address
as set forth in Schedule 11.02, or such other address as the Administrative
Agent may from time to time specify to the Borrowers and the Lenders.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person (i) possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise; or (ii) possesses, directly or indirectly, the power to vote 10%
or more of the Voting Equity of the other Person.
"Agent-Related Persons" means Bank of America, in its various agency,
lending and letter of credit issuing capacities hereunder, and any successor
Administrative Agent arising under Section 10.09 or any successor Collateral
Agent, and any successor Issuer hereunder, together with its respective
Affiliates (including the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means each of the addresses for payments set
forth on Schedule 11.02 in respect of the currencies set forth on such Section
11.02 or such other addresses as the Administrative Agent may from time to time
specify.
"Agreed Alternative Currency" has the meaning specified in Section
2.16(e).
"Agreement" means this Amended and Restated Credit Agreement, as the same
may be amended, supplemented, restated or otherwise modified from time to time.
"Aggregate Commitment" means, at any time, the sum of (a) the Aggregate
Revolving Loan Commitment, (b) the Aggregate NSC Term Loan Commitment and (c)
the Aggregate Sterling Term Loan Commitment.
"Aggregate Existing Dollar Term Loan Commitment Amount" means the sum of
the Existing Dollar Term Loan Commitment Amounts of the Lenders, equal to
$37,316,059.99 on the Closing Date.
"Aggregate Existing Sterling Term Loan Commitment Amount" means the sum of
the Existing Sterling Term Loan Commitment Amounts of the Lenders, equal to
(pound)2,321,637.91 on the Closing Date.
"Aggregate NSC Term Loan Commitment" means the sum of the NSC Term Loan
Commitments of the Lenders, equal to $6,820,547.95 on the Closing Date.
"Aggregate Revolving Loan Commitment" means the aggregate Revolving Loan
Commitments of the Lenders, equal to the Equivalent Amount of $35,000,000 as the
same may be adjusted from time to time pursuant to the terms of this Agreement.
"Aggregate Sterling Term Loan Commitment" means the sum of the aggregate
Sterling Term Loan Commitments of the Lenders, equal on the Closing Date to
(pound)5,475,586.50.
3
"Agreement" means this Amended and Restated Credit Agreement.
"Agreement Currency" has the meaning specified in Section 11.18.
"Applicable Base Rate Margin" means, at all times prior to the delivery of
a Compliance Certificate pursuant to subsection 7.02(b) for the fiscal quarter
ended March 31, 2003, a per annum rate equal to 250.0 basis points and, at all
times thereafter, a per annum rate equal to the Applicable Base Rate Margin in
effect at such time as determined by reference to the Pricing Grid attached
hereto as Schedule 1.01 and the applicable Total Leverage Ratio for the
applicable period, determined as of the last day of the immediately preceding
fiscal quarter.
"Applicable Currency" as to any particular payment, Loan or Letter of
Credit, means Dollars or the Offshore Currency in which such payment, Loan or
Letter of Credit is denominated or payable.
"Applicable Offshore Rate Margin" means, at all times prior to the
delivery of a Compliance Certificate pursuant to subsection 7.02(b) for the
fiscal quarter ended March 31, 2003, a per annum rate equal to 375.0 basis
points and, at all times thereafter, a per annum rate equal to the Applicable
Offshore Rate Margin in effect at such time as determined by reference to the
Pricing Grid attached hereto as Schedule 1.01 and the applicable Total Leverage
Ratio for the applicable period, determined as of the last day of the
immediately preceding fiscal quarter.
"Approved Fund" means, any fund that invests in bank loans and is advised
or managed by a Lender, an Affiliate of a Lender or an entity or an Affiliate of
an entity that advises or manages a Lender.
"Arranger" means Banc of America Securities LLC, a Delaware limited
liability company, as Sole Lead Arranger.
"Asset Disposition" has the meaning specified in Section 8.02.
"Assignee" has the meaning specified in subsection 11.08(a).
"Assignment and Acceptance" has the meaning specified in Section 11.08(a).
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel.
"Bank of America" means Bank of America, N.A., a national banking
association.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of (a) 0.50% per annum above
the latest Federal Funds Rate; and (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its "prime
rate." (The "prime rate" is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return,
4
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate.)
Any change in the prime rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan or an L/C Advance that bears interest based
on the Base Rate.
"basis point" means one one-hundredth of one percent.
"BHI" has the meaning specified in the preamble of this Agreement.
"Borrower" means each of the Company, KAB Seating, NSC and CVS, Inc., as
the context may require, and their respective successors, and "Borrowers" means
all of the foregoing. When used in connection with a specific Credit Extension,
the term "Borrower" means the obligor (or proposed obligor) with respect
thereto.
"Borrower Representative" has the meaning specified in Section
2.03(a)(ii).
"Borrowing" means a borrowing hereunder consisting of Loans of the same
Type and in the same Applicable Currency made to a Borrower on the same day by
the Lenders under Article II, and, in the case of Offshore Rate Loans, having
the same Interest Period.
"Borrowing Base" means the amount set forth on the Borrowing Base
Certificate most recently delivered to the Administrative Agent pursuant to
Section 7.02(e), equal to the sum of (i) 85% of all receivables of BHI and its
Subsidiaries plus (ii) 55% of all inventory of BHI and its Subsidiaries, in each
case determined in accordance with GAAP and subject to GAAP reserves.
"Borrowing Base Certificate" means a certificate substantially in the form
of Exhibit G.
"Borrowing Date" means any date on which a Borrowing occurs under Section
2.03.
"▇▇▇▇▇▇▇ International" means ▇▇▇▇▇▇▇ International Limited., a private
limited liability company incorporated under the laws of England and Wales.
"▇▇▇▇▇▇▇ Ltd." means ▇▇▇▇▇▇▇ Limited, a private limited liability company
incorporated under the laws of England and Wales
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York, or in the state where the
Administrative Agent's Office is located, are authorized or required by law to
close, and with respect to any rate quotations, disbursements or payments in and
calculations pertaining to any Offshore Currency Loan, a day on which commercial
banks are open for foreign exchange business in London, England, and on which
dealings in the relevant Offshore Currency are carried on in the applicable
offshore foreign exchange interbank market in which disbursements or payment in
such Offshore Currency will be made or received hereunder.
5
"Capital Expenditures" means, for any Person for any period, the sum of
all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a consolidated balance sheet of
such Person; provided, however, that Capital Expenditures shall not include (i)
proceeds from insurance or condemnation to the extent that such proceeds from
insurance or condemnation are reinvested in assets as permitted under this
Agreement, (ii) any portion of the purchase price paid in connection with a
Permitted Acquisition or (iii) proceeds from the sale of assets reinvested
within 180 days in assets in an aggregate amount not to exceed $1,000,000 in any
fiscal year.
"Capital Stock" means (a) in the case of a corporation, corporate stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person a similar right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person other than an interest or participation that would constitute
compensation expense or purchase price for a Permitted Acquisition in accordance
with GAAP.
"Capitalized Leases" means all leases that should be, in accordance with
GAAP, recorded as capitalized leases.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Collateral Agent, for the benefit of the Administrative Agent, the Issuer and
the Lenders, as additional collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the Issuer (which documents are
hereby consented to by the Lenders). Derivatives of such term shall have
corresponding meanings.
"CERCLA" shall mean the Comprehensive Environmental Response Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
"Change of Control" means the occurrence of any of the following: (a) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of BHI and its Subsidiaries taken as a whole to
any "person" (as such term is used in Section 13(d)(3) of the Exchange Act); (b)
the adoption of a plan relating to the liquidation or dissolution of any Loan
Party; (c) the Existing Hidden Creek Investors or their Related Parties,
collectively, cease to own and cease to have the right to vote directly or
indirectly at least 51% of the Voting Equity of J2R; (d) J2R and/or Onex and/or
its or their Related Parties, collectively, cease to have the right to vote
directly or indirectly at least 51% of the Voting Equity of BHI; (e) except as
otherwise permitted under subsection 8.03(b), BHI consolidates with, or merges
with or into, any Person, or any Person consolidates with, or merges with or
into, BHI, in any such event pursuant to a transaction in which any of the
outstanding Voting Equity of BHI is converted into or exchanged for cash,
securities or other property, other than any such transaction where the Voting
Equity of BHI outstanding immediately prior to such transaction is converted
into or exchanged for Voting
6
Equity of the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Equity of such surviving or transferee Person
(immediately after giving effect to such issuance), (f) BHI ceases to own,
beneficially and of record, 100% of the Voting Equity of CVS Holdings Ltd., (g)
CVS Holdings, Inc. ceases to own, beneficially and of record, 100% of the Voting
Equity of CVS, Inc. or (g) ▇▇▇▇▇▇▇ Limited shall cease to be a Wholly-Owned
Subsidiary of the Company.
"Closing Date" means the date on which all conditions precedent set forth
in Section 5.01 are satisfied or waived in accordance with the terms of this
Agreement.
"Code" means the Internal Revenue Code of 1986 and regulations promulgated
thereunder.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by the Borrowers, any of their
respective Subsidiaries or any Guarantor in or upon which a Lien now or
hereafter exists in favor of the Lenders, or the Administrative Agent or the
Collateral Agent on behalf of the Lenders, under this Agreement, under the
Collateral Documents or under any other documents executed by any such Person
and delivered to the Administrative Agent, the Collateral Agent or the Lenders.
"Collateral Agent" means Bank of America, in its capacity as collateral
agent under the Collateral Documents.
"Collateral Documents" means, collectively (if and when each such document
is required to be executed and delivered pursuant to the terms of this
Agreement), (a) the Security Agreements, the Guaranties, the Mortgages (if any),
the Pledge Agreements and all other security agreements, mortgages, deeds of
trust, patent and trademark assignments, lease assignments, guarantees and other
similar agreements between any Loan Party and the Lenders, or the Administrative
Agent or the Collateral Agent for the benefit of the Administrative Agent, the
Issuers and the Lenders, now or hereafter delivered to the Lenders, the
Administrative Agent or the Collateral Agent pursuant to or in connection with
the transactions contemplated hereby, and all financing statements (or
comparable documents now or hereafter filed in accordance with the UCC or
comparable law) against any Loan Party as debtor in favor of the Administrative
Agent or the Collateral Agent for the benefit of the Administrative Agent, the
Issuers and the Lenders as secured party, (b) the letter agreement, dated as of
the date hereof, between NSC and the Administrative Agent and (c) all
amendments, restatements, supplements, modifications, renewals, replacements,
reaffirmations, confirmations, consolidations, substitutions and extensions of
any of the foregoing.
"Commitment" means, as to each Lender, the sum of (a) such Lender's NSC
Term Loan Commitment, plus (b) such Lender's Sterling Term Loan Commitment, plus
(c) such Lender's Revolving Loan Commitment.
"Commitment Fee" has the meaning specified in Section 2.11(b).
"Companies Act" means the Companies Act of 1985 of the United Kingdom.
"Company" has the meaning specified in the preamble of this Agreement.
7
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Computation Date" has the meaning specified in Section 2.16(a).
"Consolidated Interest Expense" means, for any period, the total interest
expense (including that attributable to capital leases) of BHI and its
Subsidiaries on a consolidated basis in accordance with GAAP (excluding costs
and expenses related to the incurrence of indebtedness); provided, however, that
for any four quarter period which commences prior to the Merger (the
"Calculation Period"), Consolidated Interest Expense for the period commencing
from the start of such four quarter period to, but not including, the effective
date of the Merger (as used in this definition, the "Pre-Merger Period") shall
be an amount equal to (x) Consolidated Interest Expense for CVS Holdings, Inc.
and its Subsidiaries for the Pre-Merger Period plus (y) Consolidated Interest
Expense for BHI and its Subsidiaries (other than CVS Holdings, Inc. and its
Subsidiaries) for the Pre-Merger Period (it being understood that for the
remainder of any Calculation Period, Consolidated Interest Expense shall be
calculated as set forth prior to this proviso).
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each of (i)-(iv), a "Guaranty Obligation"); (b) with respect to any
Surety Instrument issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings or payments; (c) to
purchase any materials, supplies or other property from, or to obtain the
services of, another Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or such
services are ever performed or tendered; or (d) in respect of any Swap Contract.
The amount of any Contingent Obligation, (w) in the case of Guaranty
Obligations, shall be deemed equal to the lesser of (i) the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and (ii) the stated amount
of the guaranty, (x) in the case of Contingent Obligations in respect of Swap
Contracts, shall be deemed equal to the aggregate Swap Termination Value of such
Swap Contracts, (y) in the case of Contingent Obligations in respect of Surety
Instruments other than Non-Surety L/Cs, shall be deemed equal to the probable
amount of the expected liability thereunder, and (z) in the case of Contingent
Obligations in respect of Non-Surety L/Cs, shall be deemed equal to (i) the face
amount of outstanding Non-Surety L/Cs which are not Letters of Credit and (ii)
the outstanding amount of L/C Obligations in respect of Non-Surety L/Cs which
are Letters of Credit.
8
"Continuation Fee" has the meaning specified in Section 2.11(c).
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any material agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, material
document or material agreement to which such Person is a party or by which it or
any of its material property is bound.
"Conversion/Continuation Date" means any date on which, under Section
2.04, the Company (a) converts Loans (other than Swing Line Loans) of one Type
to another Type, or (b) continues Loans having Interest Periods expiring on such
date as Loans of the same Type, but with a new Interest Period.
"Credit Extension" means and includes (a) the making of any Loans
hereunder, and (b) the Issuance of any Letters of Credit hereunder.
"CVS Holdings, Inc." has the meaning specified in the preamble of this
Agreement.
"CVS Holdings, Inc. Guaranty" means the obligations of CVS Holdings, Inc.
set forth in Article XII hereof.
"CVS Holdings Ltd." means CVS Holdings Limited, a private limited company
incorporated under the laws of England and Wales.
"CVS, Inc." has the meaning specified in the preamble of this Agreement.
"CVS, Inc. Guaranty" means the obligations of CVS, Inc. set forth in
Article XII hereof.
"Deed of Confirmation" means the Deed of Confirmation, dated the Closing
Date, among Bank of America, CVS Ltd., CVS Holdings Ltd., ▇▇▇▇▇▇▇ Ltd., ▇▇▇▇▇▇▇
International and KAB Seating.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Dollars," "dollars," U.S. Dollars and "$" each mean lawful currency of
the United States.
"EBITDA" means, for any period, for BHI and its Subsidiaries on a
consolidated basis, determined in accordance with GAAP, and without duplication,
the sum of (a) the Net Income (or Net Loss) for such period, plus (b) all
amounts treated as expenses for (x) depreciation and the amortization of
intangibles of any kind and similar non-cash charges and (y) interest, in each
case to the extent included in the determination of such net income (or loss),
plus (c) the provision for taxes based on income for such period, plus (d) fees
and expenses (including non-recurring payments made pursuant to employee
retention plans put in place in connection with a Permitted Acquisition in order
to retain employees of the Person being acquired) incurred in connection with
any Permitted Acquisition to the extent included in the determination of such
net income (or loss), plus (e) Additional Capital for such period, if
applicable; provided,
9
however, that Net Income (or Net Loss) shall be computed without giving effect
to extraordinary gains or extraordinary losses (including, without limitation,
gains and losses with respect to foreign exchange and/or interest rate
protection adjustments reflected in the income statement of BHI) or other
non-cash restructuring charges; provided further that "EBITDA" for the first
four complete fiscal quarters ending after the Closing Date shall be calculated
on a Pro Forma Basis as if the Transaction had been consummated on the first day
of such applicable four quarter period; provided, further, that for any four
quarter period which commences prior to the effective date of the Merger (the
"Calculation Period"), EBITDA for the period commencing from the start of such
four quarter period to, but not including, the Merger (as used in this
definition, the "Pre Merger Period") shall be an amount equal to (x) EBITDA for
CVS Holdings, Inc. and its Subsidiaries for the Pre-Merger Period plus (y)
EBITDA for BHI and its Subsidiaries (other than CVS Holdings, Inc. and its
Subsidiaries) for the Pre-Merger Period (it being understood that for the
reminder of any Calculation Period, EBITDA shall be calculated as set forth
prior to this proviso).
"EBITDA Certificate" means a certificate substantially in the form of
Exhibit H.
"EBITDAR" means, for any period, EBITDA for such period, plus Rental
Obligations for such period.
"Effective Amount" means, as of any Computation Date (i) with respect to
any Loans of any Type outstanding as of any date, the Equivalent Amount of the
aggregate outstanding principal amount thereof after giving effect to any
Borrowings and prepayments or repayments of Loans of such Type occurring on such
date; and (ii) with respect to any outstanding L/C Obligations on any date, the
Equivalent Amount of the amount of such L/C Obligations on such date after
giving effect to any Issuances of Letters of Credit occurring on such date and
any other changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit or any reductions in the maximum amount available
for drawing under Letters of Credit taking effect on such date.
"Eligible Assignee" means (a) a Lender, (b) an Approved Fund, (c) a
commercial bank organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least $100,000,000; (d)
a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; (e) a Person that is
primarily engaged in the business of commercial banking and that is (i) a
Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a Lender is a
Subsidiary, or (iii) a Person of which a Lender is a Subsidiary; (f) (i) an
"accredited investor," as such term is defined in Rule 501(a) of Regulation D
under the Securities Act of 1933, as amended (other than the Company or an
Affiliate of the Company) or (ii) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is, in each case, primarily engaged in the business of
making, purchasing or otherwise investing in commercial loans; and (g) any other
entity approved by the Borrower Representatives, the Issuers and the
Administrative Agent; provided, that, in each case, such Person, as of the
effective date of any assignment pursuant to
10
Section 11.08, has the ability to fund its obligations under this Agreement in
each Offshore Currency at the applicable Agent's Payment Office.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment, personal injury (including sickness, disease or death),
property damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), investigation, cleanup,
removal, remedial or response costs, restitution, civil or criminal penalties,
injunctive relief, or other type of relief, resulting from or based upon the
presence, placements, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental, placements, spills, leaks, discharges, emissions or releases) of
any Hazardous Material at, in, or from any property, whether or not owned by the
Company or any of its respective Subsidiaries or taken as collateral, or in
connection with any operations of such Loan Party.
"Environmental Laws" means all applicable federal, provincial, state,
municipal or local laws, statutes, common law duties, rules, regulations,
directives, ordinances and codes, together with all administrative orders,
directed duties, requests, licenses, requirements of authorizations and permits
of, and agreements with, any Governmental Authority, in each case relating to
protection of the environment or occupational health and safety, and the
generation, use, transportation or disposal of Hazardous Materials, including
without limitation, CERCLA, the Clean Air Act, the Federal Water Pollution
Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource
Conservation and Recovery Act, and the Toxic Substances Control Act.
"Environmental Permits" has the meaning specified in subsection 6.12(b).
"Equivalent Amount" means, as of any Computation Date, the amount
determined by reference to the following table:
IF THE NOTIONAL AMOUNT THE EQUIVALENT AMOUNT THE EQUIVALENT AMOUNT IN AN
IS DENOMINATED IN: IN DOLLARS IS: OFFSHORE CURRENCY IS:
---------------------- --------------------------- -----------------------------------
Dollars Such Amount The amount of such Offshore
Currency that can be purchased
with Dollars at the Spot Rate
An Offshore Currency The amount of Dollars that The amount of such Offshore
can be purchased with such Currency or, if to another Offshore
Offshore Currency at the Currency, the amount of such
Spot Rate other Offshore Currency that can
be purchased with such Offshore
Currency at the Spot Rate
"ERISA" means the Employee Retirement Income Security Act of 1974 and
regulations promulgated thereunder.
11
"ERISA Affiliate" means, with respect to the Company, any trade or
business (whether or not incorporated) under common control with the Company
within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and
(o) of the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means, with respect to the Company, (a) a Reportable Event
with respect to a Pension Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or
any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination under Section 4041
or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan
or Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate.
"Euro" means the single currency of Participating Member States introduced
in accordance with Article 123 of the Treaty and, in respect of all payments to
be made under this Agreement in Euros, readily available, freely transferable
funds.
"Event of Default" means any of the events or circumstances specified in
Section 9.01.
"Event of Loss" means, with respect to any property, any of the following:
(a) any loss, theft, destruction or damage of such property; (b) any institution
of any proceedings for the condemnation or seizure of such property or for the
exercise of any right of eminent domain; or (c) any actual condemnation, seizure
or taking, by exercise of the power of eminent domain or otherwise, of such
property, or confiscation of such property or the requisition of the use of such
property.
"Exchange Act" means the Securities Exchange Act of 1934 and the
regulations promulgated thereunder.
"Excess Cash Flow" means for any period, the remainder of
(a) the sum, without duplication, of
(i) EBITDA, plus
(ii) any net decrease in Adjusted Working Capital during such
period (exclusive of decreases in working capital associated
with asset sales), plus
(iii) any net cash extraordinary gains included in determining Net
Income, minus
12
(b) the sum, without duplication, of
(i) Consolidated Interest Expense, to the extent paid in cash,
plus
(ii) repayments of principal of the Term Loans, prepayments of
principal of the Revolving Loans reflecting reductions in
the Revolving Loan Commitments, principal payments arising
with respect to any other long-term Indebtedness of BHI and
its Subsidiaries, and the portion of any payments with
respect to Capitalized Leases allocable to principal, in
each case during such period, plus
(iii) any payment of long-term liabilities to the extent not
reflected in the change in Adjusted Working Capital during
such period, plus
(iv) Capital Expenditures of BHI and its Subsidiaries permitted
to be made for such period, except to the extent made from
proceeds of Indebtedness (other than Revolving Loans or
Swing Line Loans) or new equity issuances or reinvestment of
disposition proceeds, plus
(v) all federal, state, local and foreign income taxes paid in
cash by BHI and its Subsidiaries during such period, plus
(vi) any net increase in Adjusted Working Capital during such
period (exclusive of increases in working capital associated
with asset purchases), plus
(vii) Investments of the types described in subsections 8.04(d)
and (j) made in cash during such period, plus
(viii) Distributions of the type described in subsection 8.09(c)
made in cash during such period, plus
(ix) any net cash extraordinary charges, to the extent deducted
in computing Net Income for such period.
"Excluded Equity" has the meaning specified in Section 2.08(g).
"Excluded Offsite Inventory and Equipment" means inventory and equipment
from time to time stored at locations of certain suppliers of the Borrowers;
provided that (i) the fair market value of such inventory shall at no time
exceed $2,500,000 in the aggregate and (ii) the fair market value of such
equipment shall at no time exceed $2,500,000 in the aggregate.
"Existing Dollar Commitment Amount" means, as to each Lender, such
Lender's Existing Dollar Commitment Amount, as specified on Schedule 2.01, as
the same may be adjusted from time to time pursuant to the terms of this
Agreement.
"Existing Dollar Term Loan" has the meaning specified in Section 2.01(b).
13
"Existing Fleet Letter of Credit" has the meaning specified in Section
3.11.
"Existing Hidden Creek Investors" means those individuals holding equity
interests in J2R as of the Closing Date.
"Existing Letters of Credit" has the meaning specified in Section 3.11.
"Existing Loan Note Credit Support" has the meaning specified in Section
3.10
"Existing Sterling Commitment Amount" means as to each Lender such
Lender's Existing Sterling Commitment Amount, as specified on Schedule 2.01, as
the same may be adjusted from time to time pursuant to the terms of this
Agreement.
"Existing Sterling Term Loans" has the meaning specified in Section
2.01(c).
"Existing Term Loans" has the meaning specified in Section 2.01(c).
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" has the meaning specified in subsection 2.11(a).
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal quarter,
the ratio of (i) EBITDAR for the four fiscal quarter period then ended, minus
Capital Expenditures of BHI and its Subsidiaries for the four fiscal quarter
period then ended, minus taxes payable in cash by BHI and its Subsidiaries for
the four fiscal quarter period then ended to (ii) the sum of Fixed Charges for
such four fiscal quarter period.
"Fixed Charges" means, with respect to BHI and its Subsidiaries on a
consolidated basis, as of any date of determination, (a) Consolidated Interest
Expense (but excluding any payment-in-kind interest) payable in cash for the
period of four fiscal quarters ending on the date of determination, (b) Rental
Obligations for the period of four fiscal quarters ending on the date of
determination, and (c) the amount of payments made by BHI and its Subsidiaries
in respect of principal on the Obligations during the period of four fiscal
quarters ending on the date of determination; provided that, for purposes of
calculating the Fixed Charges for the fiscal quarters ending on March 31, 2003,
June 30, 2003, September 30, 2003 and December 31, 2003, the amount of principal
payments referenced in this clause (c) shall be deemed to be $5,000,000.
"Foreign 956 Subsidiary" means any Subsidiary (i) that is a Non-U.S.
Subsidiary where a guaranty of the Obligations by such Subsidiary which would
result in a material deemed
14
dividend of its current and accumulated earnings and profits under section 956
of the Code or (ii) where a guaranty of Obligations of such Subsidiary would
result in a material adverse tax consequence under any similar foreign tax law.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States, and any Governmental Authority succeeding to any of its principal
functions.
"Funded Indebtedness" of any Person means all Indebtedness of such Person
except (a) Indebtedness specified in clause (c) of the definition of
"Indebtedness" and in clauses (i) and (h) of the definition of "Indebtedness,"
to the extent they relate to Indebtedness referred to in such clause (c), and
(b) Permitted Earn-Out Debt.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including net income taxes and franchise taxes but excluding any internal
charges), and all liabilities with respect thereto, imposed by any jurisdiction
on account of amounts payable or paid pursuant to Section 4.01.
"FX Trading Office" means the Bank of America Foreign Exchange Trading
Desk in Charlotte, North Carolina, or such other office or source of information
as the Administrative Agent may designate with the concurrence of the Company.
"GAAP" means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means (a) any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial or regulatory functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing, and (b) the National
Association of Insurance Commissioners.
"Guaranteed Creditors" means and includes (i) the Administrative Agent,
the Collateral Agent, the Issuers and the Lenders and (ii) each Person (other
than any Loan Party) which is a party to a Swap Agreement to the extent such
Person constitutes a Secured Creditor.
"Guaranteed Obligations" means (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principal
and interest (whether such interest is allowed as a claim in a bankruptcy
proceeding with respect to any Borrower or otherwise) on each Loan made under
this Agreement and all reimbursement obligations and unpaid drawings with
respect to Letters of Credit, together with all other Obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities (including liabilities for
Administrative Agent, Collateral Agent or Issuer indemnities and fees and
interest thereon) of any Borrower to such Lender, Administrative Agent,
Collateral Agent or Issuer now existing or hereafter incurred under,
15
arising out of or in connection with this Agreement or any other Loan Documents
and the due performance and compliance with all terms, conditions and agreements
contained in the Loan Documents by any Borrower and (ii) the full and prompt
payment when due (whether by acceleration or otherwise) of all obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) of any Borrower or its Subsidiaries owing
under any Swap Contract entered into by any Borrower or any of its Subsidiaries
with any Lender or any Affiliate thereof (even if such Lender subsequently
ceases to be a Lender under this Agreement for any reason) so long as such
Lender or Affiliate participates in such Swap Contract and their subsequent
assigns, if any, whether or not in existence or hereafter arising, and the due
performance and compliance with all terms, conditions and agreements contained
therein.
"Guarantors" means: (a) with respect to the Company: BHI, each U.K.
Subsidiary of BHI (other than the Company) and each U.S. Subsidiary of BHI; (b)
with respect to KAB Seating: BHI, each U.K. Subsidiary of BHI (other than KAB
Seating) and each U.S. Subsidiary of BHI; (c) with respect to NSC: BHI, each
U.K. Subsidiary of BHI (other than Foreign 956 Subsidiaries) and each U.S.
Subsidiary of BHI (other than NSC); (d) with respect to CVS, Inc., BHI, each
U.K. Subsidiary of BHI (other than Foreign 956 Subsidiaries) and each U.S.
Subsidiary of BHI (other than CVS, Inc.); and (e) any Person delivering a
Guaranty pursuant to Section 7.14; provided, that the term "Guarantor" shall not
include any of the Subsidiaries set forth on Schedule 2.17.
"Guaranty" means, collectively, (a) the Syndicated Composite Guarantee and
Debenture, dated October 5, 2000, by the Company, ▇▇▇▇▇▇▇ Ltd., KAB Seating and
NSC, (b) the National Seating Company Guaranty, dated as of October 5, 2000, by
NSC, (c) the Guarantee, dated as of October 5, 2000, by CVS Limited and CVS
Holdings Ltd., (d) the ▇▇▇▇▇▇▇ Holding, Inc. Guaranty, dated as of September 27,
2002, by BHI, (e) the CVS, Inc. Guaranty, (f) the CVS Holdings, Inc. Guaranty,
(g) the Composite Guarantee and Debenture, dated March 12, 2001, by ▇▇▇▇▇▇▇
International, (h) the Guarantee, dated March 12, 2001, by ▇▇▇▇▇▇▇ Ltd., KAB
Seating and A.J.W. Holdings Limited, and (i) each guaranty delivered by a
Subsidiary pursuant to Section 7.14, in each case in favor of Bank of America,
on behalf of itself, the Issuers and the Lenders, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Hazardous Materials" means all those substances that are regulated by, or
which may form the basis of liability or a standard of conduct under, any
Environmental Law, including any substance identified under any Environmental
Law based upon their harmful or deleterious properties as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or
petroleum-derived substance or waste.
"Hedge Agreement" means the ISDA Master Agreement, dated as of April 6,
2001 between the Hedge Counterparty and the Company, together with each of the
related schedules and confirmations, if any, as amended, modified or
supplemented from time to time.
16
"Hedge Counterparty" means Bank One, NA (f/k/a Bank One, Michigan).
"Hidden Creek" means Hidden Creek Industries, a New York general
partnership.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables and accrued expenses entered into or incurred in the ordinary course of
business on ordinary terms); (c) all Contingent Obligations with respect to
Surety Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession or
sale of such property); (f) all principal and interest obligations (classified
as a liability on such Person's balance sheet) with respect to Capitalized
Leases; (g) the principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP; (h) all indebtedness referred to in
clauses (a) through (g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness; and (i) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (h) above. For all purposes of this Agreement, the Indebtedness of any
Person shall include all recourse Indebtedness then outstanding of any
partnership or joint venture or limited liability company in which such Person
is a general partner or a joint venturer or a member and as to which such Person
is or may become directly liable.
"Indemnified Liabilities" has the meaning specified in Section 11.05.
"Indemnified Person" has the meaning specified in Section 11.05.
"Independent Auditor" has the meaning specified in subsection 7.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any case,
application, petition, notice, action or proceeding with respect to such Person
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
administration, winding-up or relief of debtors or for the appointment of a
trustee, receiver, administrator, administrative receiver or similar officer to
take possession of or to be appointed over, or an encumbrancer taking possession
of, the whole or substantially the whole of that Person's undertaking, property
or assets in connection with any such case, action or proceeding, (b) any
general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each case, undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy Code, or the
Insolvency ▇▇▇ ▇▇▇▇ (United
17
Kingdom) or (c) the convening of a meeting for the purpose of the passing of a
resolution for the winding up of that Person in accordance with the ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇▇) except for the purpose of a solvent amalgamation or
reconstruction on a basis where the resulting entity assumes all of the
obligations of that person under this Agreement.
"Interest Payment Date" means, as to any Offshore Rate Loan, the last day
of each Interest Period applicable to such Loan and, as to any Base Rate Loan,
the last Business Day of each calendar quarter; provided, that if any Interest
Period for an Offshore Rate Loan exceeds three months, the date that falls three
months after the beginning of such Interest Period and after each Interest
Payment Date thereafter is also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Offshore Rate Loan,
and ending on the date one, two or three months thereafter (or, with the consent
of all Lenders making or continuing such Loan, a date six months thereafter), as
selected by the applicable Borrower or Borrower Representative in its Notice of
Borrowing or Notice of Conversion/Continuation;
provided that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;
(b) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period;
(c) no Interest Period for any Term Loan shall extend beyond
the final scheduled maturity date of such Term Loan, and no Interest
Period for any Revolving Loan shall extend beyond the Revolving Loan
Termination Date; and
(d) no Interest Period applicable to a Term Loan or portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of the Term Loans unless the aggregate
principal amount of Term Loans represented by Base Rate Loans, or by
Offshore Rate Loans having Interest Periods that will expire on or
before such date, equals or exceeds the amount of such principal
payment.
"Investments" has the meaning specified in Section 8.04. The amount of any
Investment by any Person on any date of determination shall be the sum of the
acquisition price of the assets acquired by such Person (including the amount of
any Funded Indebtedness assumed in connection with the acquisition by such
Person to the extent such Funded Indebtedness would be reflected on a balance
sheet prepared in accordance with GAAP) plus all additional capital
contributions or purchase price paid in respect thereof, without any adjustments
for increases or
18
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment minus the amount of all cash returns of principal or capital thereon,
cash dividends thereon and other cash returns on investment thereon or
liabilities expressly assumed by another Person (other than the Company or
another Subsidiary of Company) in connection with the sale of such Investment.
Whenever the term "outstanding" is used in this Agreement with reference to an
Investment, it shall take into account the matters referred to in the preceding
sentence.
"IRS" means the Internal Revenue Service of the United States, and any
Governmental Authority succeeding to any of its principal functions under the
Code.
"Issuance Date" has the meaning specified in subsection 3.01(a).
"Issue" means, with respect to any Letter of Credit, to issue or to extend
the expiry of, or to renew or increase the amount of, such Letter of Credit; and
the terms "Issued," "Issuing" and "Issuance" have corresponding meanings.
"Issuer" means (i) in respect of each Letter of Credit (other than the
Existing Fleet Letter of Credit), Bank of America in its capacity as issuer of
the Letters of Credit hereunder (it being understood and agreed that Bank of
America's branch in London, England is not permitted to issue commercial letters
of credit) and (ii) in respect of the Existing Fleet Letter of Credit, Fleet
National Bank, and in each case together with any replacement letter of credit
issuer appointed under subsection 10.01(b) or Section 10.09.
"Joint Venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Company or its Subsidiaries with another Person in order
to conduct a common venture or enterprise with such Person.
"Judgment Currency" has the meaning specified in Section 11.18.
"J2R" means J2R Partners VII, a Delaware general partnership.
"KAB Seating" has the meaning specified in the preamble of this Agreement.
"L/C Advance" means each Lender's participation in any L/C Borrowing in
accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall at any
time be in use at the applicable Issuer, as the Issuer shall request.
"L/C Application" means an application form for issuances of standby or
commercial documentary letters of credit as shall at any time be in use at the
applicable Issuer, as such Issuer shall request.
19
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date when
made nor converted into a Borrowing of Loans under Section 3.03(d).
"L/C Commitment" means, at any time, the commitment of the Issuers to
Issue, and the commitment of the Lenders severally to participate in, Letters of
Credit from time to time Issued or outstanding under Article III, in an
aggregate amount not to exceed the lesser of the Aggregate Revolving Loan
Commitment and the Borrowing Base at such time less the aggregate Effective
Amount of Revolving Loans and L/C Obligations then outstanding; provided that
the L/C Commitment is a part of the Aggregate Revolving Loan Commitment, rather
than a separate, independent commitment.
"L/C Obligations" means at any time, without duplication, the sum of (a)
the aggregate undrawn amount of all Letters of Credit (other than that portion
of the Letters of Credit supported by the NSC Term Loan Commitment and the
Sterling Term Loan Commitment) then outstanding, plus (b) the amount of all
outstanding L/C Advances (other than in the form of a Term Loan) or other
unreimbursed drawings under all Letters of Credit (other than that portion of
the Letters of Credit supported by the NSC Term Loan Commitment and the Sterling
Term Loan Commitment) including all outstanding L/C Borrowings (other than L/C
Borrowings made as a result of drawings on the NSC Term Loan Commitment or the
Sterling Term Loan Commitment).
"L/C-Related Documents" means the Letters of Credit, the L/C Applications,
the L/C Amendment Applications, the Loan Note Instrument and any other document
relating to any Letter of Credit, including any standard form documents used by
any Issuer for letter of credit issuances.
"Lender" has the meaning specified in the introductory clause hereto.
References to the "Lenders" shall include Bank of America, including in its
capacity as Issuer and Swing Line Lender, and for purposes of clarification
only, to the extent that Bank of America may have any rights or obligations in
addition to those of the Lenders due to its status as Issuer or Swing Line
Lender, respectively, its status as such will be specifically referenced.
"Lending Office" means, as to any Lender, the office or offices of such
Lender specified as its "Domestic Lending Office" or "Offshore Lending Office,"
as the case may be, on Schedule 11.02, or such other office or offices as such
Lender may from time to time notify the Borrower Representative and the
Administrative Agent.
"Lending Party" means any Lender, Swing Lender or any Issuer, as the case
may be.
"Letters of Credit" means, collectively, the Loan Note Credit Support, the
Existing Letters of Credit, any letter of credit issued by an Issuer, and any
amendments thereto or replacements thereof, pursuant to Article III.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other), trust or flawed asset arrangement (for the purpose of, or
having the effect of, granting a security interest) or similar interest of any
kind or nature whatsoever in respect of any property (including those
20
created by, arising under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a capital lease, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Lender to a Borrower under
Article II or Article III in the form of a Revolving Loan, an NSC Term Loan, an
Existing Term Loan, a Sterling Term Loan, a Swing Line Loan or an L/C Borrowing.
"Loan Documents" means this Agreement, the Fee Letter, the L/C-Related
Documents, the Collateral Documents and all other documents delivered to the
Administrative Agent, the Collateral Agent or any Lender in connection herewith
but not including any other Transaction Document.
"Loan Note Credit Support" has the meaning specified in Section
3.01(a)(ii).
"Loan Note Instrument" means that certain Deed constituting Floating Rate
Unsecured Guaranteed Loan Notes, dated October 5, 2000, executed by Commercial
Vehicle Systems Limited regarding the issuance of the Loan Notes and the Loan
Note Credit Support relating thereto.
"Loan Notes" means, collectively, the Loan Notes issued by the Company as
constituted by the Loan Note Instrument and payable to certain former
shareholders of ▇▇▇▇▇▇▇ International.
"Loan Notes Payment Date" means any Business Day on which a holder of a
Loan Note may demand a payment of principal on such Loan Note pursuant to the
terms of the Loan Notes and the Loan Notes Instrument.
"Loan Party" means the Borrowers and each Guarantor.
"Management Agreement" has the meaning specified in Section 8.06(d).
"Margin Stock" means "margin stock" as such term is defined in Regulation
U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties or condition
(financial or otherwise) of BHI and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of BHI and its Subsidiaries taken as a whole
to perform any material obligation under any Loan Document and to avoid any
Event of Default; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the applicable Loan Party of any Loan
Document.
"Merger" has the meaning specified in the sixth paragraph of this
Agreement.
21
"Merger Documents" means the Agreement and Plan of Merger, dated as of the
date hereof, by and between BHI, CVS Holdings, Inc. and CVS Merger Co., a
Delaware corporation.
"Merging Subsidiary" has the meaning specified in the sixth paragraph of
this Agreement.
"Minimum Amount" means with respect to each of the following actions, the
minimum amount and any multiples in excess thereof set forth opposite such
action:
MULTIPLES IN EXCESS
TYPE OF ACTION MINIMUM AMOUNT THEREOF
-------------------------------- ---------------------------------- ----------------------------------
Borrowing of, prepayment of, or $ 500,000 $ 100,000
conversion into, Base Rate Loans
Borrowing of, prepayment of, $ 500,000 $ 100,000
continuation of, or Conversion
into, Dollar-denominated
Offshore Rate Loans
Borrowing of, prepayment of, Lesser of (a) Equivalent Amount of Lesser of (a) Equivalent Amount of
Continuation of, or Conversion $500,000 and (b) 500,000 units of $100,000 and (b) 100,000 units, of
into, Offshore Currency Loans Offshore Currency Offshore Currency
Borrowing of Swing Line Loans $250,000 for Dollar denominated $100,000 or 100,000 units of
Swing Line Loans or 250,000 units Offshore Currency
of Offshore Currency
Letter of Credit $100,000 or for Letters of Credit None
denominated in Offshore Currency,
the lesser of (a) Equivalent Amount
of $100,000 and (b) 100,000 units
of Offshore Currency
Reduction in Commitments $ 1,000,000 $ 250,000
Assignments $ 1,000,000 None
;provided, that a Borrowing of a Sterling Term Loan may be requested in an
amount lower than the Minimum Amount specified above in connection with the
repayment of Loan Notes by the Company after the Closing Date.
"Mortgage" means any deed of trust, mortgage, leasehold mortgage,
assignment of rents or other document creating a Lien on real property or any
interest in real property.
"Mortgaged Property" means all property subject to a Lien pursuant to a
Mortgage.
22
"Multiemployer Plan" means a "multiemployer plan," within the meaning of
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes,
is making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
"Net Income" and "Net Loss" mean, respectively, with respect to any
period, the aggregate of the net income (loss) of the Person in question for
such period, determined in accordance with GAAP on a consolidated basis;
provided that (i) the net income (loss) of any Person which is not a
consolidated Subsidiary shall be included only to the extent of the amount of
cash dividends or distributions paid to the Person in question or to a
consolidated Subsidiary of such Person and (ii) the net income (loss) of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition shall be excluded.
"Net Proceeds" means (a) with respect to any Asset Disposition, the sum of
cash or readily marketable cash equivalents received (including by way of a cash
generating sale or discounting of a note or receivable, but excluding any other
consideration received in the form of assumption by the acquiring Person of debt
or other obligations relating to the properties or assets so disposed of or
received in any other non-cash form) therefrom, whether at the time of such
disposition or subsequent thereto (but, in the case of amounts received
subsequent thereto, excluding interest on such amounts), or (b) with respect to
any sale or issuance of equity or debt securities of BHI or any Subsidiary, cash
or readily marketable cash equivalents received (but excluding any other
non-cash form) therefrom, whether at the time of such disposition, sale or
issuance or subsequent thereto, net (subject to reserves for normal course
post-closing adjustments and reserves for indemnification obligations and
retained liabilities in connection with such transaction and without
duplication), in either case, of all legal, title, recording and any other tax
expenses, commissions and other fees and all costs and expenses incurred and all
federal, state, local and other taxes required to be accrued as a liability as a
consequence of such transactions and, in the case of an Asset Disposition, net
of all payments made by BHI or any of its respective Subsidiaries on any
Indebtedness which is secured by such assets pursuant to a Permitted Lien upon
or with respect to such assets or which must by the terms of such Lien, or in
order to obtain a necessary consent to such Asset Disposition, or by applicable
law be repaid out of the proceeds from such Asset Disposition.
"Net Worth" means the stockholders equity of BHI as determined in
accordance with GAAP, less (without duplication) the outstanding principal
amount of loans to officers, directors, and employees of BHI and its
Subsidiaries to purchase Capital Stock of BHI, but excluding (a) gains and
losses with respect to foreign exchange and/or interest rate protection
adjustments reflected in the consolidated balance sheet of BHI, (b) previously
capitalized costs and expenses related to the incurrence of indebtedness and
costs and expenses related to the execution and delivery of this Agreement, not
to exceed $3,250,000 in the aggregate and (c) adjustments with respect to
goodwill made in accordance with Financial Accounting Standard 142.
"Non-Surety L/Cs" means letters of credit which are not Surety L/Cs.
"Non-U.S. Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by BHI or any one or more of its
Subsidiaries primarily for the benefit of
23
employees of BHI or such Subsidiaries residing outside the United States of
America, which plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.
"Non-U.S. Subsidiary" means each Subsidiary of BHI that is not a U.S.
Subsidiary.
"Notice of Borrowing" means a notice in substantially the form of Exhibit
A.
"Notice of Conversion/Continuation" means a notice in substantially the
form of Exhibit B hereof.
"NSC" has the meaning specified in the preamble of this Agreement.
"NSC Term Loan" has the meaning specified in Section 2.01(a)(i).
"NSC Term Loan Commitment" means as to each Lender, such Lender's NSC Term
Loan Commitment, as specified in Schedule 2.01, as the same may be adjusted from
time to time pursuant to the terms of this Agreement.
"Obligations" means all advances, moneys, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by any Loan Party to
any Lending Party, the Administrative Agent, the Collateral Agent or any
Indemnified Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising; provided, that for purposes of the Collateral Documents, the
term "Obligations" shall include the debts, liabilities, obligations, covenants
and duties of the Company owing to the Hedge Counterparty pursuant to the Hedge
Agreement.
"OECD" has the meaning specified in the definition of "Eligible Assignee."
"Offshore Currency" means, at any time, Sterling, Euros or such other
currency as is acceptable to the Administrative Agent and the Lenders in
accordance with Section 2.16(e).
"Offshore Currency Domestic Rate" means, with respect to any amount in an
Offshore Currency, for any day, the rate of interest per annum equal to the sum
of (a) the higher of (i) the rate of interest per annum at which overnight
deposits in the applicable Offshore Currency, in an amount approximately equal
to the amount with respect to which such rate is being determined, would be
offered for such day by Bank of America's local branch to major banks in the
local market or other applicable offshore interbank market, and (ii) the cost of
funds to Bank of America's local branch with respect to such amount for such
day, expressed as a rate of interest per annum plus (b) 50 basis points.
"Offshore Currency Loan" means any Loan that is denominated in an Offshore
Currency.
"Offshore Rate" means for any Interest Period with respect to any Offshore
Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any
24
successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in the Applicable Currency (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period,
(b) if the rate referenced in the preceding clause (a) is not
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the Applicable Currency (for delivery on
the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in the Applicable Currency
for delivery on the first day of such Interest Period in same day funds in
the approximate amount of the Offshore Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest
Period would be offered by Bank of America's London Branch to major banks
in the London interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first
day of such Interest Period.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"Onex" means Onex Corporation, an Ontario corporation.
"Operating Lease" of any Person, means any lease (including, without
limitation, leases which may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) by such Person, as lessee, which is
not a Capitalized Lease.
"Original U.K. Credit Agreement" has the meaning specified in the second
paragraph of this Agreement.
"Original U.S. Credit Agreement" has the meaning specified in the third
paragraph of this Agreement.
"Organization Documents" means (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, any shareholder rights agreement; (b) with respect to any
limited liability company, the articles of formation, certificate of
incorporation, memorandum and articles of association and/or operating
agreement; and (c) with respect to any partnership, joint venture or other form
of business entity, the partnership agreement and any agreement governing the
rights of the holders of its capital stock, filing or notice with respect
thereto filed with the secretary of state of the state of its formation or other
Governmental Authority in the jurisdiction of its organization, in each case as
amended from time to time.
25
"Other Taxes" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents but excluding franchise taxes and any such
taxes imposed on the net income of any Lender.
"Outstanding Indebtedness" has the meaning specified in the definition of
"Total Leverage Ratio."
"Participant" has the meaning specified in subsection 11.08(d).
"Participating Member State" means any member state of the European Union
that has elected the Euro as its lawful currency.
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA, other than a Multiemployer Plan, which the Company
or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or
is obligated to make contributions, or otherwise has any liability, or in the
case of a multiple employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preceding five (5) plan
years.
"Permitted Acquisitions" means any Acquisition by BHI or any of its
Subsidiaries which complies with each of the following: (i) such Person is
engaged in substantially the same, similar or supportive line of business as one
or more businesses of BHI or any of its Subsidiaries, (ii) the prior, effective
written consent to, or approval of, such Acquisition by the board of directors
or shareholders or equivalent governing body of the acquiree is obtained, (iii)
after giving effect to the proposed Acquisition on a Pro Forma Basis for the
period of four fiscal quarters of BHI ending with the fiscal quarter for which
financial statements have most recently been delivered (or were required to be
delivered) under Section 7.01, BHI is in compliance with the financial covenants
set forth in Sections 8.14, 8.15 and 8.16, and BHI shall deliver a certificate
setting forth in reasonable detail the basis for calculation of such financial
covenants; (iv) immediately after giving effect to the proposed Permitted
Acquisition, the Borrowers would be able to borrow at least $2,500,000 of Loan
proceeds, and, the Borrowers reasonably project that within 30 days after
consummation of the proposed Permitted Acquisition, it will be able to borrow at
least $5,000,000 of Loan proceeds; (v) BHI shall give the Administrative Agent
and the Lenders not less than ten (10) Business Days prior written notice of its
intention to make a Permitted Acquisition, such notice to include the proposed
amounts, date and form of the proposed transaction, a reasonable description of
the stock or assets to be acquired and the location of all assets, a description
and calculation in reasonable detail of the effect on a Pro Forma Basis of such
Acquisition on the financial covenants contained in Sections 8.14, 8.15 and
8.16, two years of audited financial statements of the Person to be acquired (or
financial statements otherwise acceptable to the Administrative Agent in its
reasonable discretion), (vi) the prior, effective written consent to, or
approval of, such Acquisition by the Required Lenders shall have been obtained,
(vii) concurrently with the making of a Permitted Acquisition, BHI or the
applicable
26
Subsidiary of BHI (other than a Foreign 956 Subsidiary) shall, as additional
collateral security for the Obligations, grant to the Collateral Agent for the
benefit of the Administrative Agent, the Issuers and the Lenders, first priority
perfected Liens (subject to Liens permitted pursuant to Section 8.01) on and
security interests in any of the acquired assets by the execution and delivery
to the Collateral Agent of such agreements, instruments and documents as shall
be reasonably satisfactory in form and substance to the Collateral Agent (it
being understood and agreed that only 65% of the Capital Stock of a first-tier
Foreign 956 Subsidiary shall be required to be pledged pursuant to any
Collateral Document), and (viii) neither BHI nor any Subsidiary shall make any
Permitted Acquisition at any time during which a Default or an Event of Default
shall exist and be continuing or would exist after giving effect to such
Permitted Acquisition.
"Permitted Cost Savings" means, with respect to the determination of Net
Income on a Pro Forma Basis, such cost savings as would be permitted pursuant to
Rule 11.02 of Regulation S-X; provided that, prior to the consummation of any
Permitted Acquisition, the Company's certified public accountants shall certify
to the Administrative Agent (in a manner consistent with example d of SAS 72)
that such pro forma financial information complies as to form in all material
respects with the applicable accounting requirements of Rule 11.02 of Regulation
S-X.
"Permitted Earn-Out Debt" shall mean Indebtedness of BHI or any of its
Subsidiaries incurred in connection with a Permitted Acquisition, which
Indebtedness is not secured by any assets of BHI or any of its Subsidiaries
(including without limitation the assets so acquired) and is only payable by BHI
or such Subsidiary (x) in the event certain future performance goals are
achieved with respect to the assets acquired, (y) if no Default or Event of
Default shall exist at the time of, or as a result of, any such payment and (z)
a certificate executed by a Responsible Officer of BHI has been delivered to the
Administrative Agent demonstrating compliance, on a Pro Forma Basis, with the
financial covenants contained in Sections 8.14, 8.15 and 8.16 immediately after
giving effect to any such payment; provided that such Indebtedness shall only
constitute Permitted Earn-Out Debt to the extent the terms of such Indebtedness
expressly limit the maximum potential liability of BHI or such Subsidiary with
respect thereto.
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of BHI or any Subsidiary existing or arising under Swap Contracts,
provided that each of the following criteria is satisfied: (a) such obligations
are (or were) entered into by such Person for the purpose of directly mitigating
risks associated with liabilities, commitments or assets held or reasonably
anticipated to be held by such Person, or changes in the value of securities
issued by such Person in conjunction with a securities repurchase program not
otherwise prohibited hereunder, and not for purposes of speculation or taking a
"market view"; and (b) such Swap Contracts do not contain any provision
("walk-away" provision) exonerating the non-defaulting party from its obligation
to make payments on outstanding transactions to the defaulting party.
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
27
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) covered by ERISA which BHI or any ERISA Affiliate sponsors or maintains
or to which BHI or any ERISA Affiliate makes, is making, or is obligated to make
contributions or otherwise has any liability and includes any Pension Plan.
"Pledge Agreements" means, collectively, (a) the Holdings Pledge
Agreement, dated as of March 31, 2000, executed by CVS Holdings, Inc. regarding
the shares of CVS, Inc., (b) the Pledge Agreement, dated as of October 5, 2000,
executed by NSC regarding the shares of its Subsidiaries, (c) the Mortgage Over
Securities, dated October 5, 2000, executed by CVS Holdings Ltd., regarding the
shares of the Company, (d) the Mortgage Over Securities, dated October 5, 2000,
executed by the Company, regarding the shares of ▇▇▇▇▇▇▇ Ltd., (e) the Mortgage
Over Securities, dated March 12, 2001, executed by ▇▇▇▇▇▇▇ Ltd. and A.J.W.
Holdings Limited, regarding the shares of the Company, (f) the Mortgage over
Securities, dated the Closing Date, executed by ▇▇▇▇▇▇▇ Ltd., regarding the
shares of KAB Seating and ▇▇▇▇▇▇▇ International, (g) each pledge agreement
delivered by a Subsidiary of BHI in favor of the Administrative Agent and (h)
each pledge agreement delivered by a Subsidiary of BHI pursuant to Section 7.14,
in each case pledging the stock of all or certain of their respective
Subsidiaries to the extent provided therein to the Collateral Agent, for the
benefit of the Administrative Agent, the Issuers and the Lenders, as the same
may be amended, supplemented, restated or otherwise modified from time to time.
"Pledged Collateral" has the meaning specified in the Pledge Agreements.
"Pro Forma Basis" means, for purposes of the tests set forth in the
definition of Permitted Acquisitions and in the permitted adjustment to EBITDA
and Rental Obligations, a pro forma on the basis that (a) any Indebtedness
incurred or assumed in connection with the Merger or such Permitted Acquisition
was incurred or assumed on the first day of the applicable period, (b) if such
Indebtedness bears a floating interest rate, such interest shall be paid over
the pro forma period at the rate in effect on the Closing Date or the date of
such Permitted Acquisition, as the case may be, and (c) all income and expense
associated with the assets or entity acquired in connection with the Merger or
such Permitted Acquisition for the most recently ended four fiscal quarter
period for which such income and expense amounts are available shall be treated
as being earned or incurred by BHI over the applicable period on a pro forma
basis without giving effect to any cost savings other than Permitted Cost
Savings.
"Pro Rata Share" means, as to any Lender, (a) in respect of a particular
Loan and/or Commitment, (i) at any time at which the Commitments in respect of
such Loan remain outstanding, the percentage equivalent (expressed as a decimal,
rounded to the ninth decimal place) at such time of such Lender's Commitment in
respect of such Loan divided by the aggregate Commitments in respect of such
Loan, and (ii) after the termination of the Commitments in respect of such Loan,
the percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of the Effective Amount of such Loans held by such Lender
divided by the Effective Amount of such Loans held by all Lenders, and (b) in
respect of all Loans and/or Commitments, (i) at any time at which the Aggregate
Commitment (or any portion thereof) remains outstanding, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of (x) the sum of such Lender's (A) outstanding Existing Dollar Term Loans,
(B) the Equivalent Amount of outstanding Existing Sterling Term
28
Loans, (C) the Equivalent Amount of outstanding Sterling Term Loans, (D) the
Equivalent Amount of undrawn Sterling Term Loan Commitment, (E) outstanding NSC
Term Loans, (F) undrawn NSC Term Loan Commitment and (G) Revolving Loan
Commitment, divided by (y) the sum of (A) the outstanding Existing Dollar Term
Loans of all Lenders, (B) the Equivalent Amount of the outstanding Existing
Sterling Term Loans of all Lenders, (C) the Equivalent Amount of the outstanding
Sterling Term Loans of all the Lenders, (D) the Equivalent Amount of the undrawn
Aggregate Sterling Term Loan Commitment, (E) the outstanding NSC Term Loans of
all the Lenders, (F) the undrawn Aggregate NSC Term Loan Commitment and (G) the
Aggregate Revolving Loan Commitment, and (ii) after the termination of the
Aggregate Commitment, the percentage equivalent (expressed as a decimal, rounded
to the ninth decimal place) at such time of the Effective Amount of such
Lender's outstanding Loans (including such Lender's ratable share of the
Effective Amount of L/C Obligations) divided by the Effective Amount of the
outstanding Loans and L/C Obligations of all of the Lenders.
"Quoted Rate" means the interest rate as may be agreed upon from time to
time by the Company and the Swing Line Lender.
"Reaffirmation Agreement" means the Reaffirmation and Amending Agreement,
dated as of the Closing Date, among NSC, CVS, Inc., BHI and CVS Holdings, Inc.
"Related Parties" means, with respect to any Person, (i) any controlling
stockholder of such Person, (ii) any Subsidiary of such Person more than 50% of
which is owned by such Person; (iii) any trust, corporation, partnership or
other entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially holding more than a 50% controlling interest of which consist of
other Persons referred to in the immediately preceding clauses (i) or (ii), and
(iv) any employees, officers and directors of such Person or any of the
foregoing.
"Rental Obligations" means, for any period, the aggregate fixed amount
payable by BHI or any of its Subsidiaries under any lease (or other agreement
conveying the right to use) of any real or personal property by BHI or any of
its Subsidiaries, as lessee, other than a Capitalized Lease; provided, however,
that for any four quarter period which commences prior to the effective date of
the Merger (the "Calculation Period"), Rental Obligations for the period
commencing from the start of such four quarter period to, but not including, the
Merger (the "Pre-Merger Period") shall be an amount equal to (x) Rental
Obligations for CVS Holding, Inc. and its Subsidiaries for the Pre-Merger Period
plus (y) Rental Obligations for BHI and its Subsidiaries (other than CVS
Holdings, Inc. and its Subsidiaries) for the Pre-Merger Period (it being
understood that for the remainder of any Calculation Period, Rental Obligations
shall be calculated as set forth prior to this proviso); provided further, that
"Rental Obligations" shall be calculated after giving effect on a Pro Forma
Basis to any Permitted Acquisition as if such Permitted Acquisition occurred on
the first day of the applicable period.
"Reportable Event" means, any of the events set forth in Section 4043(c)
of ERISA, other than any such event for which the 30-day notice requirement
under ERISA has been waived in regulations issued by the PBGC.
"Required Lenders" means at any time Lenders then holding more than
66 2/3% of the sum of (i) the outstanding Existing Dollar Term Loans, (ii) the
Equivalent Amount of the outstanding
29
Existing Sterling Term Loans, (iii) the outstanding NSC Term Loans, (iv) the
undrawn NSC Term Loan Commitment, (v) the Equivalent Amount of the outstanding
Sterling Term Loans, (vi) Equivalent Amount of the undrawn Sterling Term Loan
Commitment, and (vii) the amount of the Aggregate Revolving Loan Commitment (or
if the Revolving Loan Commitment has been terminated, then the aggregate
principal amount outstanding of Revolving Loans and Swing Line Loans, plus the
outstanding amount of L/C Obligations); provided, that if no principal amount of
any Loan is then outstanding, "Required Lenders" shall mean Lenders then having
more than 66 2/3% of the Aggregate Commitment.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Requisite Time" means, with respect to any of the actions listed below,
the time and date set forth below opposite such action (unless otherwise noted,
all times are Charlotte, North Carolina time (standard or daylight)):
TYPE OF ACTION TIME* DATE OF ACTION
------------------------------------ ----------- ----------------------------
Delivery of Request for Extension of
Credit for, or notice for:
Borrowing of, prepayment of, 11:00 a.m. Same date as such Borrowing,
Conversion into, Base Rate Loans or prepayment or Conversion
Loans maintained at the Offshore
Currency Domestic Rate
Borrowing of, prepayment of, 11:00 a.m. 3 Business Days prior to such
Continuation of, or Conversion into, borrowing, prepayment,
Dollar-denominated Offshore Rate Continuation or Conversion
Loans maintained at the Offshore Rate
Borrowing of, prepayment of, 11:00 a.m. 4 Business Days prior to such
Continuation of, or Conversion into, Borrowing, prepayment,
Offshore Currency Loans Continuation or Conversion
Requests for new Offshore Currencies 11:00 a.m. 10 Business Days prior to
proposed Borrowing
Borrowing of Swing Line Loans in 2:30 p.m. Same date as such Borrowing
Dollars
Borrowing of Swing Line Loans in a 11:00 a.m. Same date as such Borrowing
currency other than Dollars
Prepayment of Swing Line Loans 3:00 p.m. Same date as such prepayment
Letter of Credit action 10:00 a.m. 2 Business Days prior to such
action
Payments by Lenders or Borrower to 11:00 a.m. On date payment is due
Administrative Agent
30
With respect to the time by which any action referred to in the above
table must be preformed regarding any Borrowing utilizing a Non-U.S. branch of a
Lender, such time shall be the local time of such Non-U.S. branch.
"Responsible Officer" means the chief executive officer, the president,
the chief financial officer, the treasurer or the corporate controller of a
Person (and in the case of any U.K. Subsidiary, any director of such U.K.
Subsidiary assuming such, or similar, responsibilities), or any other officer
having substantially the same authority and responsibility.
"Restricted Payments" has the meaning specified in Section 8.09.
"Revolving Lenders" shall mean any Lender having a Revolving Loan.
"Revolving Loan Commitment" as to each Revolving Lender has the meaning
specified in subsection 2.01(e).
"Revolving Loans" has the meaning specified in subsection 2.01(e).
"Revolving Loan Termination Date" means the earlier to occur of
(a) January 2, 2006; and
(b) such earlier date on which the Aggregate Revolving Loan
Commitment terminates in accordance with the provisions of this Agreement.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Offshore Currency, same day or other funds as may be reasonably
determined by the Administrative Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in the relevant Offshore Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Agreements" means, collectively, each security agreement
delivered by BHI or any Subsidiary of BHI, in each case granting a security
interest in all of such Person's personal property to the extent provided
therein to the Administrative Agent or the Collateral Agent, for the benefit of
itself, the Issuers and the Lenders, as the same may be amended, supplemented or
otherwise modified from time to time and each reaffirmation or confirmation
thereof, including the Reaffirmation Agreement and the Deed of Confirmation.
"Solvent" means (A) as to any Person (other than as set forth in clause
(B) below), at any time, that (a) the fair value of the property of such Person
(on a going concern basis) is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated
31
liabilities (without duplication of any underlying liability related thereto))
as such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the New
York Uniform Fraudulent Transfer Act; (b) the present fair saleable value of the
property of such Person (on a going concern basis) is not less than the amount
that will be required to pay the probable liability of such Person on its debts
as they become absolute and matured; (c) such Person is able to realize upon its
property and pay its debts and other liabilities (including disputed, contingent
and unliquidated liabilities (without duplication of any underlying liability
related thereto), but applying the reasonably anticipated liability, after
giving effect to payments under insurance policies and indemnity agreements
which such Person reasonably expects to receive) as they mature in the normal
course of business; (d) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature; and (e) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital; and (B) for any Person incorporated in England and Wales, on a
particular date, on that date such Person has the ability to pay its debts as
and when they fall due and could not be deemed to be unable to pay its debts as
interpreted in accordance with Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ of the
United Kingdom. "Solvency" shall have a correlative meaning.
"Spot Rate" for a currency means the rate quoted (expressed as a decimal,
rounded to the fourth decimal place) to the Administrative Agent as the spot
rate for the purchase of such currency with another currency through the FX
Trading Office at approximately 10:00 a.m. (Charlotte, North Carolina time) on
the date two Business Days prior to the date as of which the foreign exchange
settlement is made.
"Stated Amount" means the stated or face amount of a Letter of Credit to
the extent available at the time for drawing (subject to presentment of all
requested documents), as the same may be increased or decreased from time to
time in accordance with the terms of such Letter of Credit.
"Sterling" and "(pound)" means the lawful currency of the United Kingdom.
"Sterling Term Loan" has the meaning specified in subsection 2.01(d).
"Sterling Term Loan Commitment" means, as to each Lender, such Lender's
Term Loan Commitment, as specified on Schedule 2.01, as the same may be adjusted
from time to time pursuant to the terms of this Agreement.
"Subsidiary" means (A) with respect to any Person, any corporation,
association, partnership, limited liability company, joint venture or other
business entity of which more than 50% of the Voting Equity, membership
interests or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by such Person, or
one or more of the Subsidiaries of the Person, or a combination thereof and (B)
with respect to any Person incorporated in England and Wales, a subsidiary
within the meaning of Section 736 of the Companies Act and, unless the context
otherwise requires, a subsidiary undertaking within the meaning of Section 258
of the Companies Act. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of BHI.
32
"Subsidiary Guarantor" means, collectively, each Subsidiary of BHI that is
a Guarantor on the Closing Date and, to the extent required pursuant to Section
7.14, each Subsidiary of BHI that becomes a Guarantor after the Closing Date;
provided that the term Subsidiary Guarantor shall not include KAB Seating, Pty,
a company organized under the laws of Australia, KAB Seating, S.A., a company
organized under the laws of Belgium, or KAB Seating, AB, a company organized
under the laws of Sweden.
"Surety Bonds" means all bonds issued for the account of the Company or
any of its Subsidiaries to assure the performance thereby (or to the extent
issued in the ordinary course of business, any other Person) under any contract
entered into in the ordinary course of business.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, performance
bonds, Surety Bonds, remarketing agreements and similar instruments.
"Surety L/Cs" means letters of credit which are issued for the account of
the Company or any of its Subsidiaries to provide credit support, in the
ordinary course of business, for (a) a contract bid by any such Person, (b) the
performance by any such Person under any contract, (c) any warranty extended by
any such Person and (d) the repayment of advance payments made to any such
Person.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, crosscurrency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, a "Master
Agreement"), including any such obligations or liabilities under any Master
Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined by the Company
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Swap Contracts (which may include any Lender).
33
"Swing Line Commitment Amount" has the meaning specified in Section
2.05(a).
"Swing Line Lender" means Bank of America, in its capacity as provider of
the Swing Line Loans.
"Swing Line Loan" has the meaning specified in Section 2.05(a).
"Swing Line Termination Date" means the earlier to occur of:
(a) the date which is the fifth Business Day prior to January 2, 2006;
and
(b) the date on which the Revolving Loan Commitment terminates in
accordance with the provisions of this Agreement.
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Lending Party
and the Administrative Agent, respectively, franchise taxes and taxes imposed on
or measured by its net income by the jurisdiction (or any political subdivision
thereof) under the laws of which such Lending Party or the Administrative Agent,
as the case may be, is organized or maintains a lending office.
"Term Loan" means an NSC Term Loan, an Existing Dollar Term Loan, an
Existing Sterling Term Loan or a Sterling Term Loan.
"Total Leverage Ratio" means, as of any date of determination, the ratio
of (a) without duplication, all Funded Indebtedness of BHI and its Subsidiaries
determined on a consolidated basis as of such date, less any cash subject to a
cash collateral account pursuant to the terms of this Agreement as of such date
(the "Outstanding Indebtedness"), to (b) EBITDA for the period of four fiscal
quarters ending on such date.
"Transaction" means (a) the Merger, and (b) the refinancing of certain
Indebtedness of the Company, CVS, Inc. and certain of their affiliates on the
Closing Date.
"Transaction Documents" means the Loan Documents and the Merger Documents.
"Treaty" means the Treaty establishing the European Economic Community,
being the Treaty of Rome of March 25, 1957 (as amended by the Single ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, the Maastricht Treaty (which was signed at Maastricht on February 7,
1992 and came into force on November 1, 1993), the Amsterdam Treaty (which was
signed at Amsterdam on October 2, 1997 and came into force on May 1, 1999) and
the Nice Treaty (which was signed on February 26, 2001)), each as amended from
time to time and as referred to in legislative measures of the European Union
for the introduction of, changeover to or operating of the Euro in one or more
member states.
"Type" means, with respect to Loans consisting of Revolving Loans or Term
Loans, the status of each such Loan as either a Base Rate Loan or an Offshore
Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in the State of
Illinois.
34
"U.K. Subsidiary" means any Subsidiary of BHI incorporated under the laws
of England and Wales.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
"United States" and "U.S." each means the United States of America.
"U.S. Guarantor" means any of BHI, CVS Holdings, Inc., CVS, Inc. and NSC,
and their respective successors and permitted assigns, and "U.S. Guarantors"
means, collectively, all such entities.
"U.S. Subsidiary" means any Subsidiary of BHI organized under the laws of
the United States or any state thereof.
"Voting Equity" of any Person as of any date means the Capital Stock of
such Person that is entitled to vote in the election of the board of directors
(or other governing body) of such Person.
"Wholly-Owned Subsidiary" of a Person means any corporation in which
(other than directors' qualifying shares required by law and/or other nominal
amounts of shares that are required by law to be held by Persons other than BHI
or its Wholly-Owned Subsidiaries, as applicable) 100% of the capital stock of
each class having ordinary voting power, and 100% of the capital stock of every
other class, in each case (or, in the case of Persons other than corporations,
membership interests or other equity interests), at the time as of which any
determination is being made, is owned, beneficially and of record, by such
Person, or by one or more of the other Wholly-Owned Subsidiaries, or both.
1.02 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof', "herein," "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(d) The term "including" is not limiting and means "including
without limitation."
(e) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding," and the word "through" means "to
and including."
35
(f) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(g) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, supplements and other
modifications thereto, but only to the extent such amendments, restatements,
supplements and other modifications are not prohibited by the terms of any Loan
Document, and (ii) references to any statute or regulation are to be construed
as including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation, whether
effective prior to or subsequent to the date hereof.
(h) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(i) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(j) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders, the Administrative
Agent or the Collateral Agent merely because of the Administrative Agent's, the
Collateral Agent's or Lenders' involvement in their preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied, but shall not give effect to purchase accounting
adjustments required or permitted by Accounting Principles Board 16 and
Financial Accounting Standard 142 or interpretations thereof.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of BHI and its Subsidiaries.
(c) In the event that any changes in GAAP occur after the date of
this Agreement and such changes result in a material variation in the method of
calculation of financial covenants or other terms of this Agreement, then the
Company, and the Required Lenders agree to negotiate in good faith to amend such
provisions of this Agreement so as to equitably reflect such changes so that the
criteria for evaluating the Company's financial condition will be the same after
such changes as if such changes had not occurred and compliance shall continue
to be determined without giving effect to any such change until such amendment
becomes effective pursuant to the terms of this Agreement.
36
1.04 Currency Equivalents Generally. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in any Offshore Currency or other currency of
an amount in Dollars, and the equivalent in Dollars of an amount in any Offshore
Currency or other currency, shall be determined as set forth in the definition
of Equivalent Amount.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments.
(a) NSC Term Loans. Each Lender severally agrees, on the terms and
conditions set forth in Article V, to make loans (each such loan, an "NSC Term
Loan") in Dollars to NSC from time to time on any Business Day during the period
from the Closing Date to the Revolving Loan Termination Date, in an aggregate
amount not to exceed such Lender's NSC Term Loan Commitment as set forth on
Schedule 2.01 (as such amount may be reduced pursuant to Section 2.08);
provided, that NSC Term Loans made after the Closing Date may only be requested
by, or on behalf of, NSC to settle a drawing under the Existing Fleet Letter of
Credit. Amounts borrowed as NSC Term Loans which are repaid or prepaid may not
be reborrowed.
(b) Existing Dollar Term Loans. Prior to the Closing Date term
loans denominated in Dollars were borrowed by certain of the Borrowers under the
Original U.S. Credit Agreement and the Original U.K. Credit Agreement (the
"Existing Dollar Term Loans") and, as of the Closing Date, such Existing Dollar
Term Loans remain outstanding in the amounts set forth on Schedule 2.01 annexed
hereto and made a part hereof. Each Loan Party, the Administrative Agent, each
Issuer and each of the Lenders hereby agree with respect to the Existing Dollar
Term Loans that, subject to Section 2.01(g), on the Closing Date, all such
Existing Dollar Terms Loans shall, for all purposes under this Agreement, be
deemed to be Loans outstanding hereunder to each Borrower as set forth in
Schedule 2.01 and the Borrowers shall be deemed to have made a Borrowing of
Loans hereunder in the amount of the Existing Dollar Term Loans. Such deemed
Borrowing shall, for all purposes, be treated as a Borrowing made hereunder on
the Closing Date and shall be governed by the terms and conditions of this
Agreement. Amounts borrowed as Existing Dollar Term Loans which are repaid or
prepaid may not be reborrowed.
(c) Existing Sterling Term Loans. Prior to the Closing Date term
loans denominated in Sterling were borrowed by certain of the Borrowers under
the Original U.S. Credit Agreement and the Original U.K. Credit Agreement (the
"Existing Sterling Term Loans" and, together with the Existing Dollar Term
Loans, the "Existing Term Loans") and, as of the Closing Date, such Existing
Sterling Term Loans remain outstanding in the amounts set forth on Schedule 2.01
annexed hereto and made a part hereof. Each Loan Party, the Administrative
Agent, each Issuer and each of the Lenders hereby agree with respect to the
Existing Sterling Term Loans that, subject to Section 2.01(g), on the Closing
Date, all such Existing Sterling Terms Loans shall, for all purposes under this
Agreement, be deemed to be Loans outstanding hereunder to each Borrower as set
forth in Schedule 2.01 and the Borrowers shall be deemed to
37
have made a Borrowing of Loans hereunder in the amount of the Existing Sterling
Term Loans. Such deemed Borrowing shall, for all purposes, be treated as a
Borrowing made hereunder on the Closing Date and shall be governed by the terms
and conditions of this Agreement. Amounts borrowed as Existing Sterling Term
Loans which are repaid or prepaid may not be reborrowed.
(d) Sterling Term Loans. Each Lender severally agrees, on the
terms and conditions set forth in Article V, to make loans (each such loan, a
"Sterling Term Loan") in Sterling to the Company from time to time on any
Business Day during the period from the Closing Date to the Revolving Loan
Termination Date, in an aggregate amount not to exceed such Lender's Sterling
Term Loan Commitment as set forth on Schedule 2.01 (as such amount may be
reduced pursuant to Section 2.08); provided, that Sterling Term Loans made after
the Closing Date shall only be requested by, or on behalf of, the Company to
repurchase Loan Notes or to settle a drawing under the Loan Note Credit Support.
Amounts borrowed as Sterling Term Loans which are repaid or prepaid may not be
reborrowed.
(e) Revolving Credit.
(i) Subject to Section 2.05, each Lender severally agrees, on the
terms and conditions set forth in Article V, to make loans to a Borrower (each
such loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Loan Termination Date, in an
aggregate amount not to exceed at any one time outstanding the amount set forth
on Schedule 2.01 (such amount, as the same may be reduced under Section 2.06 or
reduced or increased as a result of one or more assignments under Section 11.08,
the Revolving Lender's "Revolving Loan Commitment"); provided, however, that,
after giving effect to any Borrowing of Revolving Loans, the Effective Amount of
Revolving Loans, Swing Line Loans and L/C Obligations at such time shall not at
any time exceed an amount equal to the lesser of (a) the Aggregate Revolving
Loan Commitment at such time and (b) the Borrowing Base at such time; and
provided, further, that the Effective Amount of Revolving Loans of any Revolving
Lender, plus the participation of such Revolving Lender in the Effective Amount
of all L/C Obligations and such Revolving Lender's Pro Rata Share of the
Effective Amount of Swing Line Loans shall not at any time exceed the lesser of
(a) such Revolving Lender's Revolving Loan Commitment and (b) such Revolving
Lender's Pro Rata Share of the Borrowing Base at such time. Within the limits of
each Revolving Lender's Commitment, and subject to the other terms and
conditions hereof, each Borrower may borrow under this Section 2.01(e), prepay
under Section 2.07 and reborrow under this Section 2.01(e).
(ii) Prior to the Closing Date revolving loans were borrowed by
certain of the Borrowers under the Original U.S. Credit Agreement and the
Original U.K. Credit Agreement (the "Existing Revolving Loans") and, as of the
Closing Date, such Existing Revolving Loans remain outstanding in the amounts
set forth on Schedule 2.01 annexed hereto and made a part hereof. The Borrowers,
the Administrative Agent, each Issuer and each of the Lenders hereby agree with
respect to the Existing Revolving Loans that, notwithstanding Section
2.01(e)(i), on the Closing Date, all such Existing Revolving Loans shall, for
all purposes under this Agreement, be deemed to be Revolving Loans outstanding
hereunder and each of the Borrowers shall be deemed to have made a Borrowing
hereunder in the amount of the Existing Revolving Loans of such Borrower;
provided, that each proviso contained in Section 2.01(e)(i) shall be applicable
to such deemed Borrowing. Such deemed Borrowings shall, for all purposes, be
38
treated as Borrowings made hereunder on the Closing Date and shall be governed
by the terms and conditions of this Agreement.
(f) If, as a result of Section 2.01(b), 2.01(c) or 2.01(e)(ii), as
determined by the Administrative Agent, any Lender shall have funded (or been
deemed to have funded) less than its Pro Rata Share of any Loan, such Lender
shall purchase from the other Lenders, and such other Lenders shall sell to such
Lender, a portion of such Loans funded (or deemed funded) by such other Lenders
as shall be necessary to cause each Lender to have funded an amount of Loans
equal to its Pro Rata Share of all outstanding Loans. If any Lender shall incur
any expense or suffer any loss as a result of the purchase or sale of any Loan
or portion of a Loan on any day other than the last day of the Interest Period
applicable thereto, the applicable Borrower shall reimburse the applicable
Lender therefor, and shall hold such Lender harmless therefrom, upon such
Lender's demand, in accordance with the terms of Section 4.04.
(g) The Lenders hereby acknowledge and agree that at any time
after the Closing Date, each Borrower shall be entitled to assign Existing Term
Loans to any other Borrower; provided that (i) the applicable Borrower
Representative shall have provided notice of such assignment to the
Administrative Agent and the Lenders at least three Business Days prior to the
date of such proposed transfer, together with a revised amortization schedule
setting forth the repayment obligations of each Borrower on and after the date
of such assignment, and the Administrative Agent and the Required Lenders shall
have approved such assignment and amortization schedule (provided that at any
time during which an Event of Default exists, such assignment shall require the
consent of all of the Lenders providing the Existing Term Loans), (ii) the
applicable Borrowers shall have executed and delivered to the Administrative
Agent an assignment agreement, in form and substance satisfactory to the
Administrative Agent, (iii) the aggregate amount of Existing Dollar Term Loans
outstanding shall not exceed the Aggregate Existing Dollar Commitment Amount,
(iv) the amount of Existing Dollar Term Loans made by any Lender shall not
exceed such Lender's Existing Dollar Commitment Amount, (v) the aggregate amount
of Existing Sterling Term Loans outstanding shall not exceed the Aggregate
Existing Sterling Commitment Amount and (vi) the amount of Existing Sterling
Term Loans made by any Lender shall not exceed such Lender's Existing Sterling
Commitment Amount.
39
2.02 Loan Accounts. The Loans made by each Lender and the Letters of
Credit Issued by each Issuer shall be evidenced by one or more accounts or
records maintained by such Lender or Issuer, as the case may be and by the
Administrative Agent, in the ordinary course of business. The accounts or
records maintained by the Administrative Agent, each Issuer and each Lender
shall govern absent manifest error in the amount of the Loans made by such
Lender to a Borrower and the Letters of Credit Issued for the account of the
applicable Borrower, and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of a Borrower hereunder to pay any amount owing with respect to
the Loans or any Letter of Credit. In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts and
records of any Lender or Issuer in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
2.03 Procedure for Borrowing.
(a) (i) Each Borrowing (other than a Borrowing of Swing Line Loans
or a L/C Borrowing) shall be made upon a Borrower Representative's irrevocable
(except in the circumstances described in Section 4.05 as provided therein)
notice delivered to the Administrative Agent in the form of a Notice of
Borrowing (which notice must be received by the Administrative Agent not later
than the Requisite Time therefor) specifying:
(A) the amount of the Borrowing, which shall be in a Minimum
Amount;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) whether such Loan shall be a Revolving Loan, an NSC Term
Loan or a Sterling Term Loan;
(D) if a Loan comprised of Offshore Currency Loans, the
Applicable Currency;
(E) the Type of Loans comprising the Borrowing;
(F) the identity of the Borrower;
(G) with respect to Offshore Rate Loans, the duration of the
Interest Period applicable to such Loans included in such notice. If the
Notice of Borrowing fails to specify the duration of the Interest Period
for any Borrowing comprised of Offshore Rate Loans, such Interest Period
shall be one month; and
(H) the Borrowing Base, as set forth in the most recent
Borrowing Base Certificate delivered (or required to be delivered) to the
Administrative Agent pursuant to Section 7.02(e).
(ii) Each Borrower that is a U.S. Subsidiary hereby designates CVS,
Inc. as its representative and agent on its behalf, and each Borrower that is a
Non-U.S. Subsidiary hereby designates the Company as its representative and
agent on its behalf, in each case for the
40
purposes of issuing notices hereunder, giving instructions with respect to the
disbursement of the proceeds of the Loans, selecting interest rate options,
requesting Letters of Credit, giving and receiving all other notices and
consents hereunder or under any of the other Loan Documents and taking all other
actions (including in respect of compliance with covenants) on behalf of any
Borrower or the Borrowers under the Loan Documents (in such capacity, each a
"Borrower Representative"). Each Borrower Representative hereby accepts such
appointment. The Administrative Agent and each Lender may regard any notice or
other communication pursuant to any Loan Document from a Responsible Officer of
the Borrower Representative as a notice or communication from the applicable
Borrowers, and may give any notice or communication required or permitted to be
given to any Borrower or the Borrowers hereunder to such Responsible Officer of
the Borrower Representative on behalf of such Borrower or the Borrowers. Each
Borrower agrees that each notice, election, representation and warranty,
covenant, agreement and undertaking made on its behalf by a Responsible Officer
of the Borrower Representative shall be deemed for all purposes to have been
made by such Borrower and shall be binding upon and enforceable against such
Borrower to the same extent as if the same had been made directly by such
Borrower.
(b) The Administrative Agent will promptly notify each applicable
Lender of its receipt of any Notice of Borrowing and of the amount of such
Lender's Pro Rata Share of that Borrowing. In the case of a Borrowing of Loans
comprised of Offshore Currency Loans, such notice will provide the amount of
each Lender's Pro Rata Share of the Borrowing, and the Administrative Agent will
promptly notify each Lender of the exact Equivalent Amount of such Lender's Pro
Rata Share of the Borrowing, in the case of a Borrowing not utilizing the
Sterling Term Loan Commitment, or of the exact Sterling amount of such Lender's
Pro Rata Share of a Borrowing utilizing the Sterling Term Loan Commitment. The
Equivalent Amount of any Borrowing in an Offshore Currency will be determined by
the Administrative Agent for such Borrowing on the Computation Date therefor in
accordance with Section 2.16(a).
(c) Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the Administrative Agent for the account of the
applicable Borrower at the applicable Agent's Payment Office on the Borrowing
Date requested by the Borrower Representative in Same Day Funds and in the
requested currency (i) in the case of a Borrowing comprised of Loans in Dollars,
by 1:00 p.m. (Charlotte, North Carolina time) and (ii) in the case of a
Borrowing comprised of Offshore Currency Loans, by such time as the
Administrative Agent may specify. The proceeds of all such Loans will then be
made available to the relevant Borrower by the Administrative Agent at such
office by crediting the account of the relevant Borrower on the books of Bank of
America with the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the Administrative Agent.
(d) After giving effect to any Borrowing, unless the
Administrative Agent shall otherwise consent, there may not be more than twenty
different Interest Periods in effect.
(e) The Borrowers hereby authorize the Administrative Agent to
accept Notices of Borrowing based on telephonic notices made by any person or
persons the Administrative Agent in good faith believes to be acting on behalf
of the Borrowers. The Borrower Representative agrees to deliver promptly to the
Administrative Agent a written
41
confirmation of each telephonic notice, signed by a Responsible Officer of each
Borrower Representative or an authorized designee. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
2.04 Conversion and Continuation Elections.
(a) Subject to subsection (e) below, the applicable Borrower
Representative may, upon irrevocable (except in the circumstances described in
Section 4.05 as provided therein) notice to the Administrative Agent in
accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in the
case of any other Type of Revolving Loans or Term Loans, to convert any
such Loans (or any part thereof in a Minimum Amount) into Loans of any
other Type; or
(ii) elect as of the last day of the applicable Interest
Period, to continue any Offshore Rate Loans having Interest Periods
expiring on such day (or any part thereof in a Minimum Amount);
provided, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than the Minimum Amount, such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Company to continue such Loans as, and convert such Loans into, Offshore
Rate Loans shall terminate. A conversion pursuant to this Section 2.04 does not
constitute a new advance by the Lenders.
(b) The Borrower Representative shall deliver a Notice of
Conversion/ Continuation to be received by the Administrative Agent not later
than the Requisite Time, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed conversion
or continuation;
(D) the Applicable Currency;
(E) the identity of the Borrower; and
(F) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans (other than Offshore Currency Loans), the Borrower
Representative has failed to timely select a new Interest Period to be
applicable to such Offshore Rate Loans, as the case may be, or
42
if any Default or Event of Default then exists, the Borrower Representative
shall be deemed to have elected to convert such Offshore Rate Loans into Base
Rate Loans effective as of the expiration date of such Interest Period. If the
Borrower Representative has failed to select a new Interest Period to be
applicable to Offshore Rate Loans made as Offshore Currency Loans prior to the
fourth Business Day in advance of the expiration date of the current Interest
Period applicable thereto as provided in Section 2.04(b), or if any Default or
Event of Default shall then exist, the applicable Borrower shall be deemed to
have elected to continue such Offshore Rate Loans on the basis of a one month
Interest Period.
(d) The Administrative Agent will promptly notify each applicable
Lender of its receipt of a Notice of Conversion/Continuation, or, if no timely
notice is provided by the Borrower Representative, the Administrative Agent will
promptly notify each applicable Lender of the details of any automatic
conversion for the applicable Borrower. All conversions and continuations shall
be made ratably according to the respective outstanding principal amounts of the
Loans with respect to which the notice was given held by each Lender.
(e) Unless the Required Lenders otherwise consent, during the
existence of a Default or Event of Default, the Borrower Representative may not
elect to have (i) a Loan made in Dollars converted into or continued as an
Offshore Rate Loan or (ii) an Offshore Rate Loan made as an Offshore Currency
Loan continued on the basis of an Interest Period exceeding one month.
(f) After giving effect to any conversion or continuation of
Loans, unless the Administrative Agent shall otherwise consent, there may not be
more than twenty different Interest Periods in effect.
(g) The Borrowers hereby authorize the Lenders and the
Administrative Agent to accept Notices of Conversion/Continuation based on
telephonic notices made by any person or persons the Administrative Agent or any
Lender in good faith believes to be acting on behalf of the relevant Borrowers.
Each Borrower Representative agrees to deliver promptly to the Administrative
Agent a written confirmation of each telephonic notice, signed by a Responsible
Officer of the Borrower Representative. If the written confirmation differs in
any material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
2.05 The Swing Line Loans.
(a) Subject to the terms and conditions hereof, the Swing Line
Lender may, in its sole discretion (subject to Section 2.05(b)), make Swing Line
loans in Dollars or such other currency as may be agreed to by the
Administrative Agent (each such loan, a "Swing Line Loan") to any Borrower on
any Business Day during the period from the Closing Date to the Swing Line
Termination Date in accordance with the procedures set forth in this Section
2.05 in an aggregate Equivalent Amount at any one time outstanding not to exceed
the least of (x) the aggregate available amount of the Revolving Loan
Commitments, (y) $8,000,000 (the "Swing Line Commitment Amount") and (z) the
Borrowing Base, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Swing Line Lender's outstanding Revolving Loans and its Pro
Rata Share of L/C Obligations, may exceed the Swing Line Lender's Pro Rata Share
43
of the aggregate amount of the Revolving Loan Commitments; provided that at no
time shall the sum of (i) the Effective Amount of all outstanding Revolving
Loans (including for the purposes hereof Swing Line Loans) plus (ii) the
Effective Amount of all L/C Obligations exceed the lesser of (a) the Aggregate
Revolving Loan Commitment and (b) the Borrowing Base. Upon the approval of the
Administrative Agent, the Swing Line Commitment Amount may be subdivided, from
time to time, into commitments of one or more specified branches of the Swing
Line Lender so that Swing Line Loans may be made available by the Swing Line
Lender through such branch in local currencies and at local times in an
aggregate amount for such branch not to exceed its designated portion of the
Swing Line Commitment Amount, provided that the aggregate of such subdivided
commitments shall not exceed the Swing Line Commitment Amount. Subject to the
other terms and conditions hereof, a Borrower may borrow under this Section
2.05(a), prepay pursuant to Section 2.05(d), and reborrow pursuant to this
Section 2.05(a) from time to time; provided that the Swing Line Lender shall not
be obligated to make any Swing Line Loan.
(b) The Borrower Representative shall provide the Administrative
Agent and the Swing Line Lender irrevocable written notice (or notice by a
telephone call confirmed promptly by facsimile) of any Swing Line Loan requested
hereunder (which notice must be received by the Swing Line Lender prior to the
Requisite Time (with a copy to the Administrative Agent)) specifying (i) the
amount to be borrowed and the currency requested, (ii) the identity of the
Borrower, and (iii) the requested Borrowing Date, which must be a Business Day.
Upon receipt of such notice, the Swing Line Lender will promptly confirm with
the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such notice from the relevant Borrower and, if not,
the Swing Line Lender will provide the Administrative Agent with a copy thereof.
If and only if the Administrative Agent notifies the Swing Line Lender on the
proposed Borrowing Date that it may make available to the relevant Borrower the
amount of the requested Swing Line Loan, then, subject to the terms and
conditions hereof, the Swing Line Lender may make the amount of the requested
Swing Line Loan available to the relevant Borrower by crediting the account of
the relevant Borrower on the books of Bank of America with the amount of such
Swing Line Loan. The Administrative Agent will not so notify the Swing Line
Lender if the Administrative Agent has knowledge that (A) the limitations set
forth in the proviso set forth in the first sentence of Section 2.05(a) are
being violated or would be violated by such Swing Line Loan or (B) one or more
conditions specified in Article V is not then satisfied. Each Swing Line Loan
shall be in a Minimum Amount.
(c) Principal of and accrued interest on each Swing Line Loan
shall be due and payable (i) on demand made by the Swing Line Lender at any time
upon one Business Day's prior notice to the relevant Borrower furnished at or
before the Requisite Time, and (ii) in any event on the Swing Line Termination
Date. Interest on Swing Line Loans shall be for the sole account of the Swing
Line Lender (except to the extent that the other Lenders have funded the
purchase of their respective participations therein pursuant to Section
2.05(e)).
(d) A Borrower may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal amount
of any Swing Line Loan, without incurring any premium or penalty; provided that
44
(i) each such voluntary prepayment shall require prior
written notice given to the Administrative Agent and the Swing Line Lender
no later than the Requisite Time on the day on which the relevant Borrower
intends to make a voluntary prepayment, and
(ii) each such voluntary prepayment shall be a Minimum Amount
(or the aggregate outstanding principal amount of all Swing Line Loans
then outstanding).
Voluntary prepayments of Swing Line Loans shall be made by the relevant Borrower
to the Swing Line Lender at such office as the Swing Line Lender may designate
by notice to the Borrower Representatives from time to time. All such payments
shall be made as set forth in Section 2.13(a) no later than the Requisite Time
(and any payment received later than such time shall be deemed to have been
received on the next Business Day). The Swing Line Lender will promptly notify
the Administrative Agent of the amount of each prepayment of Swing Line Loans.
(e) If (i) any Swing Line Loan shall remain outstanding at 11:00
a.m. (Charlotte, North Carolina time) on the Business Day immediately prior to a
Business Day on which Swing Line Loans are due and payable pursuant to Section
2.05(c) and by such time on such Business Day the Administrative Agent shall
have received neither (A) a Notice of Borrowing delivered pursuant to Section
2.03 requesting that Revolving Loans be made pursuant to Section 2.01 on such
following Business Day in an amount at least equal to the aggregate principal
amount of such Swing Line Loans, nor (B) any other notice indicating the
relevant Borrower's intent to repay such Swing Line Loans with funds obtained
from other sources, or (ii) any Swing Line Loans shall remain outstanding during
the existence of a Default or Event of Default and the Swing Line Lender shall
in its sole discretion notify the Administrative Agent that the Swing Line
Lender desires that such Swing Line Loans be converted into Revolving Loans,
then the Administrative Agent shall be deemed to have received a Notice of
Borrowing from the relevant Borrower pursuant to Section 2.03 requesting that
Base Rate Loans be made pursuant to Section 2.01 on the following Business Day
in an amount equal to the aggregate amount of such Swing Line Loans, and the
procedures set forth in Section 2.03(c) shall be followed in making such Base
Rate Loans; provided that such Base Rate Loans shall be made notwithstanding the
relevant Borrower's failure to comply with Section 5.02; and provided, further,
that if a Borrowing of Revolving Loans becomes legally impractical and if so
required by the Swing Line Lender at the time such Revolving Loans are required
to be made by the Revolving Lenders in accordance with this Section 2.05(e),
each Revolving Lender agrees that in lieu of making Revolving Loans as described
in this Section 2.05(e), such Revolving Lender shall purchase a participation
from the Swing Line Lender in the applicable Swing Line Loans in an amount equal
to such Lender's Pro Rata Share of such Swing Line Loans, and the procedures set
forth in Section 2.03(c) shall be followed in connection with the purchases of
such participations. The proceeds of such Base Rate Loans (or participations
purchased) shall be delivered by the Administrative Agent to the Swing Line
Lender to repay such Swing Line Loans (or as payment for such participations). A
copy of each notice given by the Administrative Agent to the Revolving Lenders
pursuant to this Section 2.05(e) with respect to the making of Revolving Loans,
or the purchases of participations, shall be promptly delivered by the
Administrative Agent to the relevant Borrower. Each Revolving Lender's
obligation in accordance with this Agreement to make the Revolving Loans, or
purchase the participations, as
45
contemplated by this Section 2.05(e), shall be absolute and unconditional and
shall not be affected by any circumstance, including (1) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the relevant Borrower or any other Person for any
reason whatsoever; (2) the occurrence or continuance of a Default, an Event of
Default or a Material Adverse Effect; or (3) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.
2.06 Voluntary Termination or Reduction of Revolving Loan Commitments.
(a) The Borrowers may, upon not less than three Business Days'
prior notice to the Administrative Agent, terminate the Revolving Loan
Commitments, or permanently reduce the Revolving Loan Commitments in a Minimum
Amount; unless, after giving effect thereto and to any prepayments of Loans made
on the effective date thereof, the Effective Amount of all Revolving Loans,
Swing Line Loans and L/C Obligations outstanding would exceed the Aggregate
Revolving Loan Commitment then in effect. Once reduced in accordance with this
Section 2.06, the Revolving Loan Commitments may not be increased. Any reduction
of the Revolving Loan Commitments shall be applied to each Revolving Lender
according to its Pro Rata Share. All accrued commitment and letter of credit
fees to, but not including, the effective date of any reduction or termination
of Revolving Loan Commitments, shall be paid on the effective date of such
reduction or termination.
(b) At no time shall the Swing Line Commitment exceed the
Aggregate Revolving Loan Commitment and any reduction of the Aggregate Revolving
Loan Commitment which reduces the Aggregate Revolving Loan Commitment below the
then-current amount of the Swing Line Commitment shall result in an automatic
corresponding reduction of the Swing Line Commitment to the amount of the
Aggregate Revolving Loan Commitment, as so reduced, without any action on the
part of the Swing Line Lender. At no time shall the Swing Line Commitment exceed
the Commitment of the Swing Line Lender, and any reduction of the Aggregate
Revolving Loan Commitment which reduces the Commitment of the Swing Line Lender
below the then-current amount of the Swing Line Commitment shall result in an
automatic corresponding reduction of the Swing Line Commitment to the amount of
the Commitment of the Swing Line Lender, as so reduced, without any action on
the part of the Swing Line Lender.
2.07 Optional Prepayments.
Subject to Section 4.04, a Borrower may, at any time or from time to time,
upon irrevocable notice from a Borrower Representative (which notice shall be
delivered three (3) Business Days' prior in the case of Offshore Currency Loans
maintained at the Offshore Rate) (or, subject to Section 4.04, such shorter
period that may be agreed to by the Administrative Agent) to the Administrative
Agent, in respect of Offshore Rate Loans, and in respect of Base Rate Loans, by
not later than 11:00 a.m. (local time) on the prepayment date, prepay Loans in
whole or in part, in a Minimum Amount. Such notice of prepayment shall specify
the date and amount of such prepayment, which Loans are to be prepaid, the
applicable Borrower, the Type(s) of such Loans to be prepaid and the Applicable
Currency. The Administrative Agent will promptly notify each Lender of its
receipt of any such notice, and of such Lender's Pro Rata Share of such
prepayment. If such notice is given by a Borrower Representative, the applicable
46
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together, in the
case of Offshore Rate Loans, with accrued interest to each such date on the
amount prepaid and any amounts required pursuant to Section 4.04. The amount of
such optional prepayment of Existing Term Loans shall be applied and paid by the
applicable Borrower to reduce its Existing Term Loan pro rata with respect to
each remaining installment of principal of such Loan.
2.08 Termination of Commitments; Reduction of Commitment Amounts;
Mandatory Commitment Reductions; Mandatory Prepayments of Loans.
(a) (i) The Aggregate NSC Term Loan Commitment (and, as
applicable, the NSC Term Loan Commitment of each Term Lender) shall be
automatically reduced from time to time on the date, and in the amount, of (x)
any Borrowing of an NSC Term Loan and (y) any reduction in the Stated Amount of
the Existing Fleet Letter of Credit in the event, for this clause (y), such
reduction is not accompanied by a request and/or a deemed request for a
Borrowing of an NSC Term Loan.
(ii) The Sterling Term Loan Commitment shall be automatically
reduced from time to time on the date, and in the amount, that the amount
available to be drawn under the Loan Note Credit Support is reduced pursuant to
the terms of the Loan Note Credit Support (but after giving effect to any
Borrowing of Sterling Term Loans used to repay drawings thereunder on such
date). In addition, the Aggregate Sterling Term Loan Commitment (and, as
applicable, the Sterling Term Loan Commitment of each Term Lender) shall be
automatically reduced from time to time on the date, and in the amount, of any
Borrowing of a Sterling Term Loan.
(iii) The Aggregate Existing Dollar Term Loan Commitment Amount
(and, as applicable, the Existing Dollar Term Loan Commitment Amount of each
Term Lender) shall be automatically reduced from time to time on the date, and
in the amount, of any repayment or prepayment of an Existing Dollar Term Loan.
(iv) The Aggregate Existing Sterling Term Loan Commitment Amount
(and, as applicable, the Existing Sterling Term Loan Commitment Amount of each
Term Lender) shall be automatically reduced from time to time on the date, and
in the amount, of any repayment or prepayment of an Existing Sterling Term Loan.
(b) If on any date the aggregate amount of L/C Obligations exceeds
the L/C Commitment, the relevant Borrower shall Cash Collateralize on such date
the applicable outstanding Letters of Credit in an amount equal to the excess of
the maximum amount then available to be drawn under the Letters of Credit over
the L/C Commitment. Subject to Section 4.04, if on any date after giving effect
to any Cash Collateralization made on such date pursuant to the preceding
sentence, the aggregate amount of all Revolving Loans and Swing Line Loans then
outstanding plus the aggregate amount of all L/C Obligations exceeds the
Aggregate Revolving Loan Commitment, the respective Borrower shall immediately,
and without notice or demand, prepay the outstanding principal amount of its
Revolving Loans and L/C Advances by an amount equal to its pro rata share of the
applicable excess.
47
(c) Subject to Section 4.04, if on any Computation Date the
Administrative Agent shall have determined that the then aggregate Equivalent
Amount of principal of all Revolving Loans and Swing Line Loans then outstanding
plus (without duplication) the Effective Amount of all L/C Obligations exceeds
the Aggregate Revolving Loan Commitment by more than $1,000,000 due to a change
in applicable rates of exchange between Dollars, on the one hand, and Offshore
Currencies on the other hand, then the Administrative Agent shall give notice to
the applicable Borrower Representative that a prepayment is required under this
Section 2.08(c), and the applicable Borrower agrees thereupon to make
prepayments of Loans such that, after giving effect to such prepayment, the
outstanding Equivalent Amount of principal of all Revolving Loans and Swing Line
Loans plus (without duplication) the Effective Amount of all L/C Obligations
does not exceed the Aggregate Revolving Loan Commitment by more than $1,000,000.
(d) If any portion of the Sterling Term Loan Commitment remains
unutilized on the date that the Loan Note Credit Support is terminated and the
Loan Notes Instrument is released, then such portion of the Sterling Term Loan
Commitment shall be automatically deemed to be reduced.
(e) If at any time the then aggregate Equivalent Amount of the
outstanding principal of all Revolving Loans and Swing Line Loans plus (without
duplication) the Effective Amount of all L/C Obligations exceeds the Borrowing
Base by more than $1,000,000, the Borrowers shall immediately prepay the Loans
by an amount equal to such excess.
(f) Subject to Section 2.08(h), on each date occurring one hundred
twenty (120) days after the last day of each fiscal year of BHI, beginning with
the fiscal year ending December 31, 2003, BHI shall cause the Borrowers, and the
Borrowers hereby agree, to prepay Term Loans in an amount equal to fifty percent
(50%) of the Excess Cash Flow, if any, of BHI and its Subsidiaries during the
immediately preceding fiscal year of BHI. Any mandatory prepayment of Terms
Loans required by this Section 2.08(f) shall be made pro rata by each of the
Borrowers and shall be allocated pro rata to NSC Term Loans, Existing Dollar
Term Loans, Existing Sterling Term Loans and Sterling Term Loans. The amount of
such prepayment shall be applied pro rata with respect to each remaining
installment of principal of the Term Loans until such time as the sum of (i) an
amount equal to fifty percent (50%) of the aggregate Excess Cash Flow of BHI and
its Subsidiaries calculated in accordance with the first sentence of this
Section 2.08(f), commencing with the fiscal year ending December 31, 2003, (ii)
the Net Proceeds received from Asset Dispositions (other than pursuant to
subsection 8.02(a), (b), (c), (d), (e), (g), (h) or (j)) made by BHI or its
Subsidiaries after the date hereof, (ii) the Net Proceeds realized upon all debt
issuances (other than the Loans and any other Indebtedness permitted by this
Agreement) made by BHI or its Subsidiaries, (iii) the insurance proceeds
received by BHI or any Subsidiary following a casualty or Event of Loss
involving such Person's property, and any payments received by BHI or any
Subsidiary from a condemnation of such Person's Property, after the date hereof,
and (iv) 50% of Net Proceeds of any equity issuances made after the date hereof
by BHI or any Subsidiary (other than Excluded Equity), shall exceed $5,000,000.
Thereafter, the amount of any such prepayment shall be applied to the remaining
installment of principal of the Term Loans in inverse order of their maturities.
Such proceeds shall be applied first, to the extent possible, to prepay its Base
Rate Loans and then to prepay Offshore Rate Loans (provided that the
Administrative Agent shall, so long as no Default or Event of Default
48
has occurred and is continuing, hold such amounts to be used to prepay Offshore
Rate Loans until the end of any Interest Period so as to avoid breakage costs
unless otherwise requested by the applicable Borrower to immediately apply such
amounts). Each Borrower shall use its commercially reasonable efforts to notify
the Administrative Agent and each Lender holding a Term Loan of the amount of
any required prepayment at least three (3) Business Days before it is made.
(g) Subject to Section 2.08(h), on the day of receipt of the
proceeds from the events specified below, BHI shall cause each Borrower, and
each Borrower hereby agrees, to prepay Term Loans in an amount equal to (i) 100%
of the sum of (x) the Net Proceeds realized upon all Asset Dispositions (other
than pursuant to subsection 8.02(a), (b), (c), (d), (e), (g), (h) or (j)) made
by BHI and its Subsidiaries in excess, in the aggregate, of $1,500,000 in any
fiscal year of BHI and its Subsidiaries, (y) the Net Proceeds realized upon all
debt issuances (other than the Loans and any other Indebtedness permitted by
this Agreement) made by BHI or its Subsidiaries and (z) the insurance proceeds
received by BHI or any Subsidiary following a casualty or Event of Loss
involving such Person's property, and the payments received by BHI or any
Subsidiary in such fiscal quarter from a condemnation of such Person's Property,
aggregating in excess of $1,500,000 for BHI and its Subsidiaries, to the extent
in the case of amounts derived from the events described in clauses (x) and (z)
above such amounts are not applied (or committed to be applied) within 180 days
after the consummation or receipt thereof, as applicable, to the purchase of
other assets that are not classified as current assets under GAAP and are used
or useful in the business of BHI or such Subsidiary, and (ii) 50% of the Net
Proceeds realized upon all equity issuances made by BHI or any Subsidiary in
such fiscal quarter; provided, however, that no prepayment need be made with the
proceeds of (1) any equity issuances by any Loan Party or any of its
Subsidiaries to another Loan Party or any of its Subsidiaries, (2) any equity
issuances by BHI issued to any consultants, directors and employees of BHI and
its Subsidiaries; provided that the aggregate amount of such equity issuances
after the first anniversary of the Closing Date shall not exceed $3,000,000),
(3) any common equity issuances by BHI issued to the holders of its Capital
Stock as of the Closing Date and their Related Parties (including, for purposes
hereof, Onex and its Affiliates), (4) any common equity issuances by BHI issued
in connection with a Permitted Acquisition or an Investment under Section
8.04(j) and (5) any common equity issuances by BHI 100% of the proceeds of which
are utilized to repay Term Loans; provided, that no prepayment of the Term Loans
need be made with the proceeds of debt issuances pursuant to Section 7.16 (it
being understood that such proceeds shall be applied to payment of the Revolving
Loans only) (each of the items set forth in clauses (1) through (5) of the first
proviso in this Section 2.08(g), the "Excluded Equity"). Any mandatory
prepayment of Terms Loans required by this Section 2.08(g) shall be made pro
rata by each of the Borrowers and shall be allocated pro rata to NSC Term Loans,
Existing Dollar Term Loans, Existing Sterling Term Loans and Sterling Term
Loans. The amount of such prepayment shall be applied pro rata with respect to
each remaining installment of principal of the Term Loans until such time as the
sum of (i) an amount equal to fifty percent (50%) of the aggregate Excess Cash
Flow of BHI and its Subsidiaries calculated in accordance with the first
sentence of Section 2.08(f), commencing with the fiscal year ending December 31,
2003, (ii) the Net Proceeds received from Asset Dispositions (other than
pursuant to subsection 8.02(a), (b), (c), (d), (e), (g), (h) or (j)) made by BHI
or its Subsidiaries after the date hereof, (ii) the Net Proceeds realized upon
all debt issuances (other than the Loans and any other Indebtedness permitted by
this Agreement) made by BHI or its Subsidiaries, (iii) the insurance proceeds
received by BHI or any Subsidiary
49
following a casualty or Event of Loss involving such Person's property, and any
payments received by BHI or any Subsidiary from a condemnation of such Person's
Property, after the date hereof, and (iv) 50% of Net Proceeds of any equity
issuances made after the date hereof by BHI or any Subsidiary (other than
Excluded Equity), shall exceed $5,000,000. Thereafter, the amount of any such
prepayment shall be applied to the remaining installment of principal of the
Term Loans in inverse order of their maturities. Such proceeds shall be applied
first, to the extent possible, to prepay Base Rate Loans or Loans maintained at
the Offshore Currency Domestic Rate and then to prepay Offshore Rate Loans
(provided that the Administrative Agent shall, so long as no Default or Event of
Default has occurred and is continuing, hold such amounts to be used to prepay
Offshore Rate Loans until the end of any Interest Period so as to avoid breakage
costs, unless otherwise requested by the Company to immediately apply such
amount). Each Borrower shall use its best efforts to notify the Administrative
Agent and each Lender holding a Term Loan of the amount of any required
prepayment at least three (3) Business Days before it is made.
(h) Notwithstanding the foregoing, no Borrower shall be required
to make the mandatory prepayments specified in Sections 2.08(f) or 2.08(g) to
the extent that the Total Leverage Ratio (calculated as of the most recently
ended fiscal quarter of BHI on a pro forma basis after giving effect to the
transaction or event giving rise to the need for a prepayment) would be less
than 2.00 to 1.0; provided, that the Administrative Agent shall have received a
certificate of a Responsible Officer of the Borrower Representative certifying
to the foregoing and attaching appropriate calculations.
2.09 Repayment.
(a) Term Loans.
(i) The Company shall repay its Existing Term Loans in an amount
equal to the Sterling amounts set forth below on each Principal Payment Date:
Date Term Loan Payment
---- -----------------
March 31, 2003 (pound) 71,131.20
June 30, 2003 (pound) 71,131.20
September 30, 2003 (pound) 71,131.20
December 31, 2003 (pound) 71,131.20
March 31, 2004 (pound)142,262.40
June 30, 2004 (pound)142,262.40
September 30, 2004 (pound)142,262.40
December 31, 2004 (pound)142,262.40
March 31, 2005 (pound)213,393.59
June 30, 2005 (pound)213,393.59
September 30, 2005 (pound)213,393.59
January 2, 2006 (pound)827,882.74
50
(ii) (A) NSC shall repay its Existing Term Loans in an
amount equal to the Dollar amounts set forth below on each Principal Payment
Date:
Date Term Loan Payment
---- -----------------
March 31, 2003 $ 353,678.67
June 30, 2003 $ 353,678.67
September 30, 2003 $ 353,678.67
December 31, 2003 $ 353,678.67
March 31, 2004 $ 707,357.34
June 30, 2004 $ 707,357.34
September 30, 2004 $ 707,357.34
December 31, 2004 $ 707,357.34
March 31, 2005 $ 1,061,036.00
June 30, 2005 $ 1,061,036.00
September 30, 2005 $ 1,061,036.00
January 2, 2006 $ 4,116,400.04
(B) In addition to the above, NSC shall repay to the
Lenders on the Revolving Loan Termination Date the aggregate outstanding
principal amount of NSC Term Loans.
(iii) CVS, Inc. shall repay its Existing Term Loans in an
amount equal to the Dollar amounts set forth below on each Principal Payment
Date:
Date Term Loan Payment
---- -----------------
March 31, 2003 $ 789,624.54
June 30, 2003 $ 789,624.54
September 30, 2003 $ 789,624.54
December 31, 2003 $ 789,624.54
March 31, 2004 $ 1,579,249.07
June 30, 2004 $ 1,579,249.07
September 30, 2004 $ 1,579,249.07
December 31, 2004 $ 1,579,249.07
March 31, 2005 $ 2,368,873.61
June 30, 2005 $ 2,368,873.61
September 30, 2005 $ 2,368,873.61
January 2, 2006 $ 9,190,292.68
(iv) The Sterling Term Loan. The Company shall repay to the
Lenders on the Revolving Loan Termination Date the aggregate principal amount of
its Sterling Term Loans outstanding on such date.
51
(b) The Revolving Credit. The Borrowers shall repay to the Lenders
on the Revolving Loan Termination Date the aggregate principal amount of its
Revolving Loans outstanding on such date.
(c) The Swing Line. The Borrowers shall repay the Swing Line Loans
on demand.
2.10 Interest.
(a) Each Revolving Loan and Term Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Offshore Rate, the Base Rate or the Offshore
Currency Domestic Rate, as the case may be (and subject to the relevant
Borrower's right to convert to other Types of Loans under Section 2.04), plus
the Applicable Offshore Rate Margin or Applicable Base Rate Margin, as
applicable. Swing Line Loans shall bear interest on the principal amount thereof
from the applicable Borrowing Date at a rate per annum equal to the Quoted Rate.
(b) Interest on each Revolving Loan and the Term Loan shall be
paid in arrears on each Interest Payment Date. Interest on Base Rate Loans shall
also be paid on the date of any payment (including prepayment) in full thereof.
Interest on Offshore Rate Loans shall also be paid on the date of any payment
(including prepayment) in full thereof. During the existence of any Event of
Default, interest on all Loans shall be paid on demand of the Administrative
Agent at the request or with the consent of the Required Lenders.
(c) Notwithstanding subsection (a) of this Section 2.10, effective
immediately upon the occurrence and during the continuance of an Event of
Default pursuant to subsection 9.01(a), or effective upon the thirtieth day
after the occurrence and continuance of any other Event of Default pursuant to
subsections 9.01(b) through (n), the Borrowers agree to pay interest on all of
their outstanding Obligations, payable on demand, at a fluctuating rate per
annum equal to the rate otherwise in effect with respect to such Obligations,
plus two percent (2.0%).
(d) Anything herein to the contrary notwithstanding, the
obligations of the Borrowers to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Lender would be contrary
to the provisions of any law applicable to such Lender limiting the highest rate
of interest that may be lawfully contracted for, charged or received by such
Lender, and in such event the Borrowers shall pay such Lender interest at the
highest rate permitted by applicable law.
2.11 Fees.
In addition to certain fees described in Section 3.08:
(a) Arrangement, Agency Fees. The Borrowers shall pay such fees to
the Administrative Agent and the Arranger as are required by the letter
agreement ("Fee Letter") among CVS, Inc., the Company, the Arranger and the
Administrative Agent dated as of January 27, 2003.
52
(b) Commitment Fees. The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Lender a commitment fee on the average
daily unused portion of such Revolving Lender's Loan Commitment (the "Commitment
Fee"), computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon the daily utilization for that quarter as calculated
by the Administrative Agent. At all times prior to the delivery of a Compliance
Certificate pursuant to subsection 7.02(b) for the fiscal quarter ended March
31, 2003, the Commitment Fee shall be a per annum rate equal to 50.0 basis
points and, at all times thereafter, the Commitment Fee shall be a per annum
rate equal to the Commitment Fee in effect at such time as determined by
reference to the Pricing Grid attached hereto as Schedule 1.01 and the
applicable Total Leverage Ratio for the applicable period set forth in the most
recent Compliance Certificate delivered pursuant to Section 7.02(b). For
purposes of calculating utilization under this subsection 2.11(b), the Revolving
Loan Commitments shall be deemed used to the extent of the aggregate amount of
Revolving Loans then outstanding plus the aggregate amount of L/C Obligations
then outstanding and shall not be deemed used by a Lender's Pro Rata Share of
Swing Line Loans. Such commitment fee shall accrue from the date hereof to the
Revolving Loan Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing on March
31, 2003, with the final payment to be made on the Revolving Loan Termination
Date. The Commitment Fee provided in this subsection 2.11(b) shall accrue at all
times after the date hereof, including at any time during which one or more
conditions in Article V are not met.
(c) Continuation Fee. At the times and in the amounts set forth
below, the Borrowers shall pay to the Administrative Agent for the account of
each Lender a fee (the "Continuation Fee"), on the amount of each Lender's
Commitment as of the Closing Date. The Continuation Fee shall be a per annum
rate equal to (i) in the event the Commitments are not terminated and the
Obligations (other than contingent indemnification obligations) are not paid in
full in cash by March 31, 2005, $1,135,406, (ii) in the event the Commitments
are not terminated and the Obligations (other than contingent indemnification
obligations) are not paid in full in cash by June 30, 2005, $227,081, (iii) in
the event the Commitments are not terminated and the Obligations (other than
contingent indemnification obligations) are not paid in full in cash by
September 30, 2005, $227,081, and (iv) in the event the Commitments are not
terminated and the Obligations (other than contingent indemnification
obligations) are not paid in full in cash by January 2, 2006, $227,081. Such
fees shall be fully earned as of the Closing Date and shall be due and payable
as of the dates set forth in clauses (i) through (iv) above; provided, that such
fees shall only be due and payable on each such date if the Commitments have not
been terminated (unless terminated by operation of law) and the Obligations have
not been paid in full in cash (other than contingent indemnification
obligations) by such date.
2.12 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base
Rate is determined by Bank of America's "prime rate" and all computations of
interest for Loans denominated in Sterling shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year), unless market practice for a currency
(other than U.S. Dollars, Sterling or Euro) as determined by the Administrative
Agent is different, in which case
53
such different basis shall apply. Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) Each determination of an interest rate or an Equivalent Amount
by the Administrative Agent shall be conclusive and binding on the Borrowers and
the Lending Parties in the absence of manifest error.
2.13 Payments by the Borrowers.
(a) All payments to be made by any Loan Party shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by any Loan Party shall be made to the
Administrative Agent for the account of the Lending Parties at the Agent's
Payment Office, and, with respect to principal of, interest on, and any other
amounts relating to, any Offshore Currency Loan, shall be made in the Offshore
Currency in which such Loan is denominated or payable, and, with respect to all
other amounts payable hereunder, shall be made in Dollars (or in the case of
Letter of Credit Fees relating to the Loan Note Credit Support, in Sterling) and
in each case, in immediately available funds, and (i) in the case of Offshore
Currency payments, no later than such time on the dates specified herein as may
be reasonably determined by the Administrative Agent to be necessary for such
payment to be credited on such date in accordance with normal lending procedures
in the place of payment (as notified to the Borrower Representatives on or prior
to the Closing Date and thereafter at least five Business Days prior to any
change therein) and (ii) in the case of any Dollar payments no later than 1:00
p.m. (Charlotte, North Carolina time). The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share of such payment in like funds as
received. Any payment received by the Administrative Agent later than the
applicable time set forth above shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Borrower Representative on behalf of a Borrower prior to the date on which any
payment is due to the Lenders that such Borrower will not make such payment in
full as and when required, the Administrative Agent may assume that such
Borrower has made such payment in full to the Administrative Agent on such date
in immediately available funds and the Administrative Agent may (but shall not
be so required), in reliance upon such assumption, distribute to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower has not made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent on demand such amount
distributed to such Lender, together with interest thereon at the Federal Funds
Rate for each day from the date such amount is distributed to such Lender until
the date repaid.
54
2.14 Payments by the Lenders to the Administrative Agent.
(a) Unless the Administrative Agent receives notice from a Lender
on or prior to the Closing Date or, with respect to any Borrowing after the
Closing Date, at least one Business Day prior to the date of such Borrowing,
that such Lender will not make available as and when required hereunder to the
Administrative Agent for the account of the relevant Borrower the amount of that
Lender's Pro Rata Share of the Borrowing, the Administrative Agent may assume
that each Lender has made such amount available to the Administrative Agent in
Same Day Funds on the Borrowing Date and the Administrative Agent may (but shall
not be so required), in reliance upon such assumption, make available to the
relevant Borrower on such date a corresponding amount. If and to the extent any
Lender shall not have made its full amount available to the Administrative Agent
in Same Day Funds and the Administrative Agent in such circumstances has made
available to the relevant Borrower such amount, that Lender shall on the
Business Day following such Borrowing Date make such amount available to the
Administrative Agent, together with interest at the Federal Funds Rate (or in
the case of non-Dollar denominated Loans, the Administrative Agent's cost of
funds with respect thereto) for each day during such period. A notice of the
Administrative Agent submitted to any Lender with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Administrative Agent shall constitute
such Lender's Loan on the date of Borrowing for all purposes of this Agreement.
If such amount is not made available to the Administrative Agent on the Business
Day following the Borrowing Date, the Administrative Agent will notify the
relevant Borrower of such failure to fund and, upon demand by the Administrative
Agent, the relevant Borrower shall pay such amount to the Administrative Agent
for the Administrative Agent's account, together with interest thereon for each
day elapsed since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing
Date shall not relieve any other Lender of any obligation hereunder to make a
Loan on such Borrowing Date, but no Lender shall be responsible for the failure
of any other Lender to make the Loan to be made by such other Lender on any
Borrowing Date.
2.15 Sharing of Payments, Etc.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder), such Lender
shall immediately (a) notify the Administrative Agent of such fact, and (b)
purchase from the other Lenders such participations in the Loans made by them as
shall be necessary to cause such purchasing Lender to share the excess payment
pro rata with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from the purchasing Lender, such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrowers agree that any Lender so purchasing
55
a participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.10) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrowers in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section 2.15 and will in each case notify the Lenders following any such
purchases or repayments.
2.16 Utilization of Commitments in Offshore Currencies.
(a) The Administrative Agent will determine the Equivalent Amount
with respect to any (i) Borrowing comprised of Offshore Currency Loans as of the
requested Borrowing Date, (ii) outstanding Offshore Currency Loans denominated
in a currency other than Dollars as of the last Business Day of each month,
(iii) outstanding Offshore Currency Loans denominated in a currency other than
Dollars as of any redenomination date pursuant to this Section 2.16 or Section
3.5, (iv) L/C Obligations denominated in a currency other than Dollars, on the
date of Issuance and thereafter as of the last Business Day of each month and
(v) Offshore Currency Loans or L/C Obligations, as of any date specified for
determining the Equivalent Amount of any amount (each such date under clauses
(i) through (iv) a "Computation Date"); provided, however, that the provisions
of this Section 2.16(a) shall not apply to any Borrowing utilizing the Sterling
Term Loan Commitment.
(b) In the case of a proposed Borrowing comprised of Offshore
Currency Loans (other than a Borrowing of a Sterling Term Loan), the Lenders
shall be under no obligation to make Offshore Currency Loans in the requested
Offshore Currency as part of such Borrowing if the Administrative Agent has
received notice from any of the Lenders by 11:00 a.m. (Charlotte, North Carolina
time) four Business Days prior to the day of such Borrowing that such Lender
cannot provide Loans in the requested Offshore Currency, in which event the
Administrative Agent will give notice to the relevant Borrower no later than
1:00 p.m. (Charlotte, North Carolina time) on the third Business Day prior to
the requested date of such Borrowing that the Borrowing in the requested
Offshore Currency is not then available, and notice thereof also will be given
promptly by the Administrative Agent to the Lenders. If the Administrative Agent
shall have so notified the relevant Borrower that any such Borrowing in a
requested Offshore Currency is not then available, the relevant Borrower may, by
notice to the Administrative Agent not later than 5:00 p.m. (Charlotte, North
Carolina time) two Business Days prior to the requested date of such Borrowing,
withdraw the Notice of Borrowing relating to such requested Borrowing. If the
relevant Borrower does so withdraw such Notice of Borrowing, the Borrowing
requested therein shall not occur and the Administrative Agent will promptly so
notify each Lender. If the relevant Borrower does not so withdraw such Notice of
Borrowing, the Administrative Agent will promptly so notify each Lender and such
Notice of Borrowing shall be deemed to be a Notice of Borrowing that requests a
Borrowing comprised of Offshore Rate Loans for the same Interest Period
previously applicable in an aggregate amount equal to the amount of the
originally requested Borrowing as expressed in Dollars in the Notice of
Borrowing; and in such notice by the Administrative Agent to each Lender the
Administrative Agent will state such aggregate amount of such Borrowing in
Dollars and such Lender's Pro Rata Share thereof.
56
(c) In the case of a proposed continuation of Offshore Currency
Loans for an additional Interest Period (other than Sterling Term Loans), the
Lenders shall be under no obligation to continue such Offshore Currency Loans if
the Administrative Agent has received notice from any of the Lenders by 5:00
p.m. (Charlotte, North Carolina time) four Business Days prior to the day of
such continuation that such Lender cannot continue to provide Loans in the
relevant Offshore Currency, in which event the Administrative Agent will give
notice to the relevant Borrower not later than 1:00 p.m. (Charlotte, North
Carolina time) on the third Business Day prior to the requested date of such
continuation that the continuation of such Offshore Currency Loans in the
relevant Offshore Currency is not then available, and notice thereof also will
be given promptly by the Administrative Agent to the Lenders. If the
Administrative Agent shall have so notified the relevant Borrower that any such
continuation of Offshore Currency Loans is not then available, any Notice of
Continuation/Conversion with respect thereto shall be deemed withdrawn and such
Offshore Currency Loans shall be redenominated into Offshore Rate Loans in
Dollars for the same Interest Period previously applicable with effect from the
last day of the Interest Period with respect to any such Offshore Currency
Loans. The Administrative Agent will promptly notify the relevant Borrower and
the Lenders of any such redenomination and in such notice by the Administrative
Agent to each Lender the Administrative Agent will state the aggregate
Equivalent Amount of the redenominated Offshore Currency Loans as of the
Computation Date with respect thereto and such Lender's Pro Rata Share thereof.
(d) Notwithstanding anything herein to the contrary, during the
existence of an Event of Default, upon the request of the Required Lenders, all
or any part of any outstanding Offshore Currency Loans (other than Existing
Sterling Term Loans and Sterling Term Loans) shall be redenominated and
converted into Base Rate Loans in Dollars on the last day of the Interest Period
with respect to any such Offshore Currency Loans. The Administrative Agent will
promptly notify the relevant Borrower and the Lenders of any such redenomination
and conversion request.
(e) Each Borrower shall be entitled to request that Revolving
Loans and Swing Line Loans hereunder also be permitted to be made in any other
lawful currency (other than Dollars), in addition to the currencies specified in
the definition of "Offshore Currency" herein, that in the opinion of the
Administrative Agent, the Swing Line Lender and the Revolving Lenders is at such
time freely traded in the offshore interbank foreign exchange markets and is
freely transferable and freely convertible into Dollars (an "Agreed Alternative
Currency"). The relevant Borrower shall deliver to the Administrative Agent any
request for designation of an Agreed Alternative Currency to be received by the
Administrative Agent not later than 11:00 a.m. (Charlotte, North Carolina time)
at least 10 Business Days in advance of the date of any Borrowing hereunder
proposed to be made in such Agreed Alternative Currency. Upon receipt of any
such request the Administrative Agent will promptly notify the Revolving Lenders
thereof, and each Revolving Lender will use its commercially reasonable efforts
to respond to such request within five (5) Business Days of receipt thereof.
Each Lender may grant, accept or reject such request in its sole discretion. The
Administrative Agent will promptly notify the relevant Borrower and the
Revolving Lenders of the acceptance or rejection of any such request.
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2.17 Security and Guaranty.
(a) All Obligations of the Borrowers and the Guarantors shall be
secured in accordance with and to the extent of the Collateral Documents.
(b) All Obligations of (i) the Company shall be unconditionally
guaranteed by BHI, each U.K. Subsidiary of BHI (other than the Company) and each
U.S. Subsidiary of BHI, (ii) KAB Seating shall be unconditionally guaranteed by
BHI, the Company, each U.K. Subsidiary of BHI (other than KAB Seating) and each
U.S. Subsidiary of BHI, (iii) NSC shall be unconditionally guaranteed by BHI,
the Company, each U.K. Subsidiary of BHI (other than Foreign 956 Subsidiaries)
and each U.S. Subsidiary of BHI (other than NSC), and (iv) CVS, Inc. shall be
unconditionally guaranteed by BHI, each U.K. Subsidiary of BHI (other than
Foreign 956 Subsidiaries) and each U.S. Subsidiary of BHI (other than CVS,
Inc.), in each case pursuant to and in accordance with the Guaranties.
Notwithstanding the foregoing, the obligations shall not be guaranteed by any of
the Subsidiaries listed on Schedule 2.17. The Borrowers represent and warrant
that none of the Subsidiaries on such Schedule 2.17 have, and hereby covenant
that none of the Subsidiaries on such Schedule 2.17 shall at any time have,
assets in excess of (pound)2,500,000 and the Borrowers represent and warrant
that such Subsidiaries in the aggregate do not have, and hereby covenant that
the Subsidiaries in the aggregate shall not at any time have, assets in excess
of (pound)10,000,000.
(c) 100% (or 65% of each first tier Foreign 956 Subsidiary) of the
outstanding Capital Stock of each first tier Subsidiary of BHI shall be pledged
to secure all of the Obligations of BHI.
(d) 100% (or 65% of each first tier Foreign 956 Subsidiary) of the
outstanding Capital Stock of each Subsidiary of a Borrower shall be pledged to
secure all of the Obligations of such Borrower.
ARTICLE III
LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
(a) (i) On the terms and conditions set forth in Article V (I)
each Issuer agrees, (A) from time to time on any Business Day, during the period
from the first Business Day to occur after the Closing Date to the day which is
five days prior to the Revolving Loan Termination Date, to issue Letters of
Credit for the account of a Borrower in an aggregate Stated Amount in Dollars or
an Offshore Currency at any one time that, the Stated Amount of which, together
with the aggregate Stated Amount of all other outstanding Letters of Credit
issued pursuant hereto, does not exceed the L/C Commitment, and to amend or
renew Letters of Credit previously issued by it, in accordance with subsections
3.02(c) and 3.02(d), and (B) to honor drafts under the Letters of Credit; and
(II) the Lenders severally agree to participate in Letters of Credit Issued for
the account of such Borrower (in the amounts determined in accordance with
Section 3.03(a)); provided, that no Issuer shall be obligated to Issue, and no
Lender shall be obligated to participate in, any Letter of Credit if as of the
date of Issuance of such Letter of
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Credit (the "Issuance Date") (1) the Effective Amount of all L/C Obligations
plus the Effective Amount of all Revolving Loans and of all Swing Line Loans
exceeds the Aggregate Revolving Loan Commitment, (2) the participation of any
Lender in the Effective Amount of all L/C Obligations plus the Effective Amount
of the Revolving Loans of such Lender and such Lender's Pro Rata Share of any
outstanding Swing Line Loans exceeds such Lender's Revolving Loan Commitment, or
(3) the Effective Amount of L/C Obligations exceeds the L/C Commitment. Within
the foregoing limits, and subject to the other terms and conditions hereof, a
Borrower's ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, such Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which have been drawn
upon and reimbursed.
(ii) Pursuant to Section 3.10, Bank of America, N.A., as an
Issuer, agrees (A) to maintain the irrevocable bank guarantee for the
account of the Company that was previously issued in the form attached to
the Loan Note Instrument under the Original U.K. Credit Agreement (the
"Loan Note Credit Support") and, subject to the satisfaction of the
conditions in Section 5.02, to amend or renew the Loan Note Credit Support
in accordance with Sections 3.02(c) and (d), and (B) to honor drawings
under the Loan Note Credit Support.
(iii) On the terms and conditions set forth in Article V, and
in accordance with Section 3.11, Fleet National Bank, as an Issuer, agrees
to maintain the Existing Fleet Letter of Credit.
(b) No Issuer is under any obligation to, and shall not, Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain
an Issuer from Issuing such Letter of Credit, or any Requirement of Law
applicable to an Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over
an Issuer shall prohibit, or request that an Issuer refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon an Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which an
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon an Issuer any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and which an
Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) an Issuer has received written notice from any Lender,
the Administrative Agent or the Borrower Representative, on or prior to
the Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in Article
V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit (other
than the Loan Note Credit Support and the Existing Fleet Letter of Credit)
is (A) more than 365 days after the date of Issuance, unless the Required
Lenders have approved such expiry date in writing, or (B) after the date
which is five days prior to the Revolving Loan
59
Termination Date, unless all of the Revolving Lenders have approved such
expiry date in writing;
(iv) any requested Letter of Credit (other than the Loan Note
Credit Support and the Existing Fleet Letter of Credit) does not provide
for drafts, or is not otherwise in form and substance, acceptable to an
Issuer, or the Issuance of a Letter of Credit shall violate any applicable
policies of the Issuer; or
(v) such Letter of Credit is to be denominated in a currency
other than Dollars or an Offshore Currency.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Borrower Representative received by an Issuer (with a
copy sent by the Borrower Representative to the Administrative Agent) at least
three Business Days (or such shorter time as an Issuer may agree in a particular
instance in its sole discretion) prior to the proposed date of Issuance. Each
such request for Issuance of a Letter of Credit shall be by facsimile, confirmed
immediately in an original writing, in the form of an L/C Application (or such
other form as shall be acceptable to the Issuer), and shall specify in form and
detail satisfactory to the applicable Issuer: (i) the proposed date of Issuance
of the Letter of Credit (which shall be a Business Day); (ii) the face amount
and Applicable Currency of the Letter of Credit; (iii) the expiry date of the
Letter of Credit; (iv) the name and address of the account party and beneficiary
thereof; (v) the documents to be presented by the beneficiary of the Letter of
Credit in case of any drawing thereunder; (vi) the full text of any certificate
to be presented by the beneficiary in case of any drawing thereunder; and (vii)
such other matters as the Issuer may require.
(b) At least two Business Days prior to the Issuance of any Letter
of Credit (or such shorter time as the Administrative Agent may agree in a
particular instance in its sole discretion), the applicable Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the L/C Application or L/C Amendment
Application from the applicable Borrower and, if not, the applicable Issuer will
provide the Administrative Agent with a copy thereof. Unless the applicable
Issuer has received notice on or before the Business Day immediately preceding
the date such Issuer is to issue a requested Letter of Credit from the
Administrative Agent (A) directing such Issuer not to issue such Letter of
Credit because such issuance is not then permitted under subsection 3.01(a) as a
result of the limitations set forth in clauses (1) through (3) thereof or under
subsection 3.01(b)(ii) or (iii); or (B) that one or more conditions specified in
Article V are not then satisfied; then, subject to the terms and conditions
hereof, such Issuer shall, on the requested date, Issue a Letter of Credit for
the account of the applicable Borrower in accordance with the Issuer's usual and
customary business practices.
(c) Subject to the penultimate sentence of this subsection (c),
from time to time while a Letter of Credit is outstanding and prior to the
Revolving Loan Termination Date, the applicable Issuer will, upon the written
request of the Borrower Representative received by such Issuer (with a copy sent
by the Borrower Representative to the Administrative Agent) at least three days
(or such shorter time as such Issuer may agree in a particular instance in its
sole
60
discretion) prior to the proposed date of amendment, amend any Letter of Credit
issued by it. Each such request for amendment of a Letter of Credit shall be
made by facsimile, confirmed immediately in an original writing, made in the
form of an L/C Amendment Application and shall specify in form and detail
satisfactory to the applicable Issuer: (i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of the Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such other
matters as the Issuer may require. No Issuer shall be under any obligation to
and shall not, amend any Letter of Credit if: (A) such Issuer would have no
obligation at such time to issue such Letter of Credit in its amended form under
the terms of this Agreement; or (B) the beneficiary of any such letter of Credit
does not accept the proposed amendment to the Letter of Credit. The
Administrative Agent will promptly notify the Lenders of the receipt by it of
any L/C Application or L/C Amendment Application.
(d) Subject to the last sentence of this paragraph (d), the
applicable Issuer and the Lenders agree that, while a Letter of Credit is
outstanding and prior to the date that is five days prior to the Revolving Loan
Termination Date, at the option of the applicable Borrower and upon the written
request of the Borrower Representative received by the applicable Issuer (with a
copy sent by the applicable Borrower Representative to the Administrative Agent)
at least three days (or such shorter time as such Issuer may agree to in a
particular instance in its sole discretion) prior to the proposed date of
notification of renewal, such Issuer shall be entitled to authorize the renewal
of any Letter of Credit issued by it. Each such request for renewal of a Letter
of Credit shall be made by facsimile, confirmed immediately in an original
writing, in the form of an L/C Amendment Application, and shall specify in form
and detail satisfactory to the applicable Issuer: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of the Letter of
Credit (which shall be a Business Day); (iii) the revised expiry date of the
Letter of Credit; and (iv) such other matters as such Issuer may require. The
applicable Issuer shall be under no obligation so to renew any Letter of Credit
if: (A) such Issuer would have no obligation at such time to issue or amend such
Letter of Credit in its renewed form under the terms of this Agreement; or (B)
the beneficiary of any such Letter of Credit does not accept the proposed
renewal of the Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary thereof
receives notice from the applicable Issuer that such Letter of Credit shall not
be renewed, and if at the time of renewal such Issuer would be entitled to
authorize the automatic renewal of such Letter of Credit in accordance with this
subsection 3.02(d) upon the request of the Borrower Representative but such
Issuer shall not have received any L/C Amendment Application from the applicable
Borrower with respect to such renewal or other written direction by the Borrower
Representative with respect thereto, the Issuer shall nonetheless be permitted
to allow such Letter of Credit to renew, and the applicable Borrower and the
Lenders hereby authorize such renewal, and, accordingly, such Issuer shall be
deemed to have received an L/C Amendment Application from the applicable
Borrower requesting such renewal. Notwithstanding the above, no Letter of Credit
shall be renewed, whether via a request for renewal or via an automatic renewal,
if the new expiry date of any such Letter of Credit (other than the Loan Note
Credit Support and the Existing Fleet Letter of Credit) is (A) more than 365
days after the date of renewal, unless the Required Lenders have approved such
expiry date in writing, or (B) after the date which is five days prior to the
Revolving Loan Termination Date, unless all of the Revolving Lenders have
approved such expiry date in writing.
61
(e) The applicable Issuer may, at its election (or as required by
the Administrative Agent at the direction of the Required Lenders), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee (other than the Loan Note Credit Support), and take
any other action as necessary or appropriate, at any time and from time to time,
in order to cause the expiry date of such Letter of Credit to be a date not
later than the date which is five days prior to the Revolving Loan Termination
Date.
(f) This Agreement shall control in the event of any conflict with
any L/C-Related Document (other than any Letter of Credit).
(g) The applicable Issuer will also deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
3.03 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the applicable Issuer a participation in such Letter of Credit and
each drawing thereunder in an amount equal to the product of (A) the Pro Rata
Share of such Lender, times (B) the maximum amount available to be drawn under
such Letter of Credit and the amount of any such drawing thereunder,
respectively.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the applicable Issuer will
promptly notify the Borrower Representatives. The applicable Borrower shall
reimburse the applicable Issuer prior to the Requisite Time, on each date that
any amount is paid by such Issuer under any Letter of Credit (each such date, an
"Honor Date"), in an amount equal to the amount so paid by such Issuer. In the
event the applicable Borrower fails to reimburse the applicable Issuer for the
full amount of any drawing under any Letter of Credit by 1:00 p.m. (local time)
on the Honor Date, such Issuer will promptly notify the Administrative Agent and
the Administrative Agent will promptly notify each Lender thereof, and the
applicable Borrower shall be deemed to have requested that Base Rate Loans, in
the case of Letters of Credit denominated in Dollars, and Loans maintained at
the Offshore Currency Domestic Rate, in the case of the Loan Note Credit Support
and other Letters of Credit denominated in an Offshore Currency, in an amount
equal to such unreimbursed amount be made by the Lenders to be disbursed on the
Honor Date under such Letter of Credit, subject to the amount of the unutilized
portion of the (x) in the case of the Loan Note Credit Support, first, the
Sterling Term Loan Commitment until such commitment is fully utilized and
second, the Aggregate Revolving Loan Commitment, (y) in the case of the Existing
Fleet Letter of Credit, first, the NSC Term Loan Commitment until such
commitment is fully utilized and second, the Aggregate Revolving Loan Commitment
and (z) in the case of all other Letters of Credit, the Aggregate Revolving Loan
Commitment, and subject to the conditions set forth in Section 5.02(b) and (c).
Any notice given by an Issuer or the Administrative Agent pursuant to this
subsection 3.03(b) may be oral if immediately confirmed in writing (including by
facsimile); provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
62
(c) Each Lender shall upon any notice pursuant to Section 3.03(b)
make available to the Administrative Agent for the account of the relevant
Issuer an amount in Same Day Funds equal to its Pro Rata Share of the amount of
the drawing for which they are required to provide reimbursement, whereupon each
participating Lender shall be deemed to have made a Term Loan and/or Revolving
Loan, as the case may be, consisting of a Base Rate Loan, a Loan maintained at
the Offshore Currency Domestic Rate or Offshore Rate Loan, as the case may be,
to the relevant Borrower in that amount. If any Lender so notified fails to make
available to the Administrative Agent for the account of an Issuer the amount of
such Lender's Pro Rata Share of the amount of the drawing by 3:00 p.m.
(Charlotte, North Carolina time) on the Honor Date, then interest shall accrue
on such Lender's obligation to make such payment, from the Honor Date to the
date such Lender makes such payment, at a rate per annum equal to the Federal
Funds Rate in effect from time to time during such period. The Administrative
Agent will promptly give notice of the occurrence of the Honor Date, but failure
of the Administrative Agent to give any such notice on the Honor Date or in
sufficient time to enable any Lender to effect such payment on such date shall
not relieve such Lender from its obligations under this Section 3.03(c).
(d) With respect to any unreimbursed drawing that is not converted
into Loans to the relevant Borrower, in whole or in part, because of a
Borrower's failure to satisfy the conditions set forth in Section 5.02(b) or
(c), the relevant Borrower shall be deemed to have incurred from the applicable
Issuer an L/C Borrowing in the amount of such drawing, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
a rate per annum equal to (x) in the case of an L/C Borrowing denominated in
Dollars, the Base Rate, plus the Applicable Base Rate Margin for Revolving Loans
or Term Loans, as the case may be, plus 2.0% per annum, and (y) in the case of
an L/C Borrowing denominated in an Offshore Currency, the Offshore Currency
Domestic Rate, plus the Applicable Offshore Rate Margin for Term Loans, plus
2.0% per annum, and each Lender's payment to the applicable Issuer pursuant to
subsection 3.03(c) shall be deemed to be payment in respect of its participation
in such L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under Section 3.03(b), and (c).
(e) Each Lender's obligation in accordance with this Agreement to
make the Loans or L/C Advances, as contemplated by this Section 3.03, as a
result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the applicable Issuer and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against an Issuer,
a Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided, however, that each Lender's
obligation to make Loans under this Section 3.03 is subject to the conditions
set forth in Section 5.02(b) and (c).
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Administrative Agent for
the account of the applicable Issuer of immediately available funds from the
relevant Borrower (i) in reimbursement of any payment made by such Issuer under
the Letter of Credit with respect to which any Lender has paid the
Administrative Agent for the account of such Issuer for such
63
Lender's participation in the Letter of Credit pursuant to Section 3.03 or (ii)
in payment of interest thereon, the Administrative Agent will pay to each
applicable Lender in the same funds as those received by the Administrative
Agent for the account of such Issuer, the amount of such Lender's Pro Rata Share
of such funds, and such Issuer shall receive the amount of the Pro Rata Share of
such funds of any Lender that did not so pay the Administrative Agent for the
account of such Issuer.
(b) If the Administrative Agent or an Issuer is required at any
time to return to a Loan Party, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion of the
payments made by such Loan Party to the Administrative Agent for the account of
an Issuer pursuant to Section 3.04(a) in reimbursement of a payment made under
the Letter of Credit or interest or fee thereon, each Lender shall, on demand of
the Administrative Agent, forthwith return to the Administrative Agent or the
relevant Issuer the amount of its Pro Rata Share of any amounts so returned by
the Administrative Agent or the relevant Issuer plus interest thereon from the
date such demand is made to the date such amounts are returned by such Lender to
the Administrative Agent or the relevant Issuer, at a rate per annum equal to
the Federal Funds Rate in effect from time to time.
3.05 Role of Issuers.
(a) Each Lender and each Borrower agree that, in paying any
drawing under a Letter of Credit, no Issuer shall have any responsibility to
obtain any document (other than any sight draft and certificates expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of an Issuer shall be liable to any
Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders (including the Required Lenders);
(ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Borrowers hereby assume all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude any Borrower pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. No
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of an Issuer, shall be liable or responsible for any of the matters
described in clauses (i) through (vii) of Section 3.06; provided, however,
anything in such clauses to the contrary notwithstanding, that the Borrowers may
have a claim against an Issuer, and such Issuer may be liable to the Borrowers,
to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrowers which the
Borrowers prove were caused by such Issuer's bad faith, willful misconduct or
gross negligence or such Issuer's willful or grossly negligent failure to pay
under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit. In furtherance and not in limitation of the foregoing:
(i) an Issuer may
64
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) no Issuer shall be responsible for the
validity 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.
3.06 Obligations Absolute.
Subject to Section 3.05(c), the obligations of the applicable Borrower
under this Agreement and any L/C-Related Document to reimburse the applicable
Issuer for a drawing under a Letter of Credit, and to repay any L/C Borrowing
and any drawing under a Letter of Credit converted into a Loan shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document under all
circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the Borrowers in
respect of any Letter of Credit or any other amendment or waiver of or any
consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Borrowers may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuer or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the L/C-Related Documents or any unrelated
transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by an Issuer under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment made by an
Issuer under any Letter of Credit to any Person purporting to be a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations of
the Borrowers in respect of any Letter of Credit; or
65
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge of,
the Borrowers or a guarantor.
3.07 Cash Collateral Pledge.
(a) If any Letters of Credit for any reason remain outstanding and
partially or wholly undrawn as of the Revolving Loan Termination Date or as of
the date the Aggregate Commitment is for any reason terminated, then the
applicable Borrower shall immediately Cash Collateralize all such Letters of
Credit in an amount in Dollars (or Sterling in the case of the Loan Note Credit
Support) equal to the undrawn amount of all such Letters of Credit.
(b) The Company hereby grants the Collateral Agent, for the
benefit of the Administrative Agent, the Issuers and the Lenders, a security
interest in all Cash Collateral and related deposit account balances posted
hereunder or in connection herewith. Cash Collateral shall be maintained in
blocked deposit accounts at Bank of America while an Event of Default is
continuing and shall be unblocked upon the termination of such Event of Default.
3.08 Letter of Credit Fees.
(a) Each Borrower shall pay to the Administrative Agent for the
account of each of the Lenders a letter of credit fee with respect to its
Letters of Credit equal to the Applicable Offshore Rate Margin per annum
specified for Revolving Loans on the daily maximum amount available to be drawn
on the outstanding Letters of Credit, computed on a quarterly basis in arrears
on the last Business Day of each March, June, September and December based upon
Letters of Credit outstanding for that quarter as calculated by the
Administrative Agent. Such letter of credit fees shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter during
which Letters of Credit are outstanding, commencing on the first such quarterly
date to occur after the Closing Date, through the Revolving Loan Termination
Date (or such later date upon which the outstanding Letters of Credit shall
expire), with the final payment to be made on the Revolving Loan Termination
Date (or such later expiration date).
(b) Each Borrower shall pay to the applicable Issuer for its own
account a letter of credit fronting fee in the amount of 0.25% per annum of the
Stated Amount (or any increase thereof) for each Letter of Credit issued for the
account of such Borrower by such Issuer. Such Letter of Credit fronting fee
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter during which Letters of Credit are outstanding, commencing on
the first such quarterly date to occur after the Closing Date through the
Revolving Loan Termination Date (or such later date upon which the outstanding
Letters of Credit shall expire), with the final payment to be made on the
Revolving Loan Termination Date (or such later expiration date).
(c) Each Borrower shall pay to the applicable Issuer with respect
to its Letters of Credit from time to time on demand the normal issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of such Issuer relating to letters of credit as from time to time in
effect.
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3.09 Uniform Customs and Practice.
Unless otherwise expressly agreed by an Issuer and a Borrower when a
Letter of Credit is issued and subject to applicable laws, performance under
Letters of Credit by such Issuer, its correspondents, and beneficiaries will be
governed by (i) with respect to standby Letters of Credit, the rules of the
"International Standby Practices 1998" (ISP98) or such later revision as may be
published by the International Chamber of Commerce (the "ICC"), and (ii) with
respect to commercial Letters of Credit, the rules of the Uniform Customs and
Practice for Documentary Credits, as published in its most recent version by the
ICC on the date any commercial Letter of Credit is issued, and including the ICC
decision published by the Commission on Banking Technique and Practice on April
6, 1998 regarding the Euro.
3.10 Existing Loan Note Credit Support.
The Loan Note Credit Support set forth under the caption "Loan Note Credit
Support outstanding on the Closing Date" on Schedule 3.10 annexed hereto and
made a part hereof was issued pursuant to the Original U.K. Credit Facility and
remains outstanding as of the Closing Date (the "Existing Loan Note Credit
Support"). Each Loan Party, the Administrative Agent, each Issuer and each of
the Lenders hereby agree with respect to the Existing Loan Note Credit Support
that such Existing Loan Note Credit Support shall, for all purposes under this
Agreement, be deemed to be a Letter of Credit governed by the terms and
conditions of this Agreement.
3.11 Existing Letters of Credit.
The letter of credit set forth under the caption "Letter of Credit issued
by Fleet National Bank and Outstanding on the Closing Date" on Schedule 3.11
annexed hereto and made a part hereof were originally issued pursuant to a prior
credit facility (other than the Original U.S. Credit Agreement and the Original
U.K. Credit Agreement) and remain outstanding as of the Closing Date (the
"Existing Fleet Letter of Credit"). The Existing Fleet Letters of Credit were
deemed to be Letters of Credit pursuant to the Original UK Credit Agreement. The
letters of credit set forth under the caption "Letters of Credit issued by Bank
of America, N.A. and Outstanding on the Closing Date" on such Schedule 3.11 were
issued pursuant to either the Original U.S. Credit Agreement or the Original
U.K. Credit Agreement and remain outstanding as of the Closing Date (together
with the Existing Fleet Letter of Credit, the "Existing Letters of Credit").
Each Loan Party, the Administrative Agent, each Issuer and each of the Lenders
hereby agree with respect to the Existing Letters of Credit that such Existing
Letters of Credit shall, for all purposes under this Agreement, be deemed to be
Letters of Credit governed by the terms and conditions of this Agreement.
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ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Unless otherwise required by law, any and all payments by any
Loan Party to any Lending Party or the Administrative Agent under this Agreement
or any other Loan Document shall be made free and clear of, and without
deduction or withholding for, any Taxes, except as otherwise provided in
Sections 4.01(e) or (f) or 4.11. In addition, each Loan Party shall pay all
applicable Other Taxes except as otherwise provided in Section 4.01(e) or (f) or
4.11.
(b) Subject to Sections 4.01(e) and (f), 4.10(a) and 4.11, if any
Loan Party shall be required by law to deduct or withhold any Taxes, Other Taxes
or Further Taxes from or in respect of any sum payable hereunder to any Lending
Party or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Lending Party or the Administrative Agent, as the case
may be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) such Loan Party shall make such deductions and
withholdings;
(iii) such Loan Party shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) such Loan Party shall also pay to each Lending Party or
the Administrative Agent for the account of such Lending Party, at the
time interest is paid, Further Taxes in the amount that the respective
Lending Party specifies as necessary to preserve the after-tax yield such
Lending Party would have received if such Taxes, Other Taxes or Further
Taxes had not been imposed.
(c) Subject to Sections 4.01(e) and (f), 4.10(a) and 4.11, each
Loan Party agrees to indemnify and hold harmless each Lending Party and the
Administrative Agent for the full amount of (i) Taxes, (ii) Other Taxes, and
(iii) Further Taxes in the amount that the respective Lending Party or the
Administrative Agent specifies as necessary to preserve the after-tax yield such
Lending Party or the Administrative Agent would have received if such Taxes,
Other Taxes or Further Taxes had not been imposed, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days after the date the applicable Lending Party or the Administrative
Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by any Loan Party
of Taxes, Other Taxes or Further Taxes, such Loan Party shall furnish to each
Lending Party or the
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Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment satisfactory to such Lending Party
or the Administrative Agent.
(e) If any Loan Party is required to pay any amount to any Lending
Party or the Administrative Agent pursuant to Section 4.01(b) or (c), then such
Lending Party shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by such Loan Party which may thereafter
accrue, if such change in the sole judgment of such Lending Party is not
otherwise disadvantageous to such Lending Party. In the event that any Lending
Party fails to comply with its obligations as set forth in the previous
sentence, the applicable Loan Party shall not be required to pay an amount which
would not have been payable had such Lending Party complied with its obligations
under this Section 4.01(e).
(f) Nothing contained in this Section 4.01 shall override any term
or provision of any Specified Swap Contract regarding withholding taxes relating
to Swap Contracts.
4.02 Illegality
(a) If any Lending Party determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for such Lending Party or its applicable Lending Office to
make Offshore Rate Loans (including Offshore Rate Loans in any Offshore
Currency), then, on notice thereof by such Lending Party to the Borrower
Representative through the Administrative Agent, any obligation of that Lending
Party to make Offshore Rate Loans shall be suspended until such Lending Party
notifies the Administrative Agent and the Borrowers that the circumstances
giving rise to such determination no longer exist.
(b) If a Lending Party determines that it is unlawful to maintain
any Offshore Rate Loan the applicable Loan Party shall, upon receipt by the
Borrower Representatives of notice of such fact and demand from such Lending
Party (with a copy to the Administrative Agent), convert such Offshore Rate Loan
of that Lending Party to Base Rate Loans, in the case of Loans denominated in
Dollars, or Loans maintained at the Offshore Currency Domestic Rate, in the case
of Loans denominated in an Offshore Currency (either on the last day of the
Interest Period thereof, if such Lending Party may lawfully continue to maintain
such Offshore Rate Loans to such day, or immediately, if such Lending Party may
not lawfully continue to maintain such Offshore Rate Loan) and shall pay or
prepay, as the case may be, all interest accrued therein together with amounts
required under Section 4.04 as a result of such conversion on the date of such
conversion.
(c) If the obligation of any Lender to make or maintain Offshore
Rate Loans has been so terminated or suspended, a Borrower may elect, by giving
notice to such Lender through the Administrative Agent that all Dollar
denominated Loans which would otherwise be made by such Lender as Offshore Rate
Loans shall be instead Base Rate Loans and all Offshore Currency denominated
Loans shall instead be maintained at the Offshore Currency Domestic Rate.
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(d) Before giving any notice to the Administrative Agent under
this Section 4.02, the affected Lending Party shall designate a different
Lending Office with respect to its Offshore Rate Loans if such designation will
avoid the need for giving such notice or making such demand and will not, in the
judgment of such Lending Party, be illegal or otherwise disadvantageous to such
Lending Party.
4.03 Increased Costs and Reduction of Return.
(a) If any Lending Party determines that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance by such Lending Party with any guideline or
request issued after the Closing Date from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to such Lending Party of agreeing to make or making,
funding or maintaining any Offshore Rate Loans, participating in Letters of
Credit, agreeing to Issue, Issuing or maintaining any Letter of Credit or
funding any drawing under any Letter of Credit or any participation therein, as
the case may be, then the applicable Loan Party shall be liable for, and shall
from time to time, upon demand (with a copy of such demand to be sent to the
Administrative Agent), pay to such Lending Party additional amounts as are
sufficient to compensate such Lending Party for such increased costs.
(b) If any Lending Party shall have determined that after the
Closing Date (i) the introduction of any Capital Adequacy Regulation, (ii) any
change in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by any
central bank or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by such Lending Party (or its Lending
Office) or any Person controlling such Lending Party with any Capital Adequacy
Regulation, affects or would affect the amount of capital required or expected
to be maintained by such Lending Party or any Person controlling such Lending
Party and (taking into consideration such Lending Party's or such Person's
policies with respect to capital adequacy and such Lending Party's or such
Person's desired return on capital) determines that the amount of such capital
is increased as a consequence of its Commitment, Loans, Issuance of Letters of
Credit or other obligations under this Agreement, then, upon demand of such
Lending Party to the Borrowers with a copy to the Administrative Agent, the
applicable Loan Party shall pay to such Lending Party, from time to time as
specified by such Lending Party, additional amounts sufficient to compensate
such Lending Party or such Person for such increase.
4.04 Funding Losses.
Each Loan Party shall promptly reimburse each Lending Party and hold each
Lending Party harmless from any loss or expense which such Lending Party may
sustain or incur as a consequence of:
(a) the failure of such Loan Party to make on a timely basis any
payment of principal of any Offshore Rate Loan;
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(b) the failure of such Loan Party to borrow, continue or convert
a Loan after such Loan Party has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/Continuation;
(c) in the case of any Borrower, the failure of such Borrower to
make any prepayment in accordance with any notice delivered under Section 2.07;
(d) the prepayment (including pursuant to Sections 2.08 and 2.09)
or other payment (including after acceleration thereof) of an Offshore Rate Loan
on a day that is not the last day of the relevant Interest Period; or
(e) in the case of a Borrower, the automatic conversion under
Section 2.04 of any Offshore Rate Loan to a Base Rate Loan on a day that is not
the last day of the relevant Interest Period.
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by such Loan Party to the Lending Parties under this
Section 4.04 and under Section 4.03(a), each Offshore Rate Loan made by a Lender
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the Offshore Rate for such Offshore
Rate Loan by a matching deposit or other borrowing in the interbank eurocurrency
market for a comparable amount, comparable currency and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
4.05 Inability to Determine Rates.
If the Administrative Agent determines that for any reason adequate and
reasonable means do not exist for determining the Spot Rate with respect to the
Offshore Rate for any requested Interest Period with respect to a proposed
Offshore Rate Loan, or that the Offshore Rate applicable pursuant to Section
2.10 for any requested Interest Period with respect to a proposed Offshore Rate
Loan does not adequately and fairly reflect the cost to the Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Borrower
Representatives and each Lending Party. Thereafter, the obligation of each
Lending Party to make or maintain Offshore Rate Loans hereunder shall be
suspended until the Administrative Agent revokes such notice in writing. Upon
receipt of such notice, any Loan Party may revoke any applicable Notice of
Borrowing or Notice of Conversion/Continuation then submitted by it. If any such
Loan Party does not revoke any such Notice, such Lending Party shall make,
convert or continue the Offshore Rate Loans, in the amount specified in the
applicable notice submitted by such Loan Party, but such Offshore Rate Loans
shall be made, converted or continued as (x) in the case of Loans to be
denominated in Dollars, Base Rate Loans instead of Offshore Rate Loans or (y) in
the case of Loans to be denominated in an Offshore Currency, Loans maintained at
the Offshore Currency Domestic Rate instead of Offshore Rate Loans.
4.06 Reserves on Offshore Rate Loans.
Each Loan Party shall pay to each Lending Party, as long as such Lending
Party shall be required under regulations of the FRB to maintain reserves with
respect to liabilities or assets
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consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), and, in respect of Loans denominated in an Offshore
Currency under any applicable regulations of the relevant Governmental Authority
of the jurisdiction in which the Offshore Currency circulates, additional costs
on the unpaid principal amount of each Offshore Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lending Party (as
reasonably determined by such Lending Party in good faith, which determination
shall be conclusive), payable on each date on which interest is payable on such
Loan. The Administrative Agent shall provide a notice of any such reserve in
effect on the date hereof and of any change thereof after the date hereof, and
any such additional costs shall be included in the definition of "Offshore Rate"
and be payable on the next date upon which interest is payable or otherwise on
demand.
4.07 Exchange Controls.
If the imposition of exchange controls by any Governmental Authority shall
impair the ability of any Lender to receive payments (other than relating to any
Existing Sterling Term Loan or Sterling Term Loan) in the Applicable Currency,
all such payments shall be made in Dollars to an office specified by such Lender
to the extent possible or otherwise as directed by such Lender.
4.08 Certificates of Lending Party.
Any Lending Party claiming reimbursement or compensation under this
Article IV shall deliver to the Borrower Representatives (with a copy to the
Administrative Agent) a certificate setting forth in reasonable detail the
amount payable to such Lending Party hereunder and such certificate shall be
conclusive and binding on the Loan Parties in the absence of manifest error.
4.09 Substitution of Lenders.
Upon (x) the receipt by a Borrower of a claim for compensation under
Sections 4.01, 4.02, 4.03 or 4.04 from any Lender or (y) a demand from the
Administrative Agent under Section 2.14(a) regarding any Lender or (z) a notice
from a Lender to the Administrative Agent pursuant to Section 2.16(b) or (c) (in
either case such Lender being an "Affected Lender"), the Borrower Representative
may, with the Administrative Agent's assistance: (i) obtain a replacement bank
or financial institution satisfactory to the Borrower Representative and to the
Administrative Agent (a "Replacement Lender") to acquire and assume all or a
ratable part of all of such Affected Lender's Commitments, Loans and other
rights and obligations under this Agreement (collectively such Lender's
"Assignable Credit Exposure"), and if such Affected Lender or any Affiliate
thereof is a Swap Provider, all Specified Swap Contracts of such Affected Lender
and Affiliate; or (ii) request one or more of the other Lenders (which shall be
under no obligation) to acquire and assume all or part of such Affected Lender's
Assignable Credit Exposure. Any such designation of a Replacement Lender under
clause (i) shall be subject to the prior written consent of the Administrative
Agent (which consent shall not be unreasonably withheld). Before the acquisition
and assumption by a Replacement Lender or existing Lender of an Affected
Lender's Assignable Credit Exposure can be effective, the Loan Parties must pay
to the Affected Lender any costs and expenses due to it under Section 4.04.
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4.10 Withholding Tax.
(a) (i) Each Lender that is not a "United States person" within
the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or upon accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to
such Foreign Lender by the Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Lender shall (A) promptly
submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in the case
of a typical participation by such Lender), shall deliver to the Administrative
Agent on the date when such Foreign Lender ceases to act for its own account
with respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies
of the forms or statements required to be provided by such Lender as set forth
above, to establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or
any successor thereto), together with any information such Lender is required to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 4.01 (A) with respect to any Taxes
required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS Form
W-8IMY pursuant to this Section 4.10(a) or (B) if such Lender shall have failed
to satisfy the foregoing provisions of this Section 4.10(a); provided that if
such
73
Lender shall have satisfied the requirement of this Section 4.10(a) on the date
such Lender became a Lender or ceased to act for its own account with respect to
any payment under any of the Loan Documents, nothing in this Section 4.10(a)
shall relieve the Borrower of its obligation to pay any amounts pursuant to
Section 4.01 in the event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person for the
account of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Borrower is not required to pay
additional amounts under this Section 4.10(a).
(v) If any Lender claims exemption from, or reduction of,
withholding tax by providing IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY and such Lender
sells, assigns, or (other than pursuant to clause (b) below) otherwise transfers
all or part of the Obligations of the Borrowers to such Lender, such Lender
agrees to notify the Administrative Agent of the percentage amount in which it
is no longer the owner of Obligations of the Borrowers to another Lender. To the
extent of such percentage amount, the Administrative Agent will treat such
Lender's IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY (or any successor form), as the case
may be, as no longer valid.
(vi) If any Lender claims an exemption from, or reduction of,
withholding tax by providing IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY (or any successor
form) and such Lender grants a participation in the Obligations of a Borrower to
such Lender, such Lender agrees to notify the Administrative Agent of the
percentage amount in which it is no longer the beneficial owner of Obligations
of a Borrower to another Lender, and such Lender agrees to undertake
responsibility to provide to the Borrower Representatives and the Administrative
Agent such forms and documentation (including IRS Form W-8IMY and forms and
documentation provided by such participant to the extent required by the IRS)
from such participant to enable the Borrowers to comply with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(vii) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other documentation
required by this Section 4.01(a) are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax imposed by Sections 1441 and 1442 of the Code,
without reduction.
(b) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9. If such Lender
74
fails to deliver such forms, then the Administrative Agent may withhold from any
interest payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.
(c) If the IRS or any Governmental Authority asserts that the
Administrative Agent did not properly withhold or backup withhold, as the case
may be, any tax or other amount from payments made to or for the account of any
Lender, such Lender shall indemnify the Administrative Agent therefor, including
all penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
4.11 U.K. Tax Matters.
Each Lender holding a Loan to the Company and KAB Seating represents to
the Borrowers and the Administrative Agent that, in the case of a Lender which
is a Lender on the Closing Date and, in the case of a Lender which becomes a
Lender after the Closing Date, on the date it becomes a Lender it is:
(A) either:
(1) not resident in the United Kingdom for United
Kingdom tax purposes and is entitled to receive any payments under this
Agreement without any withholding or deduction for or on account of Taxes under
a double taxation agreement in force on the date when a payment falls due
(subject to the completion of any necessary procedural formalities); or
(2) a "bank" as defined in section 349 of the Income
and Corporation Taxes Act 1988 and resident in the United Kingdom and is within
the charge to United Kingdom corporation tax as respects any payment of interest
paid under this Agreement; and
(B) beneficially entitled to the principal and interest
payable by the Borrowers to it under this Agreement,
and shall forthwith notify the Borrower Representatives and the Administrative
Agent if either representation ceases to be correct.
Each Lender that is not funding its Loans to the Company and KAB Seating
out of a Lending Office in the United Kingdom shall promptly submit a duly
completed Form FD13 double tax treaty form to the U.S. Internal Revenue Service
(or the comparable form for its jurisdiction to its jurisdiction's tax
authorities) seeking exemption from United Kingdom income tax on interest
payable under the Loan Documents by the Company and KAB Seating.
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4.12 Survival.
The agreements and obligations of the Loan Parties in this Article IV
shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions to Effectiveness of Amendment and Restatement.
The effectiveness of this amendment and restatement of the Original U.S
Credit Agreement and the Original U.K. Credit Agreement, and the obligation of
each Lender to make its initial Credit Extension hereunder, is subject to the
condition that the Administrative Agent shall have received each of the
following, in form and substance satisfactory to the Administrative Agent, and
in sufficient copies for each Lender:
(a) Amended and Restated Credit Agreement. This Agreement duly
executed by each party hereto;
(b) Resolutions; Incumbency. With respect to each Borrower and
each Guarantor:
(i) copies of the resolutions of the board of directors of
such Person authorizing the execution and delivery of the Transaction
Documents to which it is a party and the transactions contemplated
thereby, certified by the Secretary or an Assistant Secretary of such
Person; and
(ii) a certificate of the Secretary or Assistant Secretary of
such Person, dated as of the Closing Date, and certifying the names and
true signatures of the officers of such Person authorized to execute,
deliver and perform, as applicable, this Agreement and all other Loan
Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents with respect to each Borrower and each Guarantor:
(i) articles or certificate of incorporation, memorandum and
articles of association, bylaws and board of directors resolutions of such
Person as then in effect, certified by the Secretary or Assistant
Secretary of such Person; and
(ii) a good standing certificate for such Person from the
Secretary of State (or similar, applicable Governmental Authority) of its
state of incorporation and each state where such Person is qualified to do
business as a foreign corporation as of a recent date, together with a
bring-down certificate by facsimile;
(d) Borrower Certificates. A certificate signed by a Responsible
Officer of each Borrower, dated as of the Closing Date:
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(i) stating that the representations and warranties
contained in Article VI are true and correct in all material respects on
and as of such date, as though made on and as of such date (except to the
extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier
date); and
(ii) stating that no Default or Event of Default exists or
would result from the Credit Extension to be made on the Closing Date;
(e) BHI Certificate. A certificate signed by a Responsible Officer
of BHI, dated as of the Closing Date:
(i) stating that the representations and warranties
contained in Article VI are true and correct in all material respects on
and as of such date, as though made on and as of such date (except to the
extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier
date); and
(ii) stating that no Default or Event of Default exists or
would result from the Credit Extension to be made on the Closing Date; and
(iii) stating that there has occurred since December 31, 2001,
no event or circumstance that has resulted or would reasonably be expected
to result in a materially adverse effect on the business, assets,
liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects of BHI or any of its Subsidiaries, except as
disclosed in financial statements referred to in Section 6.11(a) and on
Schedule 6.11;
(f) Environmental Review. Such environmental site assessments with
respect to the real property of BHI or any of its Subsidiaries as shall be
requested by the Administrative Agent; provided, that the Administrative Agent
agrees that it will not request as a condition to the effectiveness of this
Agreement any such site assessment with regard to property over which a mortgage
has been filed in favor of the Administrative Agent prior to the Closing Date
and provided further that any such site assessment for the Vonore, Tennessee
property shall not be required to be delivered until 120 days after the date
hereof.
(g) Financials.
A copy of the audited consolidated financial statements of CVS Holdings,
Inc. and its Subsidiaries for the fiscal year ended December 31, 2002;
(h) Reaffirmations of Collateral Documents. A fully executed copy
of the Reaffirmation Agreement, a fully executed copy of the Deed of
Confirmation and such other reaffirmations or confirmations of existing
Collateral Documents, executed by the applicable Loan Parties, as the
Administrative Agent may reasonably request.
(i) Collateral Documents. Collateral Documents executed by each
Loan Party in appropriate form for recording, where necessary, together with:
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(i) evidence satisfactory to the Administrative Agent that
there has been or will be filed, registered or recorded all filings,
registrations, recordings and UCC financing statements (including in-lieu
UCC financing statements), necessary and advisable to perfect the Liens of
the Administrative Agent for the benefit of the Administrative Agent, the
Issuers and the Lenders in accordance with applicable law;
(ii) a duly completed perfection certificate from each Loan
Party, in the form attached hereto as Exhibit I;
(iii) in the case of each U.K. Subsidiary of BHI that is a
Loan Party, searches from Companies House showing no encumbrances on the
charges registered with respect to such Person and in the case of each
U.S. Subsidiary of BHI, written advice relating to such Lien and judgment
searches as the Administrative Agent shall have requested, and such
termination statements or other documents as may be necessary to confirm
that the Collateral is subject to no other Liens in favor of any Person
(other than Permitted Liens);
(iv) all certificates and instruments representing the
Pledged Collateral and stock transfer powers executed in blank as the
Administrative Agent or the Lenders may specify;
(v) to the extent requested by the Administrative Agent,
funds sufficient to pay any filing or recording tax or fee in connection
with any and all UCC financing statements;
(vi) evidence that the Collateral Agent has been named as
loss payee under all policies of casualty insurance, and as additional
insured under all policies of liability insurance;
(vii) such consents, estoppels, subordination agreements,
waivers and other documents and instruments executed by landlords,
tenants, bailees, warehousemen and other Persons party to material
contracts relating to any Collateral located in the United States, except
Collateral constituting Excluded Offsite Inventory and Equipment
(including, without limitation, a duly executed landlord waiver with
respect to each parcel of leased real property of BHI and its Subsidiaries
located in the United States, in form and substance satisfactory to the
Administrative Agent) to which the Collateral Agent shall be granted a
Lien for the benefit of the Administrative Agent, the Issuers and the
Lenders, as reasonably requested by the Administrative Agent;
(viii) evidence that all other actions necessary or, in the
opinion of the Administrative Agent, desirable to perfect and protect the
first priority Liens (subject to Permitted Liens) created by the
Collateral Documents, and to enhance the Administrative Agent's ability to
preserve and protect its interests in and access to the Collateral, have
been taken; and
(ix) a fully executed First Amendment to Deed of Trust,
Security Agreement, Assignment of Leases and Rents and financing
statement, dated as of the date hereof, regarding the Deed of Trust,
Security Agreement, Assignment of Leases and
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Rents and Financing Statement dated as of March 31, 2000 and recorded on
April 6, 2000 as Document No. 2000-022116 in the Office of the County
Clerk of Clackamas County, Oregon;
(j) Legal Opinions. An opinion addressed to the Administrative
Agent and the Lenders, dated as of the Closing Date, (i) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, as
special U.S. counsel to BHI, the Company, CVS Holdings Ltd., ▇▇▇▇▇▇▇ Ltd.,
▇▇▇▇▇▇▇ International, KAB Seating, NSC, CVS Holdings, Inc. and CVS, Inc., (iii)
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, as special English counsel to the Company, KAB Seating, CVS
Holdings Ltd., ▇▇▇▇▇▇▇ Ltd. and each other U.K. Subsidiary of BHI that is a
Guarantor; (iv) of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as special English counsel to the Company,
KAB Seating, CVS Holdings Ltd., ▇▇▇▇▇▇▇ Ltd. and each other U.K. Subsidiary of
BHI that is a Guarantor, and (v) of Mayer, Brown, ▇▇▇▇ & Maw, special English
counsel to the Administrative Agent, each in form and substance reasonably
satisfactory to the Administrative Agent;
(k) Solvency Certificates. A written solvency certificate from the
chief financial officer of BHI in the form of Exhibit F-1, dated as of the
Closing Date, with respect to the Solvency of BHI, and a written solvency
certificate dated as of the Closing Date with respect to the Company, KAB
Seating, NSC, and CVS, Inc., each on a stand-alone basis, certified by the chief
financial officer of each such Borrower, in the form of Exhibit F-2, Exhibit
F-3, Exhibit F-4 and Exhibit F-5, respectively;
(l) Completion of the Merger. The Administrative Agent shall have
received a certificate executed by a Responsible Officer of BHI certifying that
the Merger has been completed;
(m) Management Agreement. The Administrative Agent shall have
received a true and correct copy of the Management Agreement as in effect on the
Closing Date, certified as such by a Responsible Officer of BHI; and
(n) Payment of Fees. The Administrative Agent shall have received
evidence of payment (in the form of a check or wire transfer confirmation
number) by BHI and the Company of all accrued and unpaid fees, costs and
expenses to the extent then due and payable, together with Attorney Costs of
Bank of America to the extent invoiced prior to or on the Closing Date,
including any such costs, fees and expenses arising under or referenced in
Sections 2.11 and 11.04.
5.02 Conditions to All Credit Extensions.
The obligation of each Lender to make any Loan to be made by it (including
its initial Loan) and the obligation of an Issuer to Issue, renew or amend any
Letter of Credit (including the existing Letters of Credit) is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date or Issuance Date:
(a) Notice, Application. The Administrative Agent shall have
received (with, in the case of the initial Loans only, a copy for each Lender) a
Notice of Borrowing or, in the case of any Issuance of any Letter of Credit, the
applicable Issuer and the Administrative Agent
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shall have received an L/C Application or L/C Amendment Application, as required
under Section 3.02.
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct in all
material respects on and as of such Borrowing Date or Issuance Date with the
same effect as if made on and as of such Borrowing Date or Issuance Date (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result after giving effect to such Borrowing, continuation,
conversion or Issuance.
Each Notice of Borrowing, L/C Application or L/C Amendment
Application submitted by, or on behalf of, a Borrower shall constitute a
representation and warranty by such Borrower, as of the date of each such notice
and as of each Borrowing Date or Issuance Date, as applicable, that the
conditions in this Section 5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
BHI and each Borrower represent and warrant to the Administrative Agent,
the Collateral Agent and each Lender that:
6.01 Corporate Existence and Power.
Each Loan Party:
(a) is a corporation, company or limited partnership, limited
liability company or unlimited liability company, as the case may be, duly
organized or formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, formation or organization;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, to carry on its
business in all material respects and to execute, deliver, and perform its
obligations under the Transaction Documents to which it is a party;
(c) is duly qualified as a foreign or extra provincial corporation
and is licensed and in good standing under the laws of each jurisdiction where
failure to be so qualified or licensed would reasonably be expected to have a
Material Adverse Effect; and
(d) is in compliance with all Requirements of Law; except, in each
case referred to in clause (c) or clause (d), to the extent that the failure to
do so would not reasonably be expected to have a Material Adverse Effect.
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6.02 Corporate Authorization; No Contravention.
The execution, delivery and performance by BHI and its Subsidiaries of
this Agreement and each other Transaction Document to which such Person is
party, have been duly authorized by all necessary corporate or partnership or
similar action, and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any material Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Person or its property is
subject; or
(c) violate any Requirement of Law.
6.03 Governmental Authorization.
No material approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority (except those that
have been obtained and remain in effect and for recordings or filings in
connection with the Liens granted to the Collateral Agent under the Collateral
Documents, compliance with securities laws and other laws regarding disposition
of collateral or releases of Liens) is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, BHI or any of
its Subsidiaries of the Agreement or any other Transaction Document other than
those approvals, consents, exemptions and authorizations which have already been
obtained, other than the registration of certain of the Collateral Documents as
required by Section 395 of the Companies Act.
6.04 Binding Effect.
This Agreement and each other Loan Document to which BHI or any of its
Subsidiaries is a party constitute the legal, valid and binding obligations of
BHI and any of its Subsidiaries to the extent it is a party thereto, enforceable
against such Person in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.05 Litigation.
(a) There are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of BHI or any Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against BHI or any of its Subsidiaries or any of their respective
properties:
(i) which purport to affect or pertain to this Agreement,
any other Transaction Document or the Merger, or any of the transactions
contemplated hereby or thereby; or
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(ii) if determined adversely to BHI or any of its
Subsidiaries would reasonably be expected to have a Material Adverse
Effect.
(b) No injunction, writ, temporary restraining order or any order
of any nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance of this
Agreement, any other Transaction Document or the Merger, or directing that the
transactions provided for herein or therein not be consummated as herein or
therein provided.
6.06 No Default.
No Default or Event of Default exists or would result from the incurring
of any Obligations by any Loan Party or from the grant or perfection of the
Liens of the Collateral Agent and the Lenders on the Collateral. As of the
Closing Date, no Loan Party nor any of their Subsidiaries is in default under or
with respect to any Contractual Obligation or any Transaction Document in any
respect which, individually or together with all such defaults, could reasonably
be expected to have a Material Adverse Effect, or that would, if such default
had occurred after the Closing Date, create an Event of Default under Section
9.01(e).
6.07 ERISA Compliance.
Except as specifically disclosed in Schedule 6.07:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Company, nothing has occurred which would cause the loss of such qualification.
BHI and each ERISA Affiliate has made all required contributions to any Plan
subject to Section 412 of the Code, and no application for a funding waiver or
an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of BHI,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or would reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or would reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
BHI nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) neither BHI
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither BHI nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section
4069 or 4212(c) of ERISA.
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(d) Each Non-U.S. Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither BHI
nor any of its Subsidiaries has incurred any obligation in connection with the
termination of or withdrawal from any Non-U.S. Pension Plan. The present value
of the accumulated benefit obligations (whether or not vested) under each
Non-U.S. Pension Plan, determined as of the end of BHI's most recently ended
fiscal year on the basis of actuarial assumptions, each of which is reasonable,
did not exceed the current value of the assets of such Non-U.S. Pension Plan
allocable to such benefit liabilities by more than 2,500,000 Sterling.
6.08 Use of Proceeds; Margin Regulations.
The proceeds of the Loans are to be used solely for the purposes set forth
in and permitted by Section 7.12 and Section 8.07. Neither BHI nor any
Subsidiary is generally engaged in the business of purchasing or selling Margin
Stock or extending credit for the purpose of purchasing or carrying Margin
Stock.
6.09 Title to Properties.
BHI and each of its Subsidiaries have good record and marketable title in
fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of their respective businesses, except for such
defects in title as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. As of the Closing Date, the property
of BHI and its Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 Taxes.
BHI and its Subsidiaries have filed all U.S. federal and other material
tax returns and reports required to be filed, and have paid, collected,
withheld, deducted and remitted to the appropriate governmental authority all
U.S. and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets or otherwise
due and payable, or required to be collected, withheld, deducted or remitted
when due and payable except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against BHI, the
Company or any Subsidiary that would, if made, have a Material Adverse Effect.
6.11 Financial Condition.
(a) (i) Attached hereto as Schedule 6.11 is a true and correct
copy of the audited consolidated financial statements of CVS Holdings, Inc. and
its Subsidiaries for the fiscal year ended December 31, 2002, together with the
opinion thereon of Deloitte Touche Tohmatsu, independent certified public
accountants, a copy of which is contained in Schedule 6.11(a), and, to the
knowledge of BHI and the Borrowers, such financial statements fairly present in
all material respects the financial condition of BHI and its Subsidiaries as at
such date and of the profit and cash flows of BHI and its Subsidiaries for the
period then ended and have been properly prepared in accordance with GAAP.
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(ii) Attached hereto as Schedule 6.11 is a true and correct
copy of (x) the audited consolidated financial statements of CVS Holdings Ltd.,
for the fiscal year ended December 31, 2001, together with the opinion thereon
of Deloitte Touche Tohmatsu, independent certified public accountants, a copy of
which is contained in Schedule 6.11(a)(iii), and (y) unaudited consolidated
financial statements of such Person for each of the first three fiscal quarters
of 2002 and, to the knowledge of BHI and the Borrowers, such financial
statements fairly present in all material respects the financial condition of
CVS Holdings Ltd. and its Subsidiaries as at such date and of the profit and
cash flows of CVS Holdings Ltd. and its Subsidiaries for the period then ended
and have been properly prepared in accordance with GAAP.
(b) Except as reflected in the financial statements and the notes
related thereto delivered pursuant to Section 6.11(a) and on Schedule 6.11 there
were as of the Closing Date (and after giving effect to the Transaction and the
other transactions contemplated hereby) no liabilities or obligations with
respect to BHI and its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, would be material to BHI and its Subsidiaries. As
of the Closing Date (and after giving effect to the Transaction and the other
transactions contemplated hereby), the Company does not know of any basis for
the assertion against BHI or any of its Subsidiaries of any liability or
obligation of any nature whatsoever that is not reflected in the financial
statements or the notes related thereto delivered pursuant to Section 6.11(a) or
on Schedule 6.11 which, either individually or in the aggregate, could be
material to BHI and its Subsidiaries.
(c) Since December 31, 2001, there has been no Material Adverse
Effect except as disclosed in financial statements referred to in Section
6.11(a) and on Schedule 6.11 hereto.
(d) Since December 31, 2001, there has been (a) no material
adverse change in, or material adverse effect upon, the operations, business,
properties or condition (financial or otherwise) of CVS Holdings Ltd. and its
Subsidiaries taken as a whole; or (b) a material impairment of the ability of
CVS Holdings Ltd. and its Subsidiaries taken as a whole to perform any material
obligation under any Loan Document and to avoid any Event of Default.
(e) Since December 31, 2002, there has been (a) no material
adverse change in, or material adverse effect upon, the operations, business,
properties or condition (financial or otherwise) of CVS Holdings, Inc. and its
Subsidiaries taken as a whole; or (b) a material impairment of the ability of
CVS Holdings, Inc. and its Subsidiaries taken as a whole to perform any material
obligation under any Loan Document and to avoid any Event of Default.
6.12 Environmental Matters.
(a) The on-going operations of BHI and each of its Subsidiaries
comply in all respects with all Environmental Laws, except such non-compliance
which would not (if enforced in accordance with applicable law) reasonably be
expected to have a Material Adverse Effect.
(b) BHI and each of its Subsidiaries have obtained all licenses,
permits, authorizations and registrations required under any Environmental Law
("Environmental
84
Permits") and necessary for their respective ordinary course operations, all
such Environmental Permits are in good standing, and BHI and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits except such failure to obtain or to comply with such
Environmental Permits which would not reasonably be expected to have a Material
Adverse Effect.
(c) Neither BHI, nor any of its Subsidiaries or any of their
respective present property or operations, is subject to any outstanding written
order from or agreement with any Governmental Authority, nor subject to (i) any
judicial or docketed administrative proceeding, in each case, respecting any
Environmental Law, Environmental Claim or Hazardous Material or (ii) any claim,
proceeding or written notice from any Person, in each case regarding any
Environmental Law, Environmental Claim or Hazardous Material, except for any of
the foregoing which would not reasonably be expected to have a Material Adverse
Effect.
(d) There are no Hazardous Materials or other conditions or
circumstances existing with respect to any property of BHI or any of its
Subsidiaries, or arising from operations prior to the Closing Date, of BHI or
any of its Subsidiaries that would reasonably be expected to give rise to
Environmental Claims that would reasonably be expected to have a Material
Adverse Effect. In addition, (i) neither BHI nor any of its Subsidiaries has any
underground storage tanks (x) that are not properly registered or permitted
under applicable Environmental Laws, or (y) that are leaking or disposing of
Hazardous Materials off-site, which in any such case would reasonably be
expected to have a Material Adverse Effect, and (ii) BHI and its Subsidiaries
have met all notification requirements under applicable Environmental Laws where
the failure to comply with such notification would reasonably be expected to
result in liability to BHI and its Subsidiaries of $1,000,000 or more in the
aggregate at any time during the term of this Agreement.
6.13 Collateral Documents.
(a) The provisions of each of the Collateral Documents are
effective to create in favor of the Collateral Agent for the benefit of the
Administrative Agent, the Issuers and the Lenders, a legal, valid and
enforceable first priority security interest in all right, title and interest of
BHI and its Subsidiaries in the collateral described therein, subject only to
any Permitted Liens. As of the Closing Date, the Collateral Agent will have a
first priority (subject only to Permitted Liens) perfected security interest,
for the benefit of the Administrative Agent, the Issuers and the Lenders, in all
Collateral in which a security interest may be perfected by means of the filing
of a financing statement pursuant to the UCC.
(b) Each Mortgage, if any, when executed and delivered will be
effective to grant to the Collateral Agent for the benefit of the Administrative
Agent, the Issuers and the Lenders a legal, valid and enforceable lien on all
the right, title and interest of the mortgagor under such Mortgage in the
mortgaged property described therein. When each such Mortgage is duly recorded
in the offices specified in or listed on the schedule to such Mortgage and the
mortgage recording fees and taxes in respect thereof are paid and compliance is
otherwise had with the formal requirements of state law applicable to the
recording of real estate mortgages generally, each such mortgaged property,
subject to the encumbrances and exceptions to title set forth therein and any
Permitted Liens and except as noted in the title policies delivered to the
85
Administrative Agent, is subject to a legal, valid, enforceable and perfected
first priority lien; and when financing statements have been filed in the
offices specified in such Mortgage, such Mortgage also creates a legal, valid,
enforceable and perfected first lien on, and security interest in, all right,
title and interest of BHI or its Subsidiary under such Mortgage in all personal
property and fixtures covered by such Mortgage, subject to no other Liens,
except the encumbrances and exceptions to title set forth therein and except as
noted in the title policies delivered to the Administrative Agent and Permitted
Liens.
6.14 Regulated Entities.
None of BHI, the Company, any Person controlling BHI, or any Subsidiary,
is an "Investment Company" within the meaning of the Investment Company Act of
1940. None of BHI, the Company, any Person controlling BHI, or any Subsidiary is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any state public utilities code,
or any other Federal or state statute or regulation limiting its ability to
incur Indebtedness.
6.15 No Burdensome Restrictions.
Neither BHI nor any of its Subsidiaries is a party to or bound by any
Contractual Obligation, or subject to any restriction in any Organization
Document, or any Requirement of Law, which would reasonably be expected to have
a Material Adverse Effect.
6.16 Copyrights, Patents, Trademarks and Licenses, etc.
BHI and its Subsidiaries own or are licensed or otherwise have the right
to use all of the patents, trademarks, service marks, trade names, copyrights,
and other rights that are reasonably necessary for the operation of their
respective businesses, without, to BHI's or any Subsidiary's knowledge, conflict
with the rights of any other Person, which conflict would reasonably be expected
to have a Material Adverse Effect. To the best knowledge of BHI and each Loan
Party, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by BHI or any Subsidiary infringes upon any rights held by any other
Person, which infringement would reasonably be expected to have a Material
Adverse Effect. Except as disclosed in Schedule 6.05, no claim or litigation
regarding any of the foregoing is pending or, to the knowledge of BHI or any
Loan Party, threatened.
6.17 Capitalization; Subsidiaries.
As of the Closing Date, no Loan Party has any Subsidiaries other than
those specifically disclosed in part (a) of Schedule 6.17 hereto and has no
equity investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 6.17. All of the issued and
outstanding capital stock of each Loan Party and each of its Subsidiaries is
owned by each of the stockholders named on Schedule 6.17. Except as set forth on
Schedule 6.17, there are no outstanding rights to purchase, options, warrants or
similar rights or agreements pursuant to which a Loan Party may be required to
issue or sell any capital stock or other equity security.
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6.18 Insurance.
Except as disclosed in Schedule 6.18, the properties of BHI and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of BHI, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and are similarly situated.
6.19 Swap Obligations.
Neither BHI nor any of its Subsidiaries has incurred any outstanding
obligations under any Swap Contracts, other than Permitted Swap Obligations. BHI
has undertaken its own independent assessment of its consolidated assets,
liabilities and commitments and has considered appropriate means of mitigating
and managing risks associated with such matters and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in determining whether to
enter into any Swap Contract.
6.20 Consummation of Transaction.
The Company has delivered to the Administrative Agent true, complete and
correct copies of the Merger Documents (including all schedules, exhibits,
annexes, amendments, supplements, modifications and all other documents
delivered pursuant thereto or in connection therewith). The Merger Documents as
originally executed and delivered by the parties thereto have not been amended,
waived, supplemented or modified except as permitted by this Agreement. The
representations and warranties of the parties set forth therein (with respect to
any party other than BHI and its Subsidiaries, to the best knowledge of BHI) are
true and correct in all material respects as of the date thereof. On the date of
this Agreement, neither BHI nor any other party to any of the Merger Documents
is in default in the performance of or compliance with any material provisions
under the Merger Documents. The Merger is being consummated contemporaneously
with the Closing Date in accordance with the Merger Documents and applicable
laws and regulations.
6.21 Solvency.
BHI and its Subsidiaries, on a consolidated basis and, in the case of its
Subsidiaries incorporated in England and Wales, on an individual basis, are
Solvent.
6.22 Location of Real Property.
(a) Schedule 6.22(a) sets forth completely and correctly as of the
Closing Date all real property owned by BHI or any of its Subsidiaries, the
applicable owner thereof, the addresses thereof and the county or counties in
which such properties are situated. All of the real property set forth on
Schedule 6.22(a) is owned in fee by BHI or one of its Subsidiaries.
(b) Schedule 6.22(b) sets forth completely and correctly as of the
Closing Date all real property leased by BHI or any of its Subsidiaries, the
applicable lessee thereof, the addresses thereof and the county or counties in
which such properties are situated. BHI or one of its Subsidiaries has a valid
lease in all of the real property set forth on such Schedule 6.22(b).
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6.23 Full Disclosure.
None of the representations or warranties made by any Loan Party in the
Loan Documents as of the date such representations and warranties are made or
deemed made, and none of the statements when taken as a whole contained in any
exhibit, report, statement or certificate furnished by or on behalf of BHI or
any Subsidiary in connection with the Loan Documents (including the offering and
disclosure materials delivered by or on behalf of any Loan Party to the Lenders
prior to the Closing Date), contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not materially misleading as of the time when made or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation (other than Obligations with respect to indemnification
hereunder not due and payable) shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, unless the Required Lenders waive compliance
in writing:
7.01 Financial Statements.
BHI shall deliver, or cause to be delivered, to the Administrative Agent
(with sufficient copies for each Lender):
(a) as soon as available, but not later than 90 days after the end
of each fiscal year (commencing with the fiscal year ended December 31, 2003), a
copy of the audited consolidated balance sheet of BHI and its Subsidiaries as at
the end of such year and the related consolidated statements of income,
shareholders' equity and cash flows for such year, setting forth, commencing
January 1, 2004, in each case in comparative form the figures for the previous
fiscal year, and accompanied by the opinion of Deloitte Touche Tohmatsu or
another nationally-recognized independent public accounting firm ("Independent
Auditor") which report shall state that such consolidated financial statements
present fairly in all material respects the financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years;
(b) as soon as available, but not later than 45 calendar days
after the end of each of the first three fiscal quarters of each fiscal year
(commencing with the fiscal quarter ended March 31, 2003), a copy of the
unaudited consolidated balance sheet of BHI and its Subsidiaries as of the end
of such fiscal quarter and the related consolidated statements of income,
shareholders' equity and cash flows for the period commencing on the first day
and ending on the last day of such fiscal quarter, and certified by a
Responsible Officer of BHI as fairly presenting in all material respects, in
accordance with GAAP (subject to ordinary, good faith year-end audit adjustments
and the absence of footnotes), the financial position and the results of
operations of BHI and its Subsidiaries; provided, that the financial statements
to be
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delivered pursuant to this clause (b) for the fiscal quarter ended March 31,
2003 shall consist of a balance sheet only; and
(c) as soon as available, but not later than 20 days after the end
of each calendar month (excluding the calendar month ended December 31 of each
calendar year), a consolidating monthly income statement and a consolidated
monthly balance sheet for BHI and its Subsidiaries for such month, certified by
a Responsible Officer of the Company and prepared in accordance with GAAP
(subject to ordinary, good faith adjustments and absence of footnotes), together
with a management performance overview and discussion, a comparison to plan and
forecast of operations and cash flow for the remainder of the fiscal year.
7.02 Certificates; Other Information.
BHI shall furnish to the Administrative Agent (with sufficient copies for
each Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.01(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate (it being understood that such certificate may be limited to
accounting matters and disclaim responsibility for legal interpretation);
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.01(a) and (b), a Compliance Certificate executed by
a Responsible Officer of BHI;
(c) concurrently with the delivery of the financial statements
referred to in subsection 7.01(a), (1) a consolidating balance sheet and income
statement for such year (which need not be audited) and, in the case of such
income statement, setting forth in comparative form the figures for the previous
fiscal year, and (ii) projections (in form and substance reasonably satisfactory
to the Administrative Agent) covering the quarterly periods from the beginning
of such fiscal year through the end of such fiscal year, prepared in reasonable
detail, with appropriate presentation and discussion of the principal
assumptions upon which such projections are based;
(d) promptly, copies of all financial statements and reports that
BHI or any of its Subsidiaries send to their respective shareholders, generally,
and copies of all financial statements and regular, periodic or special reports
(including Forms 10K, 10Q and 8K, if appropriate) that BHI or any of its
Subsidiaries may make to, or file with, the SEC;
(e) promptly after the end of each calendar month, but in no case
more than twenty calendar days after the end of each calendar month, and at such
times during the occurrence of an Event of Default as shall reasonably be
requested by the Administrative Agent, a Borrowing Base Certificate; provided
that, with regard to December of each year, BHI shall only be obligated to
deliver the Borrowing Base Certificate within 45 calendar days after the end of
such month;
(f) by the twentieth calendar day after the end of each calendar
month of 2003, and at such times during the occurrence of an Event of Default as
shall reasonably be requested by the Administrative Agent, an EBITDA
Certificate, which EBITDA Certificate shall
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state EBITDA for the month most recently ended and EBITDA for the period from
January 1 of the current calendar year to the last day of the calendar month
then most recently ended; provided that, with regard to December of each year,
BHI shall only be obligated to deliver the EBITDA Certificate within 45 calendar
days after the end of such month; and
(g) promptly such additional information regarding the business,
financial or corporate affairs of BHI or any of its Subsidiaries as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
7.03 Notifications.
BHI shall promptly notify the Administrative Agent (with sufficient copies for
each Lender)
(a) upon a Responsible Officer of BHI or any Loan Party obtaining
knowledge of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or would reasonably be
expected to result in a Material Adverse Effect, including, to the extent so
applicable, (i) any breach or non-performance of, or any default under, a
Contractual Obligation of BHI or any of its Subsidiaries; (ii) any dispute,
litigation, investigation, proceeding or suspension between BHI or any of its
Subsidiaries and any Governmental Authority; or (iii) the commencement of, or
any material development in, any litigation or proceeding affecting BHI or any
of its Subsidiaries including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any of the following events affecting any
Loan Party or any ERISA Affiliate (but in no event more than 10 days after such
event becomes known to an officer of such Loan Party), and deliver to the
Administrative Agent and each Lender a copy of any notice with respect to such
event that is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to any Loan Party or any ERISA Affiliate with respect to
such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of
any Pension Plan;
(iii) the adoption of, or the commencement of contributions
to, any Plan subject to Section 412 of the Code or any Non-U.S. Pension
Plan by any Loan Party or any ERISA Affiliate resulting in a material
contribution obligation; or
(iv) the adoption of any amendment to a Non-U.S. Pension Plan
or a Plan subject to Section 412 of the Code, if such amendment results in
a material increase in contributions or Unfunded Pension Liability.
(d) of any material change in accounting policies or financial
reporting practices by BHI or any of its consolidated Subsidiaries; and
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(e) upon, but in no event later than 15 days after, any officer of
any Loan Party becoming aware of (i) any and all enforcement, investigation,
cleanup, removal or other governmental or regulatory actions instituted,
completed or threatened against or any Loan Party or any of their respective
properties pursuant to any applicable Environmental Laws, and all other
Environmental Claims which would reasonably be expected to result in potential
liability of BHI or any of its Subsidiaries of $1,000,000 or more, and (ii) any
environmental condition on any real property adjoining or in the vicinity of the
property of BHI or any of its Subsidiaries that would reasonably be expected to
cause such property of such Person or any part thereof to be subject to any
material restrictions on the ownership, occupancy, transferability or use of
such property under any Environmental Laws.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer of BHI setting forth details of the
occurrence referred to therein, and stating what action BHI or any affected
Subsidiary of BHI proposes to take with respect thereto and at what time.
7.04 Preservation of Corporate Existence, Etc.
Except for any merger or amalgamation permitted under Section 8.03, BHI
shall, and shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate,
partnership, limited liability company or other existence and good standing
under the laws of its state or jurisdiction of incorporation, organization or
formation, except to the extent otherwise expressly permitted herein;
(b) preserve and maintain in full force and effect all material
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business except in connection
with transactions permitted by Section 8.03 and sales of assets permitted by
Section 8.02; and
(c) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which would reasonably be
expected to have a Material Adverse Effect.
Each Loan Party shall cause each of its Subsidiaries which is a Wholly-Owned
Subsidiary as of the date hereof to continue to exist as a Wholly-Owned
Subsidiary so long as it shall be a Subsidiary.
7.05 Maintenance of Property.
Each Loan Party shall maintain, and shall cause each of their respective
Subsidiaries to maintain, and preserve all its property which is used or useful
in its business in good working order and condition, ordinary wear and tear and
damage by casualty excepted, and make all necessary repairs thereto and renewals
and replacements thereof except where the failure to do so would not reasonably
be expected to have a Material Adverse Effect.
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7.06 Insurance.
In addition to insurance requirements set forth in the Collateral
Documents, each Loan Party shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons including workers'
compensation insurance, public liability and property and casualty insurance
which amount shall not be materially reduced by such Loan Party in the absence
of 30 days' prior written notice to the Administrative Agent. All casualty
insurance maintained by each Loan Party shall name the Collateral Agent or
Administrative Agent as loss payee and all liability insurance shall name the
Collateral Agent or Administrative Agent as additional insured for the benefit
of the Administrative Agent, the Issuers and the Lenders, as their interests may
appear. Upon request of the Administrative Agent or any Lender, each Loan Party
shall furnish the Administrative Agent, with sufficient copies for each Lender,
at reasonable intervals (but not more than once per calendar year) a certificate
of a Responsible Officer of such Loan Party (and, if requested by the
Administrative Agent, any insurance broker of such Loan Party) setting forth the
nature and extent of all insurance maintained by such Loan Party and its
Subsidiaries in accordance with this Section 7.06 or any Collateral Documents
(and which, in the case of a certificate of a broker, were placed through such
broker).
7.07 Payment of Obligations.
Each Loan Party shall, and shall cause each of its Subsidiaries to, pay
and discharge as the same shall become due and payable:
(a) all federal and other material tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets, unless
the same are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by such Loan
Party or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its property in violation of Section 8.01 unless the same are being
contested in good faith by appropriate proceedings diligently pursued and
adequate reserves in accordance with GAAP are being maintained by such Loan
Party or such Subsidiary; and
(c) all other obligations and liabilities which, if unpaid, would
have a Material Adverse Effect.
7.08 Compliance with Laws.
Each Loan Party shall comply, and shall cause each of its Subsidiaries to
comply, with all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair Labor Standards
Act), except to the extent that the failure to do so would not reasonably be
expected to have a Material Adverse Effect.
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7.09 Compliance with ERISA.
Each Loan Party shall, and shall cause each of its ERISA Affiliates to (if
applicable): (a) maintain each Plan and Non-U.S. Pension Plan in compliance in
all material respects with applicable law; (b) cause each Plan which is
qualified under Section 401(a) of the Code to maintain such qualification; and
(c) make all required contributions to any Plan subject to Section 412 of the
Code and any Non-U.S. Pension Plan; to the extent that any failure to comply
with any such provision would reasonably be expected to result in liabilities in
excess of $1,000,000 for all such failures in the aggregate.
7.10 Inspection of Property and Books and Records.
Each Loan Party shall maintain and shall cause each of its Subsidiaries to
maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of such
Loan Party and such Subsidiary. Each Loan Party shall permit, and shall cause
each of its Subsidiaries to permit, representatives and independent contractors
of the Administrative Agent or any Lender to visit and inspect any of their
respective properties, to examine their respective inventory, to examine their
respective corporate, financial and operating records, including records of all
receivables, and to make copies thereof or abstracts therefrom, and to discuss
their respective affairs, finances and accounts with their respective directors,
officers, and independent public accountants, all at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to Person; provided, that so long as no Event of
Default exists and is continuing, Administrative Agent may perform no more than
one field audit each fiscal year; provided, further, that at all times that an
Event of Default exists, (i) each Loan Party shall permit, and shall cause each
of its Subsidiaries to permit, representatives and independent contractors of
the Administrative Agent or any Lender to visit and inspect, in addition to the
above, any of their manufacturing facilities, and to discuss their respective
affairs, finances, operations and facilities with their respective directors,
officers, and independent public accountants and (ii) the Administrative Agent
or any Lender may take any of the actions set forth in this proviso at any time
during normal business hours and without advance notice. Any visit or inspection
made pursuant to this Section 7.10 at any time that any Event of Default exists
shall be made at the expense of the Loan Party whose property is being
inspected.
7.11 Environmental Laws.
(a) Each Loan Party shall, and shall cause each of its
Subsidiaries to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except such noncompliance which would
not reasonably be expected to have a Material Adverse Effect.
(b) Upon the written request of the Administrative Agent or any
Lender, a Loan Party shall submit and cause each of its Subsidiaries to submit,
to the Administrative Agent with sufficient copies for each Lender, at such Loan
Party's sole cost and expense, at reasonable intervals, a report providing an
update of the status of any environmental, health or safety compliance, hazard
or liability issue identified in any notice or report required pursuant to
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subsection 7.03(e), that could individually or in the aggregate, result in
liability in excess of $1,000,000 (net of any payments under insurance policies
or indemnity agreements which the Loan Party or such Subsidiary reasonably
expects to receive).
7.12 Use of Proceeds.
(a) Proceeds of the Revolving Loans and Swing Line Loans shall be
utilized (i) to continue the Revolving Loans outstanding on the Closing Date
under the Original U.S. Credit Agreement and the Original UK Credit Agreement,
(ii) for working capital and other general corporate purposes (other than for
the purpose of financing any Acquisition, unless the Required Lenders shall have
given their prior written consent thereto) and (iii) to repay any drawing under
a Letter of Credit, in each case not in contravention of any Requirement of Law
or of any Loan Document.
(b) Proceeds of all Existing Term Loans shall be utilized to
continue the Term Loans outstanding on the Closing Date under the Original U.S.
Credit Agreement and the Original UK Credit Agreement.
(c) Proceeds of all NSC Term Loans shall be utilized to repay any
drawing under the Existing Fleet Letter of Credit.
(d) Proceeds of all Sterling Term Loans shall be utilized (i) to
repay any drawing under the Loan Note Credit Support and (ii) to repay any Loan
Notes to the extent the holder thereof has demanded payment or payment is
otherwise due.
7.13 Further Assurances; Additional Pledge; Additional Collateral
Documents.
(a) Each Loan Party shall ensure that all written information,
exhibits and reports furnished to the Administrative Agent or the Lenders, taken
as a whole, do not and will not contain any untrue statement of a material fact
and do not and will not omit to state any material fact or any fact necessary to
make the statements contained therein not misleading in any material respect in
light of the circumstances in which made, and upon learning thereof, a
Responsible Officer of such Loan Party will promptly disclose to the
Administrative Agent and the Lenders and correct any defect or error that may be
discovered therein or in any Loan Document or in the execution, acknowledgment
or recordation thereof.
(b) Effective upon any Person becoming a Subsidiary of a Loan
Party (other than a Foreign 956 Subsidiary), the shareholder or shareholders
thereof shall pledge the stock or other equity interests thereof to the
Collateral Agent pursuant to documentation reasonably acceptable to the
Collateral Agent, to the extent permitted by applicable law.
(c) Subject to Sections 7.14 and 7.15, promptly upon request by
the Administrative Agent or the Required Lenders, each Loan Party, to the extent
permitted by applicable law, shall do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, any and all such further
acts, deeds, conveyances, security agreements, mortgages, assignments, estoppel
certificates, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments the Administrative Agent or such Lenders, as the case may be, may
reasonably
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require from time to time in order (i) to carry out more effectively the
purposes of this Agreement or any other Loan Document, (ii) to subject to the
Liens created by any of the Collateral Documents any of the properties, rights
or interests covered by any of the Collateral Documents, (iii) to perfect and
maintain the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby and (iv) to better
assure, convey, grant, assign, transfer, preserve, protect and confirm to the
Administrative Agent, the Issuers and Lenders the rights granted or now or
hereafter intended to be granted to the Lenders under any Loan Document or under
any other document executed in connection therewith.
(d) In addition to any documents delivered in connection with the
other provisions of this Section 7.13, within 120 calendar days after the
Closing Date, CVS, Inc. shall deliver or cause to be delivered to the
Administrative Agent one or more fully executed Mortgages in favor of the
Collateral Agent, in form and substance satisfactory to the Administrative Agent
and the Collateral Agent, over all real property owned by CVS, Inc., including
the real property owned by CVS, Inc. in Vonore, Tennessee, together with all
surveys, title policies and other documents related thereto as the
Administrative Agent may request.
(e) In addition to any documents delivered in connection with the
other provisions of this Section 7.13, within 30 calendar days after the Closing
Date, CVS, Inc. shall deliver or cause to be delivered to the Administrative
Agent (i) a title policy, or a date-down of a title policy previously delivered
to the Administrative Agent, in form and substance satisfactory to the
Administrative Agent, relating to the property encumbered by the Deed of Trust,
Security Agreement, Assignment of Leases and Rents and Financing Statement dated
as of March 31, 2000 and recorded on April 6, 2000 as Document No. 2000-022116
in the Office of the County Clerk of Clackamas County, Oregon, as amended,
showing no liens or encumbrances other than Permitted Liens, (ii) the results of
searches made in each county in which each item of real property located in the
United States owned by any Loan Party is located, showing all fixture filings
that are on record in such county naming such Loan Party, (iii) a deposit
account control agreement, in form and substance satisfactory to the
Administrative Agent, executed by each bank at which any Loan Party organized in
the United States has an account, and each bank at which any Loan Party
organized in the United Kingdom has an account located in the United States and
(iv) evidence that each of the UCC financing statements identified with an
asterisk on Schedule 8.01 have been terminated.
7.14 Additional Guaranties and Personal Property Pledge.
Effective upon any Person becoming a Subsidiary of a Loan Party (other
than a Foreign 956 Subsidiary) and subject to compliance with applicable law,
such Person shall join as a guarantor under the Collateral Documents pursuant to
amendments thereto in form and substance acceptable to the Administrative Agent
and any intercompany note issued to any Loan Party shall be pledged to the
Collateral Agent pursuant to a Pledge Agreement. The Borrower Representative
shall promptly notify the Administrative Agent at any time at which, in
accordance with this Section 7.14, any Subsidiary shall be required to join as a
guarantor under the Collateral Documents.
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7.15 Additional Real Property.
Concurrent with (a) the acquisition of a fee simple ownership interest by
a Loan Party of any parcel of real property which has a fair market value in
excess of $1,000,000 or (b) the acquisition or lease by a Loan Party of any
parcel of property which, in the Administrative Agent's reasonable
determination, is otherwise of significant value to the operations of such
Person, unless the Required Lenders shall otherwise direct, such Loan Party
shall, to the extent permitted under the terms of such lease or financing, or
shall cause such Subsidiary to, execute and deliver to the Administrative Agent
a Mortgage on such parcel or leasehold substantially in form and substance
reasonably acceptable to the Administrative Agent, together with such other
customary closing items as are requested by the Administrative Agent such as
surveys, title insurance and local counsel opinions, in each case in form and
substance reasonably acceptable to the Administrative Agent.
7.16 Additional Capital. In the event that BHI is not in compliance with
Sections 8.15 and 8.16 for any fiscal quarter ending after the Closing Date,
within ten days after delivery by BHI of its Compliance Certificate for such
fiscal quarter, together with the financial statements to which such certificate
relates pursuant to Section 7.02(b), BHI shall use its best efforts to obtain
cash proceeds ("Additional Capital") from the issuance of unsecured
Indebtedness; provided that any such unsecured Indebtedness shall be issued on
terms substantially similar to the subordinated promissory notes issued by BHI
on September 30, 2002. To the extent such Additional Capital is raised, such
Additional Capital shall be in an amount sufficient to bring BHI into compliance
with Sections 8.15 and 8.16 for such fiscal quarter (but in any event shall be
issued in a minimum amount of not less than $250,000) and shall be evidenced by
a revised Compliance Certificate executed by a Responsible Officer of BHI and
delivered within such ten day period, together with such other documents as the
Administrative Agent may reasonably request in connection therewith. Such
revised Compliance Certificate shall also be accompanied by a statement of the
amount of such Additional Capital and the applicable fiscal quarter for which
such Additional Capital applies.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation (other than Obligations with respect to indemnification
hereunder not due and payable) shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, unless the Required Lenders waive compliance
in writing:
8.01 Limitation on Liens.
BHI shall not, nor shall it suffer or permit any of its Subsidiaries to,
directly or indirectly, make, create, incur, assume or suffer to exist any Lien
upon or with respect to any part of its property, whether now owned or hereafter
acquired, other than the following ("Permitted Liens"):
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(a) any Lien existing on property of BHI or any Subsidiary on the
Closing Date and set forth in Schedule 8.01 securing Indebtedness outstanding on
such date and any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by this clause (a)
but only if the principal amount of the Indebtedness secured thereby is not
increased and such Liens do not extend to or cover any other property or assets;
provided that any Lien identified on Schedule 8.01 that is marked with an
asterisk shall not be a Permitted Lien;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 7.07, provided that no
notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the property
subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the property of BHI or its Subsidiaries securing (i)
the non-delinquent performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) contingent obligations on surety or
appeal bonds, and (iii) other non-delinquent obligations of a like nature, in
each case, incurred in the ordinary course of business; provided that all such
Liens in the aggregate would not (taking into account the probable likelihood of
their being enforced) reasonably be expected to cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens,
provided that the enforcement of such Liens is effectively stayed and the
obligations secured by all such Liens in the aggregate at any time outstanding
for BHI and its Subsidiaries do not exceed the Equivalent Amount of $1,500,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the businesses of BHI and its
Subsidiaries except for such easements, rights-of-way, restrictions and other
similar encumbrances on property which existed at the time of acquisition by BHI
or its Subsidiaries of such property and were not created in anticipation
thereof and which do not interfere with the ordinary conduct of business by BHI
and its Subsidiaries;
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(i) (a) Liens (including Liens under Capitalized Leases) in
respect of property or assets acquired or constructed by BHI or a Subsidiary
after the date hereof, which Liens are created at the time of acquisition or
completion of construction of such property or asset or within 20 days
thereafter, to secure Indebtedness assumed or incurred to finance all or any
part of the purchase price or cost of construction of such property or asset,
(b) in the case of any Person that hereafter becomes a Subsidiary or is
consolidated with or merged with or into BHI or a Subsidiary, Liens existing at
the time such Person becomes a Subsidiary or is so consolidated or merged (and
not incurred in anticipation thereof), and (c) in the case of any property or
asset acquired by BHI or any Subsidiary after the Closing Date (other than in
connection with the Transaction), Liens existing on such property or asset at
the time of acquisition thereof (and not incurred in anticipation thereof),
whether or not the Indebtedness secured thereby is assumed by BHI or a
Subsidiary; provided, that in any such case:
(x) no such Lien shall extend to or cover any other property
or assets of BHI or of such Subsidiary, as the case may be, and
(y) the aggregate principal amount of the Indebtedness
secured by all such Liens in respect of any such property or assets
shall not exceed 100% of the fair market value of such property or
assets at the time of such acquisition;
and any extension, renewal or replacement thereof but only if the principal
amount of the Indebtedness secured thereby is not increased and such Liens do
not extend to or cover any other property or assets, provided further, that the
aggregate principal amount of Indebtedness secured by Liens permitted by this
Section 8.01(i) together with (but without double counting) the aggregate
principal amount of Indebtedness permitted by Section 8.05(e) does not exceed at
any one time outstanding the Equivalent Amount of $6,000,000;
(j) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by BHI or any of its Subsidiaries in excess of those set forth by
regulations promulgated by the FRB, and (ii) such deposit account is not
intended by BHI or any of its Subsidiaries to provide collateral to the
depository institution;
(k) Liens of any landlord with respect to leased real property of
BHI or any of its Subsidiaries arising in the ordinary course of business for
sums not overdue or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set aside on
the books of BHI or such Subsidiary, as the case may be;
(l) Licenses, leases or subleases granted to third Persons in the
ordinary course of the business not interfering in any material respect with the
business of BHI or any of its Subsidiaries;
(m) Liens arising from precautionary UCC financing statements
regarding operating leases not constituting Indebtedness or consignments;
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(n) Liens securing Indebtedness evidenced by Intercompany Notes
issued by NSC pursuant to Section 8.05(f), provided, that the documentation
evidencing any such Lien shall be in form and substance satisfactory to the
Administrative Agent; and
(o) Liens securing obligations (other than Indebtedness) of BHI
and its Subsidiaries not to exceed in the aggregate at any one time outstanding
the Equivalent Amount of $1,000,000.
8.02 Disposition of Assets.
BHI shall not, nor shall it suffer or permit any of its Subsidiaries to,
directly or indirectly, (x) issue any equity interests of any Subsidiary to any
Person which is not BHI or one of its Wholly-Owned Subsidiaries or (y) sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one or a
series of transactions) any property, including accounts and notes receivable,
with or without recourse (each, an "Asset Disposition"), or enter into any
agreement to do any of the foregoing, except:
(a) dispositions of used, worn-out or surplus equipment or unused
intellectual property, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of replacement equipment, or the
proceeds of such sale are within 180 days of receipt thereof applied to the
purchase price of such replacement equipment;
(c) Asset Dispositions by any Subsidiary to any Wholly-Owned
Subsidiary that is a Loan Party;
(d) BHI or any Subsidiary may enter into operating leases and
licenses as lessor in the ordinary course of business which are not
substantially equivalent to sales;
(e) BHI or any Subsidiary may enter into assignments and licenses
of intellectual property in the ordinary course of business; and
(f) dispositions by BHI and its Subsidiaries not otherwise
permitted hereunder which are made for fair market value; provided, that (i) at
the time of any disposition, no Event of Default shall exist or shall result
from such disposition, (ii) at least 75% of the aggregate sales price from such
dispositions shall be paid in cash, and (iii) the aggregate value of all assets
so sold by BHI and its Subsidiaries in any fiscal year shall not exceed the
Equivalent Amount of $2,000,000;
(g) sale or discounts of accounts receivable by BHI or any of its
Subsidiaries in the ordinary course of collection;
(h) sell Investments permitted under Section 8.04(a);
(i) transactions permitted under Section 8.03; and
(j) dispositions of inventory in the ordinary course of business.
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In the event any Collateral is sold as permitted by this Section
8.02, such Collateral shall be sold free and clear of the Liens created by the
Collateral Documents and the Collateral Agent shall be authorized to take any
actions and execute and deliver any lien release documents as may be necessary
in order to effect the foregoing.
8.03 Consolidations and Mergers.
BHI shall not, nor shall it suffer or permit any of its Subsidiaries to,
merge, consolidate with or into, or convey, transfer, lease or otherwise dispose
of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except for the following but only so long as the
corporate existence of BHI is continued:
(a) any Subsidiary may merge with BHI (provided that BHI shall be
the continuing or surviving corporation), or with any one or more Subsidiaries
(provided that if any such Subsidiary is a Guarantor, the surviving corporation
shall be a Guarantor, and if any transaction shall be between a Subsidiary and a
Wholly-Owned Subsidiary, the continuing or surviving corporation shall be a
Wholly-Owned Subsidiary);
(b) another Person organized under the laws of the jurisdiction of
the Loan Party may merge with or consolidate into such Loan Party so long as (i)
such Acquisition is a Permitted Acquisition, (ii) such surviving Person is a
Loan Party, and (iii) all applicable legal requirements have been satisfied;
(c) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise), to BHI or a Wholly-Owned Subsidiary
that is a Loan Party; and
(d) any transaction permitted under Section 8.02.
8.04 Loans and Investments.
BHI shall not, nor shall it suffer or permit any of its Subsidiaries to,
purchase or acquire, or make any commitment therefor, any capital stock, equity
interest, or any obligations or other securities of, or any interest in, any
Person, or make or commit to make any Acquisitions, or make or commit to make
any advance, loan, extension of credit or capital contribution to or any other
investment in, any Person (excluding commission, travel, relocation and similar
advances to officers and employees made in the ordinary course of business)
including any Affiliate of the Company (together, "Investments"), except for:
(a) Investments held by BHI or its Subsidiaries in the form of
cash equivalents or short term marketable securities;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) Investments by BHI or any of its Subsidiaries in BHI or one or
more Wholly-Owned Subsidiaries that is a Loan Party or unsecured loans made by
any such Subsidiary to BHI;
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(d) Permitted Acquisitions and Investments incurred in order to
consummate Permitted Acquisitions;
(e) Investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(f) loans and advances to officers, directors and employees of BHI
and its Subsidiaries, the proceeds of which are used to purchase Capital Stock
of BHI;
(g) Investments consisting of Capital Stock of BHI purchased from
officers, directors, consultants, and employees of BHI and its Subsidiaries
pursuant to subsection 8.09(c);
(h) Investments (including debt obligations) 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;
(i) Investments that are outstanding as of the Closing Date and
set forth in Schedule 8.04 hereto;
(j) other Investments, including in Joint Ventures or other
Persons with business reasonably related to the business of BHI and its
Subsidiaries, of up to the Equivalent Amount of $2,000,000 in the aggregate;
(k) Investments incurred in connection with transactions described
in Section 8.02(f); provided, that such Investments shall be limited to 25% of
the aggregate sale price from such dispositions and shall be evidenced by
promissory notes issued to BHI or any of its Subsidiaries, as applicable, and
pledged and delivered to the Collateral Agent to the extent required by the
Collateral Documents;
(l) Contingent Obligations permitted under Section 8.08;
(m) BHI and its Subsidiaries may make pledges and deposits
permitted under Section 8.01;
(n) Investments constituting Permitted Earn-Out Debt permitted
pursuant to Section 8.05(l); and
(o) BHI and its Subsidiaries may make intercompany loans permitted
by Section 8.05
Notwithstanding the above, the aggregate amount of Investments made to, in
or in respect of Foreign 956 Subsidiaries or any Subsidiaries not organized
under the laws of the United States or the United Kingdom shall not at any time
in the aggregate exceed the Equivalent Amount of $3,000,000.
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8.05 Limitation on Indebtedness.
BHI shall not, nor shall it suffer or permit any Subsidiary to, create,
incur, assume, suffer to exist, or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement or the Loan
Documents;
(b) Indebtedness of BHI or its Subsidiaries consisting of
Contingent Obligations permitted pursuant to Section 8.08 (other than
subparagraph (d) thereof);
(c) Indebtedness of BHI or its Subsidiaries existing on the
Closing Date and set forth in Schedule 8.05;
(d) Indebtedness of BHI or its Subsidiaries secured by Liens which
are permitted pursuant to Section 8.01(i) in an aggregate amount at any one time
outstanding not to exceed the Equivalent Amount of $5,000,000;
(e) Indebtedness of a Subsidiary of BHI (or related to an asset)
issued and outstanding on or prior to the date on which such Subsidiary (or
asset) was acquired by BHI or a Subsidiary of BHI in a transaction constituting
a Permitted Acquisition (other than Indebtedness issued as consideration in, or
to provide all or any portion of the funds utilized to consummate such Permitted
Acquisition); provided that the aggregate amount of such Indebtedness
outstanding at any time, together with Indebtedness outstanding and permitted by
Section 8.05(d) (without double counting) does not exceed the Equivalent Amount
of $5,000,000;
(f) unsecured Indebtedness (except as permitted pursuant to
Section 8.01(n)) of (x) BHI to a Borrower to the extent the proceeds thereof are
promptly utilized to pay costs permitted pursuant to Section 8.09(d), (y) a
Borrower to any Guarantor or another Borrower or (z) any Guarantor to a Borrower
or any other Guarantor, provided that such Indebtedness shall be evidenced by a
promissory note (each such promissory note, an "Intercompany Note") which,
together with any related security interests, shall be pledged to the Collateral
Agent pursuant to a Pledge Agreement;
(g) Indebtedness of BHI and its Subsidiaries resulting from the
refinancing of Indebtedness permitted by clauses (c) and (d) above; provided,
however, that the principal amount of any such refinancing Indebtedness (as
determined as of the date of the incurrence of such refinancing Indebtedness in
accordance with GAAP), does not exceed the principal amount of the Indebtedness
refinanced thereby on such date;
(h) unsecured Indebtedness of BHI which is subordinated to the
Obligations on terms reasonably satisfactory to the Administrative Agent and the
Required Lenders incurred in connection with Permitted Acquisitions or
Investments permitted by subsection 8.04; provided that the terms and conditions
of such Indebtedness shall be satisfactory to the Administrative Agent and the
principal amount thereof (together with the unsecured Indebtedness issued
pursuant to Section 8.13) shall not exceed the Equivalent Amount of $10,000,000
in the aggregate at any one time outstanding;
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(i) unsecured Indebtedness of BHI which is subordinated to the
Obligations on terms reasonably satisfactory to the Administrative Agent and the
Required Lenders incurred in connection with Investments permitted by subsection
8.04(g), all on terms and conditions satisfactory to the Administrative Agent;
(j) Indebtedness under the Loan Notes owing to former shareholders
of ▇▇▇▇▇▇▇ International and secured by the Loan Note Credit Support;
(k) intercompany Indebtedness permitted by Sections 8.04(c), (j)
and (o);
(l) Permitted Earn-Out Debt, provided that the maximum potential
liability of BHI or any of its Subsidiaries with respect to any such Permitted
Earn-Out Debt shall not exceed at any time an amount equal to 25% of the
aggregate consideration paid by BHI or such Subsidiary in connection with the
related Permitted Acquisition;
(m) other unsecured Indebtedness of BHI or its Subsidiaries at any
time outstanding as long as such Indebtedness when aggregated with Contingent
Obligations which are permitted to be outstanding solely under subsection
8.08(j) does not exceed the Equivalent Amount of $2,000,000; and
(n) unsecured Indebtedness pursuant to Section 7.16; provided,
that (i) the terms and conditions of such unsecured Indebtedness shall be
reasonably satisfactory to the Administrative Agent (and, to the extent such
Indebtedness provides for interest payments, such interest payments shall be
payments-in-kind), and (ii) such unsecured Indebtedness shall be subordinated to
the Obligations on terms reasonably satisfactory to the Administrative Agent and
the Required Lenders; provided, that the parties hereto hereby agree that if the
terms and conditions of such unsecured Indebtedness are substantially similar to
the subordinated promissory notes issued by the Company on September 30, 2002,
such unsecured Indebtedness shall be deemed to have met the standards set forth
in the preceding proviso.
8.06 Transactions with Affiliates.
No Loan Party shall, nor shall it suffer or permit any of its Subsidiaries
to, enter into any transaction with any Affiliate of such Loan Party, except
upon fair and reasonable terms no less favorable to such Loan Party or such
Subsidiary than would be obtainable in a comparable arm's-length transaction
with a Person not an Affiliate of such Loan Party or such Subsidiary and except
for the following:
(a) transactions between or among a Loan Party and/or its
Subsidiaries;
(b) payments permitted pursuant to Section 8.09 and transactions
permitted pursuant to Section 8.04 or Section 8.08;
(c) the provision of officers' and directors' indemnification and
insurance in the ordinary course of business to the extent permitted by
applicable law; and
(d) payments pursuant to that certain Amended and Restated
Management Agreement, dated as of the date hereof, by and among BHI, CVS
Holdings, Inc., CVS Holdings
103
Ltd., CVS, Inc. and Hidden Creek as in effect on the Closing Date (the
"Management Agreement") and as amended in a manner permitted under Section 8.13.
8.07 Use of Proceeds.
(a) No Loan Party shall, nor shall suffer or permit any of its
Subsidiaries to, use any portion of the Loan proceeds or any Letter of Credit,
directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance indebtedness of the Company or others incurred to purchase
or carry Margin Stock, (iii) to extend credit for the purpose of purchasing or
carrying any Margin Stock, (iv) to acquire any security in any transaction that
is subject to Section 13 or 14 of the Exchange Act or (v) to make Acquisitions
other than Permitted Acquisitions.
(b) None of the proceeds of any Loans may be used in any way which
infringes Section 151 of the Companies Act or any similar or other statutory
obligation whether in the United Kingdom or elsewhere.
8.08 Contingent Obligations.
BHI shall not, nor shall it suffer or permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Contingent Obligations except:
(a) (i) endorsements for collection or deposit in the ordinary
course of business, and (ii) standard contractual indemnities in the ordinary
course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of BHI and its Subsidiaries existing as
of the Closing Date and listed in Schedule 8.08;
(d) Contingent Obligations with respect to Indebtedness permitted
by Section 8.05;
(e) Contingent Obligations with respect to Surety Instruments
incurred by BHI and its Subsidiaries (including on behalf of third parties) in
the ordinary course of business;
(f) Contingent Obligations of BHI or any Subsidiary of BHI
consisting of a guarantee of obligations of a Wholly-Owned Subsidiary under any
lease or other agreement entered into in the ordinary course of business not
constituting Indebtedness and for which the liability with respect thereto is
not required to be reflected on a balance sheet prepared in accordance with
GAAP;
(g) ordinary course indemnity provisions in any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which BHI or any of its Subsidiaries is a party;
(h) BHI and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in the form of customary and reasonable
indemnification provisions or
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customary purchase price adjustments (based on post-closing audit adjustments)
incurred in connection with Permitted Acquisitions or sales of assets permitted
under this Agreement to be made by BHI or any Subsidiary;
(i) BHI and its Subsidiaries may incur Contingent Obligations in
respect of employment arrangements and other compensation arrangements entered
into in connection with Permitted Acquisitions; and
(j) Contingent Obligations not exceeding at any time the
Equivalent Amount of $2,000,000 in the aggregate less the amount of unsecured
Indebtedness which is permitted to be outstanding solely under subsection
8.05(m).
8.09 Restricted Payments.
BHI shall not, nor shall it suffer or permit any of its Subsidiaries to,
declare or make any dividend payment, other payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any
shares of any class of its capital stock or purchase, redeem or otherwise
acquire for value any shares of its capital stock or any warrants, rights or
options to acquire such shares, now or hereafter outstanding (collectively,
"Restricted Payments"), except that:
(a) BHI may declare and make dividend payments or other
distributions payable solely in its Capital Stock and in cash to the extent
permitted by clauses (c) and (d) below;
(b) Subsidiaries of BHI may make Restricted Payments to BHI and
other Wholly-Owned Subsidiaries of BHI;
(c) so long as no Default or Event of Default shall then exist and
be continuing or would result after giving effect thereto, any Subsidiary of BHI
may declare and make dividend payments or other distributions payable to BHI (x)
to enable BHI to repurchase Capital Stock owned by its officers, directors,
consultants, and employees, or former officers, directors, consultants and
employees, or their respective estates or spouses or former spouses, of BHI or
any of its Subsidiaries in an amount not exceeding during the term of this
Agreement $500,000 plus the amount of proceeds received by BHI in cash (or
forgiveness of Indebtedness) (or the principal amount of promissory notes) after
the Closing Date from the purchase of Capital Stock of BHI by (i) officers,
directors, consultants, and employees of BHI and its Subsidiaries and (ii)
holders of Capital Stock of BHI as of the Closing Date and their Related
Parties; provided that any such repurchase for cash or forgiveness of
Indebtedness shall not exceed the aggregate amount of all such proceeds received
in cash (or forgiveness of Indebtedness) after the Closing Date, and (y) to
enable BHI to make scheduled payments of interest on subordinated Indebtedness
incurred by BHI pursuant to Section 8.05(h) or (i) or to make scheduled payments
of interest on other subordinated Indebtedness; provided that the aggregate
principal amount of subordinated Indebtedness of BHI shall not at any time
exceed the amount permitted to be incurred by BHI pursuant to Section 8.05(g) or
(h)); and
105
(d) distributions to BHI to the extent necessary to permit BHI to
pay federal, state and other taxes and other administrative costs applicable to
the operations of BHI and its Subsidiaries.
8.10 ERISA.
BHI shall not, nor shall it suffer or permit any of its ERISA Affiliates
to: (a) engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan or (b) engage in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA which has resulted or
could reasonably expected to result in liability of BHI in an aggregate amount
in excess of $2,000,000.
8.11 Change in Business.
(a) No Loan Party shall, nor shall any such Loan Party suffer or
permit any of its Subsidiaries to, engage in any material line of business
substantially different from those lines of business carried on by a Loan Party
and its Subsidiaries on the Closing Date and lines of business reasonably
ancillary or complementary to such current lines of business.
(b) BHI will not engage in any business activities other than in
connection with its ownership interest in the Loan Parties and its other
Subsidiaries and the execution, delivery and performance of the Transaction
Documents to which it is a party and to engage in other actions expressly
permitted by this Agreement (including, without limitation, incurring certain
Indebtedness and making certain loans). Notwithstanding the foregoing, BHI may
engage in those activities that are incidental to (x) the maintenance of its
corporate existence in compliance with applicable law and (y) legal, tax and
accounting matters in connection with any of the foregoing activities.
8.12 Accounting Changes.
BHI shall not, nor shall it suffer or permit any of its Subsidiaries to,
(a) make any significant change in accounting treatment or reporting practices,
except (i) as required by GAAP and (ii) any other change which does not affect
the calculations required to determine compliance with Section 8.14 through
8.18, or (b) change the fiscal year of BHI or any of its Subsidiaries to make
the fiscal year of such Subsidiary different than that of BHI.
8.13 Amendments to Organizational Documents or Management Agreement;
Preferred Stock.
BHI shall not, nor shall it permit any of its Subsidiaries to, (a) make
any amendment or modification to the Organizational Documents of BHI or any Loan
Party, or to any terms or provisions of any other Organizational Documents which
is materially adverse to the Administrative Agent or the Lenders without the
prior written consent of the Required Lenders, (b) make any amendment or
modification to the Management Agreement which is materially adverse to the
Administrative Agent or the Lenders without the prior written consent of the
Required Lenders or (c) issue any preferred stock, other than preferred stock
which is subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent and the Required Lenders incurred in connection with
Permitted Acquisitions or Investments
106
permitted by Section 8.04; provided that the terms and conditions of such
preferred stock shall be satisfactory to the Administrative Agent and the
liquidation preference with respect thereto (together with the principal amount
of Indebtedness outstanding and permitted pursuant to subsection 8.05(g)) shall
not exceed $20,000,000 in the aggregate at any time outstanding.
8.14 Net Worth.
BHI shall not permit its consolidated Net Worth on the last day of any
fiscal quarter to be less than the sum of (a) $35,000,000, plus (b) 75% of
consolidated Net Income of BHI and its Subsidiaries (excluding (a) gains and
losses with respect to foreign exchange and/or interest rate protection
adjustments reflected in the consolidated balance sheet of BHI, (b) previously
capitalized costs and expenses related to the incurrence of indebtedness and
costs and expenses related to the execution and delivery of this Agreement, not
to exceed $3,250,000 in the aggregate and (c) adjustments with respect to
goodwill made in accordance with Financial Accounting Standard 142) for each
fiscal quarter after the Closing Date; provided, however, that, in the event Net
Income of BHI and its Subsidiaries is less than zero for any fiscal quarter, Net
Income for purposes only of this Section 8.14 shall be deemed to be zero for
such fiscal quarter.
8.15 Total Leverage Ratio.
BHI shall not permit the Total Leverage Ratio, as determined as of the
last day of each fiscal quarter for the four fiscal quarter period then ended,
to be greater than the ratio set forth below for such period:
QUARTER ENDING RATIO
-------------- -----
March 31, 2003 3.80 to 1
June 30, 2003 4.50 to 1
September 30, 2003 4.40 to 1
December 31, 2003 3.50 to 1
March 31, 2004 3.00 to 1
June 30, 2004 2.75 to 1
and thereafter
; provided, however, that for purposes of calculating the Total Leverage Ratio
hereunder "Funded Indebtedness" shall exclude any Additional Capital to the
extent the proceeds thereof are applied to reduce the Revolving Loans and such
application shall be reflected on a pro forma basis as if such reduction in the
Revolving Loans had occurred at the beginning of the four quarter period then
ended.
8.16 Fixed Charge Coverage Ratio.
BHI shall not permit the Fixed Charge Coverage Ratio, as determined as of
the last day of each fiscal quarter for the four fiscal quarter period then
ended, to be less than the ratio set forth below for such period:
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QUARTER ENDING RATIO
-------------- -----
March 31, 2003 1.00 to 1
June 30, 2003 .85 to 1
September 30, 2003 .85 to 1
December 31, 2003 .95 to 1
March 31, 2004
and thereafter 1.00 to 1
8.17 Minimum EBITDA.
BHI shall not permit EBITDA, calculated on a cumulative basis from January
1, 2003 to each of the dates set forth below, to be less than the amounts set
forth below for each such period:
Fiscal period ending on or about: EBITDA
--------------------------------- ------
March 31, 2003 $ 3,667,000
April 30, 2003 $ 4,991,000
May 31, 2003 $ 6,654,000
June 30, 2003 $ 8,765,000
July 31, 2003 $ 9,785,000
August 31, 2003 $ 11,769,000
September 30, 2003 $ 14,358,000
October 31, 2003 $ 17,003,000
November 30, 2003 $ 19,335,000
December 31, 2003 $ 20,805,000
8.18 Capital Expenditures.
Neither BHI nor any of its Subsidiaries shall make or commit to make
Capital Expenditures in an aggregate amount exceeding the Equivalent Amount of
$10,000,000 in any fiscal year; provided, that up to the Equivalent Amount of
$2,500,000 of the amount of Capital Expenditures permitted hereunder (including
for purposes hereof amounts carried forward from the previous year, if any)
which are not applied in any fiscal year may be carried forward and applied in
the next succeeding fiscal year. For the purpose of this Section 8.18 only,
"Equivalent Amount" for computations in Sterling shall be calculated at the
exchange rate of $1.50 to (pound)1.
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8.19 Restrictive Agreements.
Neither BHI, nor the Company shall, nor shall they permit any of their
Subsidiaries to, enter into any indenture, agreement, instrument or other
arrangement which directly or indirectly prohibits or restrains, or has the
direct effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the ability of any of its Subsidiaries to (a) pay dividends or
make other distributions (i) on its Capital Stock or (ii) with respect to any
other interest or participation in, or measured by, its profits, (b) make loans
or advances to BHI or any of its Subsidiaries, (c) repay loans or advances from
BHI or any of its Subsidiaries or (d) transfer any of its properties or assets
to BHI or any of its Subsidiaries; provided, however, the provisions of this
Section 8.19 shall not apply with respect to clause (d) above, to Permitted
Liens or other restrictions contained in security agreements securing
Indebtedness permitted hereby to the extent such restrictions restrict the
transfer of property subject to such Permitted Lien or any encumbrance or
restriction consisting of customary non-assignment provisions in Contractual
Obligations entered into in the ordinary course of business to the extent such
provisions restrict the transfer or assignment of such agreement.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default.
Any of the following shall constitute an "Event of Default":
(a) Non-Payment. Any Borrower fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of any L/C
Obligation, or (ii) within three (3) Business Days after the same becomes due,
any interest, fee or any other amount payable hereunder or under any other Loan
Document; or
(b) Representation or Warranty. Any representation or warranty by
any Loan Party made or deemed made herein or in any other Loan Document, or
contained in any certificate, document or financial or other statement by a Loan
Party, or any Responsible Officer, furnished at any time under this Agreement,
or in or under any other Loan Document, is incorrect in any material respect on
or as of the date made or deemed made; or
(c) Specific Defaults. BHI or any Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section 7.01, 7.02,
7.03(a) - (d), 7.04(a), 7.09, 7.13(d) or (e) or in Article VIII; or
(d) Other Defaults. Any Loan Party fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document,
and such default shall continue unremedied for a period of 30 days after the
date upon which written notice thereof is given to the Company by the
Administrative Agent or any Lender; or
(e) Cross-Default. (i) Any Loan Party (A) fails to make any
payment in respect of any Indebtedness (other than in respect of Swap
Contracts), having an aggregate principal amount (including undrawn committed or
available amounts and including amounts
109
owing to all creditors under any combined or syndicated credit arrangement) of
more than $2,000,000 when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure continues after
the applicable grace or notice period, if any, specified in the relevant
document on the date of such failure; or (B) fails to perform or observe any
other condition or covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such Indebtedness or in
respect of any Contingent Obligation having an aggregate maximum amount of more
than $2,000,000 when due, and such failure continues after the applicable grace
or notice period, if any, specified in the relevant document on the date of such
failure if the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to
be declared to be due and payable, or to be required to be repurchased, prior to
its stated maturity, or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded; (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract) resulting
from (1) any event of default under such Swap Contract as to which any Loan
Party is the Defaulting Party (as defined in such Swap Contract) or (2) any
Termination Event (as so defined) arising due to a "Tax Event Upon Merger" or a
"Credit Event Upon Merger" as to which the Company or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value
owed by such Loan Party as a result thereof is greater than $1,000,000; or (iii)
such Loan Party fails to perform or observe any condition or covenant under any
contract providing for the issuance of, or reimbursement of amounts in respect
of, Surety Instruments (other than Non-Surety L/Cs), which in such event
requires the making of payments in excess of $1,000,000 in the aggregate, net of
the proceeds of insurance policies and indemnity agreements in favor of such
Loan Party and received or reasonably expected to be received thereby.
(f) Insolvency; Voluntary Proceedings. Any Loan Party (i) ceases
or fails to be solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; (iv) in relation to a Loan Party
incorporated in England and Wales makes an application to strike that Loan Party
off the register pursuant to Section 652A of the Companies ▇▇▇ ▇▇▇▇ of the
United Kingdom or (iv) takes any action to effectuate or authorize any of the
foregoing including, without limitation, the calling of any creditors or
shareholders meeting to effect the same; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Loan Party, or any writ, judgment,
warrant of attachment, execution or similar process, is issued or levied against
a substantial part of any Loan Party's properties, and any such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy; (ii) any Loan Party admits in
writing the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) any Loan Party acquiesces in
writing to the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), administrator or other
similar Person for itself or a substantial portion of its property or business;
or (iv) in relation to a Loan Party
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incorporated in England and Wales the registrar of companies takes any steps in
contemplation of striking that Loan Party off the register pursuant to Section
652 of the Companies ▇▇▇ ▇▇▇▇ of the United Kingdom; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or would reasonably be
expected to result in liability of BHI or any ERISA Affiliate under Title IV of
ERISA to such Pension Plan or Multiemployer Plan or to the PBGC in an aggregate
amount for all such Pension Plans and Multiemployer Plans in excess of
$2,000,000; (ii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans and Multiemployer Plans at any time exceeds $2,000,000
(determined, in respect of Multiemployer Plans, by reference to the Unfunded
Person Liability for which BHI or any ERISA Affiliate may be liable); or (iii)
BHI or any ERISA Affiliate shall fail to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in
an aggregate amount in excess of $2,000,000; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
noninterlocutory orders, decrees or arbitration awards is entered against one or
more Loan Parties involving in the aggregate a liability (to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage) as to any single or related series of transactions, incidents
or conditions, of $2,000,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of 10 days after the entry
thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against any Loan Party which does or would reasonably be
expected to have a Material Adverse Effect, and there shall be any period of 20
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(k) Change of Control. There occurs any Change of Control; or
(l) Guarantor Defaults. Any Guarantor fails in any material
respect to perform or observe any material term, covenant or agreement in the
BHI Guaranty or the Subsidiary Guaranty, as applicable; or the BHI Guaranty or
the Subsidiary Guaranty is for any reason partially (including with respect to
future advances) or wholly revoked or invalidated, or otherwise ceases to be in
full force and effect, or any Guarantor contests in writing in any manner the
validity or enforceability thereof or denies in writing that it has any further
liability or obligation thereunder; or any event described at subsection (f) or
(g) of this Section occurs with respect to any Guarantor; or
(m) Collateral.
(i) any provision of any Collateral Document shall for any
reason cease to be valid and binding on or enforceable against the
Loan Party thereto or any Loan Party shall so state in writing or
bring an action to limit or deny any obligation or liability
thereunder; or
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(ii) any Collateral Document shall for any reason (other than
pursuant to the terms thereof) cease to create a valid security
interest in the Collateral purported to be covered thereby having a
fair market value of $100,000 or more or such security interest
shall for any reason cease to be a perfected and first priority
security interest subject only to Permitted Liens.
9.02 Remedies.
Subject to Section 5.02, if any Event of Default has occurred and is
continuing, the Administrative Agent and/or the Collateral Agent shall, at the
request of, or may, with the consent of, the Required Lenders:
(a) declare the Commitment of each Lender to make Loans and any
obligation of the Issuer to Issue Letters of Credit to be terminated, whereupon
such Commitments and obligation shall be terminated;
(b) declare the maximum aggregate amount that is or at any time
thereafter may become available for drawing under any outstanding Letters of
Credit (whether or not any beneficiary shall have presented, or shall be
entitled at such time to present, the drafts or other documents required to draw
under such Letters of Credit) to be immediately due and payable, and declare the
unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Company; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 9.01 (in the case of subclause (i) of clause (g) upon the
expiration of the sixty day period described therein), the obligation of each
Lender to make Loans and any obligation of an Issuer to Issue Letters of Credit
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Administrative Agent, the Collateral
Agent, any Issuer or any Lender.
9.03 Rights Not Exclusive.
The rights provided for in this Agreement and the other Loan Documents are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument, document
or agreement now existing or hereafter arising.
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ARTICLE X
THE AGENTS
10.01 Appointment and Authorization.
(a) Each Lender hereby irrevocably designates and appoints Bank of
America as the Administrative Agent and Collateral Agent, and under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent and the Collateral Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent and the Collateral Agent, by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, neither the
Administrative Agent nor the Collateral Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent or the Collateral Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent or the Collateral Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Administrative Agent and the Collateral Agent is not intended
to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) The Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit Issued by the Issuer and the documents associated
therewith; provided, however, that the Issuer shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article X with
respect to any acts taken or omissions suffered by the Issuer in connection with
Letters of Credit Issued by it or proposed to be Issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent," as used in this Article
X, included the Issuer with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the Issuer.
10.02 Delegation of Duties.
The Administrative Agent and the Collateral Agent may execute any of their
respective duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Neither the
Administrative Agent nor the Collateral Agent shall be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.03 Liability of Agents.
No Agent-Related Person (in such capacities) shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement or any other
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Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner to any of
the Lenders for any recital, statement, representation or warranty made by BHI
or any Subsidiary or Affiliate of BHI, or any officer thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent or the Collateral Agent under or in connection with, this
Agreement or any other Loan Document, or for the value of or title to any
Collateral, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
BHI or any other party to any Loan Document to perform its obligations hereunder
or thereunder. No Agent-Related Person shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of BHI or any of BHI's
Subsidiaries or Affiliates.
10.04 Reliance by Agents.
(a) Each of the Administrative Agent and the Collateral Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to BHI), independent accountants and other
experts selected by it. Each of the Administrative Agent and the Collateral
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Each of the Administrative
Agent and the Collateral Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Sections 5.01 and, with regard to the initial Credit Extension,
5.02, each Lender that has executed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter either sent by the Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to such Lender unless the
Administrative Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
10.05 Notice of Default.
Neither the Administrative Agent nor the Collateral Agent shall be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received
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written notice from a Lender or BHI referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Lenders of its receipt of any
such notice. The Administrative Agent and the Collateral Agent shall take such
action with respect to such Default or Event of Default as may be requested by
the Required Lenders in accordance with Article IX; provided, however, that,
subject to the provisions of Section 9.02 requiring the consent of Required
Lenders to certain remedies, unless and until the Administrative Agent and the
Collateral Agent has received any such request, the Administrative Agent and the
Collateral Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as they shall deem advisable or in the best interest of the Lenders.
10.06 Credit Decision.
Each Lender acknowledges that none of the Agent-Related Persons has made
any representation or warranty to it, and that no act by the Administrative
Agent or the Collateral Agent, hereinafter taken, including any review of the
affairs of BHI and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Administrative Agent and the Collateral Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of BHI and its
Subsidiaries, the value of and title to any Collateral, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrowers
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of BHI and its
Subsidiaries. Except for notices, reports and other documents expressly herein
required to be furnished to the Lenders by the Administrative Agent or the
Collateral Agent, neither the Administrative Agent nor the Collateral Agent
shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of BHI or any of its
Subsidiaries which may come into the possession of any of the Agent-Related
Persons.
10.07 Indemnification of Agents.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Borrowers and without limiting the obligation
of the Borrowers to do so), in accordance with such Lender's Pro Rata Share of
all Loans and Commitments, from and against any and all Indemnified Liabilities;
provided, however, that no Lender shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified Liabilities resulting
from such Person's gross negligence, bad faith or willful misconduct. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent and the Collateral Agent upon demand for
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its respective ratable share of any costs or out-of-pocket expenses (including
Attorney Costs and all goods and services, value added, consumption, sales, use
or similar taxes applicable to such costs or expenses) incurred by the
Administrative Agent or the Collateral Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent or the Collateral Agent is not reimbursed
for such expenses by or on behalf of the Borrowers. The undertaking in this
Section shall survive the termination of the Aggregate Commitment, the payment
of all Obligations hereunder and the resignation or replacement of the
Administrative Agent or any Agent-Related Person.
10.08 Agent in Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with BHI and its Subsidiaries and Affiliates as though Bank of
America were not the Administrative Agent or the Collateral Agent or the Issuer
hereunder, in each case without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding BHI or its Affiliates (including information
that may be subject to confidentiality obligations in favor of BHI or such
Subsidiary) and acknowledge that the Administrative Agent and the Collateral
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, Bank of America shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Agent, the Collateral Agent or an Issuer, and the
terms "Lender" and "Lenders" include Bank of America in its individual capacity.
10.09 Successor Administrative Agent.
The Administrative Agent may, and at the request of the Required Lenders
shall, resign as Administrative Agent upon thirty (30) days' notice to the
Lenders, provided that such resignation by Bank of America shall also constitute
its resignation as the Collateral Agent, as an Issuer and as Swing Line Lender.
If the Administrative Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor Administrative Agent,
Collateral Agent, Issuer and Swing Line Lender subject to the consent of the
Borrowers at all times other than during the existence of an Event of Default,
which shall not be unreasonably withheld or delayed. If no successor
Administrative Agent, Collateral Agent, Issuer and Swing Line Lender is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrowers at all times other than during the existence of an Event of
Default, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent, Collateral
Agent, Issuer and Swing Line Lender hereunder, such successor Administrative
Agent, Collateral Agent, Issuer and Swing Line Lender shall succeed to all the
respective rights, powers and duties of the retiring Administrative Agent,
Collateral Agent, Issuer and Swing Line Lender and the respective terms
"Administrative Agent," "Collateral Agent," "Issuer" and "Swing Line Lender"
shall mean such successor
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Administrative Agent, Collateral Agent, Issuer and Swing Line Lender and the
retiring Administrative Agent's and Collateral Agent's respective appointment,
powers and duties as Administrative Agent and Collateral Agent shall be
terminated and the retiring Issuer's and Swing Line Lender's rights, powers and
duties as such shall be terminated, without any other or further act or deed on
the part of such retiring Administrative Agent, Collateral Agent, Issuer and
Swing Line Lender or any other Lender; provided, that any resignation of Bank of
America as Administrative Agent shall not automatically constitute a resignation
of Bank of America as guarantor under the Loan Note Credit Support and the above
provisions, as they apply to Bank of America as an Issuer, shall not apply to
Bank of America as guarantor under the Loan Note Credit Support. Upon any such
assignment and acceptance, any successor Issuer shall be obligated to issue
letters of credit in substitution for the Letters of Credit issued by the
retiring Issuer, if any, outstanding at the time of such succession or to make
other arrangements satisfactory to the retiring Issuer to effectively assume the
obligations of the retiring Issuer with respect to such Letters of Credit. After
any retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article X and Sections 11.04 and 11.05 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor Administrative Agent
has accepted appointment as Administrative Agent by the date which is thirty
(30) days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders and the
Borrowers (at all times other than during the existence of an Event of Default)
appoint a successor Administrative Agent as provided for above; provided that,
in such event, the Lenders shall not be obligated to perform the duties of the
Collateral Agent, the Issuer or the Swing Line Lender, and the Collateral Agent,
the Issuer and the Swing Line Lender shall not be permitted to resign until such
time as an assignee assumes such roles or accepts an appointment by the Lenders
in each such capacity. Notwithstanding the foregoing, however, Bank of America
may not be removed as the Administrative Agent at the request of the Required
Lenders unless Bank of America shall also simultaneously be replaced as the
Issuer, as Collateral Agent and as Swing Line Lender under the Loan Documents
pursuant to documentation in form and substance reasonably satisfactory to Bank
of America.
10.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Loan Party)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
Lenders, the Issuers and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders,
the Issuers and the Administrative Agent and their respective agents and counsel
and all other
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amounts due the Lenders, the Issuers and the Administrative Agent hereunder)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and Issuer to make such payments to the Administrative Agent and, in
the event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders and Issuers, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent and Issuers hereunder.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Issuer or
Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Issuer or Lender or to authorize
the Administrative Agent to vote in respect of the claim of any Issuer or Lender
in any such proceeding.
10.11 Collateral Matters.
(a) The Collateral Agent is authorized on behalf of all the
Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any Collateral or
the Collateral Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the Collateral granted
pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Collateral Agent, and
the Collateral Agent hereby agrees, upon request of the Borrower Representative,
to release any Lien granted to or held by the Collateral Agent upon any
Collateral (i) upon termination of the Aggregate Commitments, expiration or
termination of all Letters of Credit and payment in full of all Loans and all
other Obligations known to the Administrative Agent or the Collateral Agent and
payable under this Agreement or any other Loan Document; (ii) constituting
property sold or disposed of as part of or in connection with any disposition
permitted hereunder; (iii) constituting property in which BHI or any Subsidiary
owned no interest at the time the Lien was granted or at any time thereafter;
(iv) constituting property leased to BHI or any Subsidiary under a lease which
has expired or been terminated in a transaction permitted under this Agreement
or is about to expire and which has not been, and is not intended by BHI or such
Subsidiary to be, renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the indebtedness evidenced
thereby has been paid in full; (vi) acquired by BHI or any Subsidiary of BHI
after the Closing Date and at least 75% of the purchase price therefor is within
20 days of the acquisition thereof financed with Indebtedness secured by a Lien
permitted by Section 8.01(i); or (vii) if approved, authorized or ratified in
writing by the Required Lenders or all the Lenders, as the case may be, as
provided in Section 11.01. Upon request by the Collateral Agent at any time, the
Lenders will confirm in writing the Collateral Agent's authority to release
particular types or items of Collateral pursuant to this subsection 10.11(b),
provided that the
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absence of any such confirmation for whatever reason shall not affect the
Collateral Agent's rights under this Section 10.11.
(c) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of BHI or any Subsidiary) that the
Borrowers' obligations to such Lender under this Agreement and the other Loan
Documents is not and shall not be secured by any real property collateral now or
hereafter acquired by such Lender other than the real property described in any
Mortgages entered into from time to time.
10.12 Administrative Agent as English Trustee.
(a) (a) The Administrative Agent in its capacity as trustee or
otherwise under the Loan Documents governed by English law:
(i) is not liable for any failure, omission, or defect in
perfecting or registering the security constituted or created by any Loan
Document;
(ii) may accept without inquiry such title as any Loan Party
or any of its Subsidiaries may have to any asset secured by any Loan
Document; and
(iii) is not under any obligation to hold any Loan Document or
any other document in connection with the Loan Documents or the assets
secured by any Loan Document (including title deeds) in its own possession
or take any steps to protect or preserve the same. The Administrative
Agent may permit any Loan Party or any of its Subsidiaries to retain any
Loan Document or other document in its possession.
(b) Except as otherwise provided in the Loan Documents governed by
English law, all moneys which under the trusts contained in the Loan Documents
are received by the Administrative Agent in its capacity as trustee or otherwise
may be invested in the name of or under the control of the Administrative Agent
in any investment authorized by English law for the investment by trustee of
trust money or in any other investments which may be selected by the
Administrative Agent. Additionally, the same may be placed on deposit in the
name or under the control of the Administrative Agent or such Lender or
institution (including the Administrative Agent itself) and upon such terms as
the Administrative Agent may think fit.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment, modification, supplement, termination or waiver of or to any
provision of this Agreement, nor consent to any departure by any Loan Party
therefrom, shall be effective unless the same shall be in writing and signed by
or on behalf of the Required Lenders and the applicable Loan Party, and a
written copy thereof shall have been delivered to the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, modification, supplement, termination, waiver or consent, as the case
may be, shall: (i) reduce the rate of
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interest or extend the final scheduled maturity of any Loan, or the stated
maturity of any Letter of Credit beyond the Revolving Loan Termination Date, or
the date for payment of any fees or interest on any Loan, or waive or excuse any
such payment or any part thereof, or decrease the rate of interest on any Loan,
or reduce the principal amount thereof, in each case without the prior written
consent of each Lender affected thereby, (ii) release all or substantially all
of the Collateral (except as expressly provided in the Collateral Documents or
in connection with the release of a Guaranty) under the Collateral Documents,
without the prior written consent of each Lender, (iii) amend, modify or waive
any provision of this Section 11.01, without the prior written consent of each
Lender, (iv) reduce the percentage specified in the definition of Required
Lenders without the prior written consent of each Lender, (v) consent to the
assignment or transfer by any Loan Party of any of its rights and obligations
under this Agreement without the prior written consent of each Lender, or (vi)
release all or substantially all of the Guarantors from their respective
Guaranty, without the prior written consent of each Lender (unless such release
is in connection with a transaction permitted herein); provided, further, that
no such amendment, modification, supplement, termination, waiver or consent
shall (1) increase the Commitments of any Lender over the amount thereof then in
effect without the prior written consent of such Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default shall not constitute an increase of the Commitment of any
Lender, and that an increase in the available portion of any Commitment of any
Lender shall not constitute an increase in the Commitment of such Lender), (2)
amend, modify or waive any provision of this Agreement or any other Loan
Document which affects the rights or obligations of the Issuer or the Swing Line
Lender, as the case may be, without the prior written consent of the Issuer or
the Swing Line Lender, as the case may be, (3) amend, modify or waive any
provision of Article X as same applies to the Administrative Agent or the
Collateral Agent or any other provisions as same relates to the rights or
obligations of the Administrative Agent or the Collateral Agent, without the
prior written consent of the Administrative Agent or the Collateral Agent, as
the case may be, or (4) amend, modify or waive any provisions relating to the
rights or obligations of the Administrative Agent or the Collateral Agent under
the other Loan Documents, without the prior written consent of the
Administrative Agent or the Collateral Agent, as the case may be.
11.02 Notices.
(a) Except where telephonic notices are specifically authorized
herein, all notices, requests, consents, approvals, waivers and other
communications made in connection with or pursuant to the Transaction Documents
shall be in writing (including, unless the context expressly otherwise provides,
by facsimile transmission, provided that any matter transmitted by any Loan
Party by facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule 11.02, and (ii) shall be followed
promptly by delivery of a hard copy original thereof) and mailed, faxed or
delivered, to the address, facsimile number or (subject to subsection (d) below)
electronic mail address specified for notices on Schedule 11.02; or, as directed
to the Company or the Administrative Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and as
directed to any other party, at such other address as shall be designated by
such party in a written notice to the Company and the Administrative Agent.
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(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed or delivered, upon delivery; except that
notices pursuant to Article II, III or X to the Administrative Agent shall not
be effective until actually received by the Administrative Agent, and notices
pursuant to Article II or III to the Issuer or the Swing Line Lender shall not
be effective until actually received by such Person at the address specified on
Schedule 11.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to
the other parties.
(c) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Loan Parties. The Administrative Agent and
the Lenders shall be entitled to rely on the authority of any Person identifying
himself or herself as, and reasonably appearing to be, a Person authorized by a
Loan Party to give such notice and the Administrative Agent and the Lenders
shall not have any liability to any Loan Party or other Person on account of any
action taken or not taken by the Administrative Agent or the Lenders in good
faith in reliance upon such telephonic or facsimile notice. The obligation of
the Loan Parties to repay the Loans and L/C Obligations shall not be affected in
any way or to any extent by any failure by the Administrative Agent and the
Lenders to receive written confirmation of any telephonic or facsimile notice or
the receipt by the Administrative Agent and the Lenders of a confirmation which
is at variance with the terms understood by the Administrative Agent and the
Lenders to be contained in the telephonic or facsimile notice. In no event shall
a voicemail message be effective as a notice, communication or confirmation
hereunder.
(d) Electronic mail and Internet and intranet websites may be used
for notices, requests, consents, approvals, waivers and other communications
made in connection with or pursuant to the Transaction Documents only to
distribute routine communications, such as financial statements and other
information as provided in Section 7.02, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.
11.03 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 Costs and Expenses. The Borrowers, jointly and severally, shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Bank of America (including in its capacity as
Administrative Agent, Collateral Agent and Issuer) and the Arranger within 10
Business Days after demand for all reasonable costs and expenses incurred by
Bank of America (including in its capacity as Administrative Agent, Collateral
Agent and Issuer) and the Arranger in connection with the development,
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preparation, delivery, administration, syndication and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including reasonable Attorney Costs incurred by
Bank of America (including in its capacity as Administrative Agent, Collateral
Agent and Issuer) and the Arranger with respect thereto;
(b) pay or reimburse the Administrative Agent, the Collateral
Agent, the Issuer, the Arranger and each Lender within 10 Business Days after
demand for all costs and expenses (including reasonable Attorney Costs) incurred
by them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any other Loan
Document during the existence of an Event of Default or after acceleration of
the Loans (including in connection with any "workout" or restructuring regarding
the Loans, and including in any Insolvency Proceeding or appellate proceeding);
provided that in the case of reimbursement with respect to Attorney Costs for
the Lenders, in the absence of a conflict, such reimbursement shall be limited
to one counsel selected by the Administrative Agent; and
(c) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Bank of America (including in its capacity as
Administrative Agent and the Collateral Agent) within 10 Business Days after
demand for all reasonable appraisal (including the allocated cost of internal
appraisal services), audit, environmental inspection and review (including the
allocated cost of such internal services), search and filing costs, fees and
expenses, incurred or sustained by Bank of America (including in its capacity as
Administrative Agent and Collateral Agent) in connection with the matters
referred to under subsections (a) and (b) of this Section.
(d) The agreements in this Section 11.04 shall survive the
termination of the Aggregate Commitments and repayment of all other Obligations.
11.05 Borrower Indemnification.
(a) The Borrowers, jointly and severally, shall indemnify, defend
and hold the Agent-Related Persons, and each Lender and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of the Administrative Agent or
replacement of any Lender or assignment by any Lender of its Loans or
Commitments) be imposed on, incurred by or asserted against any Indemnified
Person arising out of this Agreement or any document contemplated by or referred
to herein, or the transactions contemplated hereby, or any action taken or
omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding (including
any Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement or the Loans or Letters of Credit or the use of the proceeds
thereof (including any refusal by the Issuer to honor a demand for payment under
a Letter of Credit if the documents
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presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Borrowers shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities resulting from (i)
the bad faith, gross negligence or willful misconduct of such Indemnified Person
or (ii) any proceeding initiated by the Administrative Agent or the Collateral
Agent against any Lender (except to the extent arising from a breach by such
Lender of its obligations hereunder) or by any Lender against the Administrative
Agent, Collateral Agent or any other Lender (except to the extent arising from a
breach by the Administrative Agent, Collateral Agent or such Lender, as the case
may be, of its obligations hereunder). The agreements in this Section shall
survive payment of all other Obligations.
(b) The Borrowers, jointly and severally, shall indemnify, defend
and hold harmless each Indemnified Person, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses or disbursements (including Attorney Costs), which may
be incurred by or asserted against such Indemnified Person in connection with or
arising out of any pending or threatened investigation, litigation or
proceeding, or any action taken by any Person, with respect to any Environmental
Claim arising out of or related to any property, whether or not subject to a
Mortgage in favor of the Administrative Agent, Collateral Agent or any Lender,
or arising out of or related to any operations of BHI or any Subsidiary (all of
the foregoing, collectively, the "Indemnified Environmental Liabilities");
provided that the Borrowers shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Environmental Liabilities to the
extent resulting from the bad faith, gross negligence or willful misconduct of
such Indemnified Person. No action taken by legal counsel chosen by the
Administrative Agent, the Collateral Agent or any Lender in defending against
any such investigation, litigation or proceeding or requested remedial, removal
or response action shall vitiate or in any way impair any Borrower's obligation
and duty hereunder to indemnify and hold harmless the Administrative Agent, the
Collateral Agent and each Lender.
(c) In no event shall any site visit, observation or testing by
the Administrative Agent or any Lender (or any contractee of the Administrative
Agent or any Lender) be deemed a representation or warranty that Hazardous
Materials are or are not present in, on, or under, the site, or that there has
been or shall be compliance with any Environmental Law. No Borrower nor any
other Person is entitled to rely on any site visit, observation, or testing by
the Administrative Agent or any Lender. Neither the Administrative Agent nor any
Lender owes any duty of care to protect the Borrowers or any other Person
against, or to inform the Borrowers or any other party of, any Hazardous
Materials or any other adverse condition affecting any site or property. The
Administrative Agent or any Lender shall, at the written request of the
applicable Borrower Representative, disclose to the Borrowers any report or
findings made as a result of, or in connection with, any site visit,
observation, or testing by the Administrative Agent or any Lender. The Borrowers
understand and agree that the Administrative Agent and the Lenders make no
warranty or representation to the Borrowers or any other Person regarding the
truth, accuracy or completeness of any such report or findings that may be
disclosed. The Borrowers also understand that, depending upon the results of any
site visit, observation or testing by the Administrative Agent or any Lender and
disclosed to the Borrowers, the Borrowers may have a legal obligation to notify
one or more environmental
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agencies of the results and that such reporting requirements are site-specific
and are to be evaluated by the Borrowers without advice or assistance from the
Administrative Agent or any Lender.
(d) The obligations in this Section shall survive payment of all
other Obligations. At the election of any Indemnified Person, the Borrowers
shall defend such Indemnified Person using legal counsel satisfactory to such
Indemnified Person in such Person's sole discretion, at the sole cost and
expense of the Borrowers. All amounts owing under this Section shall be paid
within 30 days after demand.
11.06 Marshalling; Payments Set Aside.
Neither the Administrative Agent, the Collateral Agent nor the Lenders
shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of the Borrowers
or any other Person or against or in payment of any or all of the Obligations.
To the extent that the Borrowers make a payment to the Administrative Agent, the
Collateral Agent or the Lenders, or the Administrative Agent, the Collateral
Agent or the Lenders enforce their liens, or exercise their right of set-off,
and such payment or the proceeds of such set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the Collateral Agent or such Lender in its discretion) to
be repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to
the Administrative Agent upon demand its pro rata share of any amount so
recovered from or repaid by the Administrative Agent or the Collateral Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.
11.07 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that no Loan Party may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent, the Collateral Agent and each Lender.
11.08 Assignments, Participations, etc.
(a) Any Lender may, with the written consent of the Borrower
Representatives at all times other than during the existence of an Event of
Default, and the Administrative Agent and the Issuers and the Swing Line Lender,
which consents shall not be unreasonably withheld or delayed, at any time
assign, pro rata, and delegate to one or more Eligible Assignees (each an
"Assignee") all, or any part of all, of the Loans, the Commitments, the L/C
Obligations and the other rights and obligations of such Lender hereunder, in a
minimum amount, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, of $1,000,000 or, if less, the total amount of
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such Lender's and its Affiliates outstanding Loans and/or Commitments; provided
that no written consent of the Borrower Representatives, the Administrative
Agent, the Swing Line Lender or an Issuer shall be required in connection with
any assignment and delegation by a Lender to an Eligible Assignee that is an
Affiliate of such Lender or any Approved Fund with respect to such Lender;
provided, further that no written consent of the Borrower Representatives, the
Administrative Agent, the Swing Line Lender or an Issuer shall be required in
connection with any assignment and delegation by a Lender to another Lender and
any such assignment may be in an amount less than the minimum amount specified
above; provided, still further, that the Borrower Representatives, the
Administrative Agent and the Collateral Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Borrower Representatives and the Administrative
Agent by such Lender and the Assignee; (ii) such Lender and its Assignee shall
have delivered to the Company and the Administrative Agent an Assignment and
Acceptance in the form of Exhibit D ("Assignment and Acceptance") and (iii) the
assignor Lender or Assignee has paid to the Administrative Agent a processing
fee in the amount of $3,500; and provided, still further, that any such
assignment by a Lender hereunder shall be of such Lender's Pro Rata share of
outstanding Loans, Commitments, and L/C Obligations to the Borrowers.
(b) From and after the date that the Administrative Agent notifies
the assignor Lender that it has received (and, if required, provided its consent
with respect to) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the Commitments of, and principal
amount of the Loans owing to, each Lender from time to time. The entries in such
register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Administrative Agent and the Lenders shall treat each person
whose name is recorded in such register as the owner of the Commitments and the
Loans recorded therein for all purposes of this Agreement. The register shall be
available for inspection by any Borrower, any Lender and their representatives,
at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time sell to one or more commercial
banks or other Persons not Affiliates of BHI (a "Participant") participating
interests in any Loans, the Commitment of that Lender and the other interests of
that Lender (the "Originating Lender") hereunder and under the other Loan
Documents; provided, however, that (i) the Originating Lender's obligations
under this Agreement shall remain unchanged, (ii) the Originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Loan Parties, the Issuer, the Administrative Agent and the Collateral Agent
shall continue to deal solely and
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directly with the Originating Lender in connection with the Originating Lender's
rights and obligations under this Agreement and the other Loan Documents, and
(iv) no Lender shall transfer or grant any participating interest under which
the Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
as described in clause (i) of the first proviso of Section 11.01 and clause (1)
of the second proviso of Section 11.01 (but only in respect of any increase of
any Commitment of any Originating Lender). In the case of any such
participation, the Participant shall be entitled to the benefit of Sections
4.01, 4.03, 4.04, 11.04 and 11.05 as though it were also a Lender hereunder (but
such Participant shall not be entitled to any amount pursuant to such Sections
in excess of the amount that would have been payable to the applicable Lender
had such participation not been sold), and if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement.
(e) Notwithstanding any other provision in this Agreement, (i) any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and Loans held by it
in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB
or U.S. Treasury Regulations 31 CFR Section 203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law.
11.09 Confidentiality.
(a) The parties hereto hereby agree that each party hereto (and
each of their respective, and their respective affiliates', employees, officers,
directors, agents and advisors) is, and has been from the commencement of
discussions with respect to this credit facility, permitted to disclose to any
and all Persons, without limitation of any kind, the tax structure and tax
aspects (as such terms are used in Internal Revenue Code Sections 6011, 6111 and
6112 and the regulations promulgated thereunder) of this credit facility, and
all materials of any kind (including tax opinions or other tax analyses) that
are or have been provided to such parties related to such tax structure and tax
aspects. Each party hereto further acknowledges and agrees that its disclosure
of the tax structure or tax aspects of this credit facility is not limited in
any way by any express or implied understanding or agreement, oral or written
(whether or not such understanding or agreement is legally binding).
Furthermore, each of the parties hereto acknowledges and agrees that it does not
know or have reason to know that its use or disclosure of information relating
to the tax structure or tax aspects of this credit facility is limited in any
other manner (such as where this Agreement is claimed to be proprietary or
exclusive with respect to the tax treatment or tax aspects of this credit
facility) for the benefit of any other Person. To the extent that disclosure of
the tax structure or tax aspects of this credit facility by any party hereto is
limited by any existing agreement between such parties, such limitation is
agreed to be void ab initio and such agreement is hereby amended to permit
disclosure of the tax structure and tax aspects of this credit facility as
provided in this paragraph (a).
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(b) Subject to paragraph (a) above, each Lender agrees to take and
to cause its Affiliates to take normal and reasonable precautions and exercise
due care to maintain the confidentiality of all information provided to it by
BHI, the Company or any Subsidiary, or by the Administrative Agent on BHI's, the
Company's or such Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents or in connection with other business now or
hereafter existing or contemplated with BHI, the Company or any Subsidiary;
except to the extent such information (i) was or becomes generally available to
the public other than as a result of disclosure by the Lender or its Affiliates,
or (ii) was or becomes available on a non-confidential basis from a source other
than the Company, provided that such source is not bound by a confidentiality
agreement with the Company known to the Lender; provided, however, that any
Lender may disclose such information (A) at the request or pursuant to any
requirement of any Governmental Authority to which the Lender is subject or in
connection with an examination of such Lender by any such authority; (B)
pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or proceeding
involving BHI or any Subsidiary to which the Administrative Agent, the
Collateral Agent, any Lender or their respective Affiliates may be party; (E) to
the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to such Lender's independent
auditors and other professional advisors; (G) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Lenders hereunder;
(H) as to any Lender or its Affiliate, as expressly permitted under the terms of
any other document or agreement regarding confidentiality to which BHI or any
Subsidiary is party or is deemed party with such Lender or such Affiliate; (I)
to its Affiliates, provided that each such Affiliate is advised of and agrees to
be bound by the confidentiality requirements set forth herein; and (J) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about such Lender's investment portfolio in connection with ratings issued with
respect to such Lender. In addition, the Administrative Agent, the Collateral
Agent and the Lenders may disclose the existence of this Agreement to gold
sheets and any similar trade publications, together with any other information
typically disclosed to, or customarily found in, such publications.
11.10 Set-off.
In addition to any rights and remedies of the Lenders provided by law, if
(i) the Loans have been accelerated or (ii) an Event of Default has occurred and
is continuing and such Lender has obtained the consent of the Required Lenders,
each Lender is authorized at any time and from time to time, without prior
notice to the Company or BHI, any such notice being waived by the Company or BHI
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the Company or BHI against any and all Obligations
owing to such Lender, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender shall have made demand under this
Agreement or any Loan Document and although such Obligations may be contingent
or unmatured. Each Lender agrees promptly to notify the Borrower Representatives
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and the Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
11.11 Automatic Debits of Fees.
With respect to any commitment fee, arrangement fee, Continuation Fee,
letter of credit fee or other fee, or any other cost or expense (including
Attorney Costs) due and payable to the Administrative Agent, the Collateral
Agent, the Issuer or the Arranger under the Loan Documents, each Borrower hereby
irrevocably authorizes Bank of America to debit any deposit account of such
Borrower with Bank of America in an amount such that the aggregate amount
debited from all such deposit accounts does not exceed such fee or other cost or
expense. If there are insufficient funds in such deposit accounts to cover the
amount of the fee or other cost or expense then due, such debits will be
reversed so as not to create an overdraft (in whole or in part, in Bank of
America's sole discretion) and such amount not debited shall be deemed to be
unpaid. No such debit under this Section shall be deemed a set-off.
11.12 Notification of Addresses, Lending Offices, Etc.
Each Lender shall notify the Administrative Agent in writing of any
changes in the address to which notices to the Lender should be directed, of
addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative information
as the Administrative Agent shall reasonably request.
11.13 Counterparts.
This Agreement may be executed in any number of separate counterparts,
each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument.
11.14 Severability.
The illegality or unenforceability of any provision of this Agreement or
any instrument or agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
11.15 No Third Parties Benefited.
This Agreement is made and entered into for the sole protection and legal
benefit of BHI, each Borrower, the Lenders, the Administrative Agent and the
Agent-Related Persons, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents.
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11.16 GOVERNING LAW AND JURISDICTION.
(A) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF ILLINOIS (WITHOUT
REGARD TO CONFLICT OF LAWS PROVISIONS THEREOF); PROVIDED THAT THE BORROWERS,
BHI, THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF BHI, EACH BORROWER, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND EACH LENDER CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH OF BHI, EACH BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL
AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING 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 ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. BHI,
EACH BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
11.17 WAIVER OF JURY TRIAL.
BHI, EACH BORROWER, EACH LENDER, THE ADMINISTRATIVE AGENT AND THE
COLLATERAL AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. BHI, EACH BORROWER, THE LENDERS, THE ADMINISTRATIVE AGENT AND THE
COLLATERAL AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL
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APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.18 Judgment.
If, for the purposes of obtaining judgment in any court, it is necessary
to convert a sum due hereunder or under any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of BHI or any
Subsidiary in respect of any such sum due from it to the Administrative Agent,
the Collateral Agent or any Lender hereunder or under the other Loan Documents
shall, notwithstanding any judgment in a currency (the "Judgment Currency")
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the "Agreement Currency"), be
discharged only to the extent that on the Business Day following receipt by the
Administrative Agent or such Lender of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent or such Lender may in accordance
with normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Administrative Agent or such Lender in the Agreement
Currency, each Loan Party, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or such Lender or the Person to
whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the
Administrative Agent or such Lender in such currency, the Administrative Agent
or such Lender agrees to return the amount of any excess to the applicable Loan
Party (or to any other Person who may be entitled thereto under applicable law).
11.19 Intercreditor Agreement.
(a) Each Lender, the Collateral Agent, the Administrative Agent,
the Swing Line Lender and each Issuer hereby acknowledge that prior to the date
hereof the Hedge Counterparty entered into the Hedge Agreement with the Company,
pursuant to which the Company may in the future be obligated to pay certain
amounts to the Hedge Counterparty. Each such party hereby further acknowledges
that such obligations of the Company to the Hedge Counterparty are secured
pursuant to the Collateral Documents, and each such party, by executing this
Agreement, hereby agrees that such obligations shall be secured on a pari passu
basis with the Obligations and that the Hedge Counterparty shall be entitled to
share in the proceeds of the Collateral, on a pari passu basis, with the Lenders
as if the Hedge Counterparty were a Lender hereunder with outstanding Loans with
a principal amount equal to the outstanding obligations owing by the Company to
the Hedge Counterparty under the Hedge Agreement at such time; provided that
this Section 11.19 shall not apply to any obligations under the Hedge Agreement
that arise pursuant to any amendment or extension to the Hedge Agreement
executed or effective after the Closing Date unless all of the Lenders shall
have consented to such amendment.
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(b) Each Lender, the Swing Line Lender and each Issuer hereby
acknowledge and agree that the Collateral Documents and the Collateral shall
secure the Obligations owing to such parties hereunder on a pari passu basis.
11.20 Entire Agreement.
This Agreement, together with the other Loan Documents, embodies the
entire agreement and understanding among the Loan Parties, the Lenders, the
Administrative Agent and the Collateral Agent and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
ARTICLE XII
GUARANTIES OF U.S. GUARANTORS
12.01 The Guaranties.
(a) In order to induce the Administrative Agent and the Lenders to
enter into this Agreement and to extend credit hereunder and in recognition of
the direct benefits to be received by each of the U.S. Guarantors and their
respective Affiliates and Subsidiaries, each of the U.S. Guarantors hereby,
jointly and severally, absolutely, irrevocably and unconditionally guarantees
the full and prompt payment when due, whether by acceleration or otherwise, and
at all times thereafter, all of the Guaranteed Obligations, whether direct or
indirect, absolute or contingent, or now or hereafter existing, or due or to
become due, and each of the U.S. Guarantors further agrees, jointly and
severally, to pay all expenses (including reasonable attorneys' fees and legal
expenses) paid or incurred by any holder of any Guaranteed Obligations in
endeavoring to collect the Guaranteed Obligations, or any part thereof, and in
enforcing this Agreement; provided, however, that the U.S. Guarantors shall each
only be liable under this Article XII for the maximum amount of such liability
that can be hereby incurred without rendering the agreements set forth in this
Article XII, as it relates to the U.S. Guarantors, as applicable, voidable under
any applicable law relating to fraudulent conveyance or fraudulent transfer, and
not for any greater amount. This Guaranty constitutes a guaranty of payment when
due and not of collection, and each of the U.S. Guarantors specifically agrees
that it shall not be necessary or required that any Guaranteed Creditor exercise
any right, assert any claim or demand, or enforce any remedy whatsoever against
any Borrower (or any other Person or any other Guarantor) before or as a
condition to the obligations of the U.S. Guarantors hereunder.
(b) Each U.S. Guarantor agrees that, in the event of the
dissolution or insolvency of any Borrower or any Subsidiary, or the inability of
any Borrower or any Subsidiary to pay debts as they mature, or an assignment by
any Borrower or any Subsidiary for the benefit of creditors, or the institution
of any proceeding by or against any Borrower or any Subsidiary alleging that any
Borrower or any Subsidiary is insolvent or unable to pay its debts as they
mature (subject to any applicable cure period provided herein), and if such
event shall occur at a time when an Event of Default has occurred and is
continuing, but any or all of the Guaranteed Obligations may not then be due and
payable, each U.S. Guarantor will pay, on a joint and several basis, to the
relevant Guaranteed Creditor forthwith the full amount that would
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be payable hereunder by each of the U.S. Guarantors, on a joint and several
basis, if all Guaranteed Obligations were then due and payable.
(c) The joint and several obligations of each U.S. Guarantor under
this Article XII shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any U.S. Guarantor or
that at any time or from time to time all Guaranteed Obligations may have been
paid in full), subject to discontinuance as to any U.S. Guarantor only upon
execution by the Administrative Agent of a written notice, delivered in
accordance with the terms of the Agreement, acknowledging the termination of all
obligations of such U.S. Guarantor, as the case may be, arising hereunder.
12.02 Returned Payments.
Each U.S. Guarantor further agrees that, if at any time all or any part of
any payment theretofore applied by any Guaranteed Creditor to any of the
Guaranteed Obligations is or must be rescinded or returned by such Guaranteed
Creditor for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of any Loan Party), such Guaranteed
Obligations shall, for the purposes of this Guaranty, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by such Guaranteed Creditor, and
this Guaranty shall continue to be effective or be reinstated, as the case may
be, as to such Guaranteed Obligations, all as though such application by such
Guaranteed Creditor had not been made.
12.03 Authorization.
Any Guaranteed Creditor may, from time to time, whether before or after
any discontinuance of the agreement set forth in this Article XII, at its sole
discretion and without notice to any U.S. Guarantor, take any or all of the
following actions: (i) retain or obtain a security interest in any property of
any third party to secure any of the Guaranteed Obligations or any obligation
hereunder; (ii) retain or obtain the primary or secondary obligation of any
obligor or obligors, in addition to the U.S. Guarantors, with respect to any of
the Guaranteed Obligations; (iii) extend or renew for one or more periods
(whether or not longer than the original period), alter, amend or exchange any
of the Guaranteed Obligations or any of the documentation pertaining thereto, or
release or compromise any obligation of any U.S. Guarantor hereunder or any
obligation of any nature of any other obligor with respect to any of the
Guaranteed Obligations; (iv) release its security interest in, or surrender,
release or permit any substitution or exchange for, all or any part of any
property securing any of the Guaranteed Obligations or any obligation hereunder,
or extend or renew for one or more periods (whether or not longer than the
original period) or release, compromise, alter or exchange any obligations of
any nature of any obligor with respect to any such property; and (v) resort to
any U.S. Guarantor for payment of any of the Guaranteed Obligations, whether or
not such Guaranteed Creditor (x) shall have resorted to any property securing
any of the Guaranteed Obligations or any obligation hereunder or (y) shall have
proceeded against any other obligor primarily or secondarily obligated with
respect to any of the Guaranteed Obligations (all of the actions referred to in
preceding clauses (x) and (y) being hereby expressly waived by each of the U.S.
Guarantors).
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Nothing in this Article XII shall in any way modify the respective rights and
obligations of the Lenders amongst themselves as otherwise provided in this
Agreement.
12.04 Miscellaneous.
(a) Any amounts received by a Guaranteed Creditor from whatsoever
source on account of the Guaranteed Obligations may be applied by it toward the
payment of such of the Guaranteed Obligations, and in such order of application,
as set forth in the Collateral Documents.
(b) Each U.S. Guarantor hereby expressly waives: (i) notice of the
acceptance by any Guaranteed Creditor of this Agreement, (ii) notice of the
existence or creation or nonpayment of all or any of the Guaranteed Obligations,
(iii) presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, and (iv) all diligence in collection or protection of or realization
upon the Guaranteed Obligations or any thereof, any obligation hereunder, or any
security for or guaranty of any of the foregoing.
(c) Until the irrevocable payment in full of all of the Guaranteed
Obligations (other than Guaranteed Obligations under the relevant agreement with
a Guaranteed Creditor which expressly survive the termination of such agreement)
and termination of the Aggregate Commitment, (i) each U.S. Guarantor waives any
right of subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including any claim or right of
subrogation under the Bankruptcy Code or any successor statute, against any
Borrower arising from the existence or performance of this Agreement and (ii)
each U.S. Guarantor waives any right to enforce any remedy which any Guaranteed
Creditor now has or may hereafter have against the Company, and waives any
benefit of, and any right to participate in, any security now or hereafter held
by a Guaranteed Creditor securing the Guaranteed Obligations.
(d) Any Guaranteed Creditor may, from time to time, whether before
or after any discontinuance of this Agreement, without notice to any U.S.
Guarantor, assign or transfer any or all of the Guaranteed Obligations or any
interest therein as provided in this Agreement; and, notwithstanding any such
assignment or transfer or any subsequent assignment or transfer thereof, such
Guaranteed Obligations shall be and remain Guaranteed Obligations for the
purposes of this Agreement, and each and every immediate and successive assignee
or transferee of any of the Guaranteed Obligations or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Guaranteed Obligations, be entitled to the benefits of this Guaranty to the same
extent as if such assignee or transferee were a Guaranteed Creditor.
(e) Each U.S. Guarantor hereby warrants to each Guaranteed
Creditor that each U.S. Guarantor, as applicable, now has and will continue to
have independent means of obtaining information concerning the affairs,
financial condition and business of the Borrowers. No Guaranteed Creditor shall
have any duty or responsibility to provide any U.S. Guarantor with any credit or
other information concerning the affairs, financial condition or business of any
Borrower that may come into the possession of such Guaranteed Creditor.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
COMMERCIAL VEHICLE SYSTEMS LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: _________________________________________
Title: ________________________________________
KAB SEATING LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: _________________________________________
Title: ________________________________________
NATIONAL SEATING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: _________________________________________
Title: ________________________________________
COMMERCIAL VEHICLE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: _________________________________________
Title: ________________________________________
▇▇▇▇▇▇▇ HOLDING, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: _________________________________________
Title: ________________________________________
AMENDED AND RESTATED
CREDIT AGREEMENT
S-1
CVS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: _________________________________________
Title: ________________________________________
BANK OF AMERICA, N.A.,
As Administrative Agent and Collateral Agent
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Title: VICE PRESIDENT
----------------------------------------
BANK OF AMERICA, N.A., individually as a
Lender, Issuer and as Swing Line Lender
By: /s/ [ILLEGIBLE]
-------------------------------------------
Name: [ILLEGIBLE]
-----------------------------------------
Title: Managing Director
----------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
----------------------------------------
COMERICA BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: CORPORATE LOAN OFFICER
----------------------------------------
Amended and Restated
Credit Agreement
S-2
BANK ONE N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: V.P.
----------------------------------------
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Title: VICE PRESIDENT
----------------------------------------
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
-----------------------------------------
Title: VICE PRESIDENT
----------------------------------------
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Title: DIRECTOR
----------------------------------------
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: DIRECTOR
----------------------------------------
Amended and Restated
Credit Agreement
S-3