EXHIBIT 10(x)
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REVOLVING CREDIT AND GUARANTY AGREEMENT
Among
USG CORPORATION AND CERTAIN OF ITS
SUBSIDIARIES, Debtors and Debtors-in-Possession under
Chapter 11 of the Bankruptcy Code
as Borrowers
and
USG FOREIGN INVESTMENTS, LTD.,
as Guarantor
and
THE LENDERS PARTY HERETO,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of June 25, 2001
98
REVOLVING CREDIT AND GUARANTY AGREEMENT
TABLE OF CONTENTS
Page No.
SECTION 1. DEFINITIONS.........................................................................................104
SECTION 1.1 Defined Terms...................................................................................104
SECTION 1.2 Terms Generally.................................................................................118
SECTION 2. AMOUNT AND TERMS OF CREDIT..........................................................................118
SECTION 2.1 Commitment of the Lenders.......................................................................118
SECTION 2.2 Availability of Commitment; Borrowing Base......................................................119
SECTION 2.3 Letters of Credit...............................................................................119
SECTION 2.4 Issuance........................................................................................121
SECTION 2.5 Nature of Letter of Credit Obligations Absolute.................................................121
SECTION 2.6 Making of Loans.................................................................................122
SECTION 2.7 Repayment of Loans; Evidence of Debt............................................................123
SECTION 2.8 Interest on Loans...............................................................................123
SECTION 2.9 Default Interest................................................................................124
SECTION 2.10 Optional Termination or Reduction of Commitment................................................124
SECTION 2.11 Alternate Rate of Interest.....................................................................124
SECTION 2.12 Refinancing of Loans...........................................................................124
SECTION 2.13 Mandatory Prepayment; Commitment Termination...................................................125
SECTION 2.14 Optional Prepayment of Loans; Reimbursement of Lenders.........................................126
SECTION 2.15 Reserve Requirements; Change in Circumstances..................................................128
SECTION 2.16 Change in Legality.............................................................................129
SECTION 2.17 Pro Rata Treatment, etc........................................................................129
SECTION 2.18 Taxes..........................................................................................130
SECTION 2.19 Certain Fees...................................................................................132
SECTION 2.20 Commitment Fee.................................................................................132
SECTION 2.21 Letter of Credit Fees..........................................................................132
SECTION 2.22 Nature of Fees.................................................................................133
SECTION 2.23 Priority and Liens.............................................................................133
SECTION 2.24 Right of Set-Off...............................................................................134
SECTION 2.25 Security Interest in Letter of Credit Account..................................................135
SECTION 2.26 Payment of Obligations.........................................................................135
SECTION 2.27 No Discharge; Survival of Claims...............................................................135
SECTION 2.28 Replacement of Certain Lenders.................................................................135
SECTION 3. REPRESENTATIONS AND WARRANTIES.....................................................................136
SECTION 3.1 Organization and Authority......................................................................136
SECTION 3.2 Due Execution...................................................................................136
SECTION 3.3 Statements Made.................................................................................137
SECTION 3.4 Financial Statements............................................................................137
SECTION 3.5 Ownership.......................................................................................138
99
SECTION 3.6 Liens...........................................................................................138
SECTION 3.7 Compliance with Law.............................................................................138
SECTION 3.8 Insurance.......................................................................................138
SECTION 3.9 The Orders......................................................................................139
SECTION 3.10 Use of Proceeds................................................................................139
SECTION 3.11 Litigation.....................................................................................139
SECTION 3.12 Intellectual Property..........................................................................139
SECTION 4. CONDITIONS OF LENDING...............................................................................139
SECTION 4.1 Conditions Precedent to Initial Loan and Initial Letter of Credit...............................139
SECTION 4.2 Conditions Precedent to Each Loan and Each Letter of Credit.....................................142
SECTION 5. AFFIRMATIVE COVENANTS...............................................................................143
SECTION 5.1 Financial Statements, Reports, etc..............................................................143
SECTION 5.2 Existence.......................................................................................145
SECTION 5.3 Insurance.......................................................................................146
SECTION 5.4 Obligations and Taxes...........................................................................146
SECTION 5.5 Notice of Event of Default, etc.................................................................146
SECTION 5.6 Access to Books and Records.....................................................................146
SECTION 5.7 Maintenance of Concentration Account............................................................147
SECTION 5.8 Borrowing Base Certificate......................................................................147
SECTION 5.9 Budget..........................................................................................148
SECTION 6. NEGATIVE COVENANTS..................................................................................148
SECTION 6.1 Liens...........................................................................................148
SECTION 6.2 Merger, etc.....................................................................................148
SECTION 6.3 Indebtedness....................................................................................148
SECTION 6.4 Capital Expenditures............................................................................149
SECTION 6.5 EBITDA..........................................................................................149
SECTION 6.6 Guarantees and Other Liabilities................................................................149
SECTION 6.7 Chapter 11 Claims...............................................................................149
SECTION 6.8 Dividends; Capital Stock........................................................................149
SECTION 6.9 Transactions with Affiliates....................................................................149
SECTION 6.10 Investments, Loans and Advances................................................................150
SECTION 6.11 Disposition of Assets..........................................................................150
SECTION 6.12 Nature of Business.............................................................................150
SECTION 6.13 Transactions among Borrowers...................................................................150
SECTION 6.14 Right of Subrogation among Borrowers...........................................................150
SECTION 7. EVENTS OF DEFAULT...................................................................................150
SECTION 7.1 Events of Default...............................................................................150
100
SECTION 8. THE ADMINISTRATIVE AGENT............................................................................154
SECTION 8.1 Administration by Administrative Agent..........................................................154
SECTION 8.2 Advances and Payments...........................................................................155
SECTION 8.3 Sharing of Setoffs..............................................................................155
SECTION 8.4 Agreement of Required Lenders...................................................................155
SECTION 8.5 Liability of Administrative Agent...............................................................156
SECTION 8.6 Reimbursement and Indemnification...............................................................156
SECTION 8.7 Rights of Administrative Agent..................................................................157
SECTION 8.8 Independent Lenders.............................................................................157
SECTION 8.9 Notice of Transfer..............................................................................157
SECTION 8.10 Successor Administrative Agent.................................................................157
SECTION 9. GUARANTY............................................................................................158
SECTION 9.1 Guaranty........................................................................................158
SECTION 9.2 No Impairment of Guaranty.......................................................................159
SECTION 9.3 Subrogation.....................................................................................159
SECTION 10. MISCELLANEOUS......................................................................................159
SECTION 10.1 Notices........................................................................................159
SECTION 10.2 Survival of Agreement, Representations and Warranties, etc.....................................159
SECTION 10.3 Successors and Assigns.........................................................................160
SECTION 10.4 Confidentiality................................................................................162
SECTION 10.5 Expenses.......................................................................................162
SECTION 10.6 Indemnity......................................................................................163
SECTION 10.7 Choice of Law..................................................................................163
SECTION 10.8 No Waiver......................................................................................163
SECTION 10.9 Extension of Maturity..........................................................................163
SECTION 10.10 Amendments, etc...............................................................................164
SECTION 10.11 Severability..................................................................................165
SECTION 10.12 Headings......................................................................................165
SECTION 10.13 Execution in Counterparts.....................................................................165
SECTION 10.14 Prior Agreements..............................................................................165
SECTION 10.15 Further Assurances............................................................................165
SECTION 10.16 Waiver of Jury Trial..........................................................................165
SECTION 10.17 Foreign Subsidiaries..........................................................................165
SECTION 10.18 Subordination of Intercompany Indebtedness....................................................166
SECTION 10.19 Certain Post Closing Matters..................................................................167
Annex A - Commitment Amounts
Exhibit A-1 - Form of Interim Order
Exhibit A-2 - Form of Final Order
Exhibit B - Form of Security and Pledge Agreement
Exhibit C - Form of Opinion of Counsel
101
Exhibit D - Form of Assignment and Acceptance
Schedule 3.5 - Subsidiaries
Schedule 3.6 - Liens
Schedule 3.12 - Intellectual Property
Schedule 6.10 - Intercompany Indebtedness
Schedule 6.13 - Borrower Transaction Restrictions
102
REVOLVING
CREDIT AND GUARANTY AGREEMENT
Dated as of June 25, 2001
REVOLVING
CREDIT AND GUARANTY AGREEMENT, dated as of June 25, 2001,
among
USG CORPORATION a Delaware corporation ("PARENT") and each of the direct
and indirect subsidiaries of the Parent party to this Agreement (each
individually a "BORROWER" and collectively the "BORROWERS"), each of which is a
debtor and debtor-in-possession in a case pending under Chapter 11 of the
Bankruptcy Code (the cases of the Borrowers, each a "CASE" and collectively, the
"CASES"), USG FOREIGN INVESTMENTS, LTD., a Delaware corporation (the
"GUARANTOR"), THE CHASE MANHATTAN BANK, a New York banking corporation
("CHASE"), and each of the other commercial banks, finance companies, insurance
companies or other financial institutions or funds from time to time party
hereto (together with Chase, the "LENDERS") and THE CHASE MANHATTAN BANK, as
agent (in such capacity, the "ADMINISTRATIVE AGENT") for the Lenders.
INTRODUCTORY STATEMENT
WHEREAS, on June 25, 2001, the Borrowers filed voluntary
petitions with the Bankruptcy Court initiating the Cases and have continued in
the possession of their assets and in the management of their businesses
pursuant to Sections 1107 and 1108 of the Bankruptcy Code; and
WHEREAS, the Borrowers have applied to the Lenders for a
revolving credit and letter of credit facility in an aggregate principal amount
not to exceed $350,000,000, all of the Borrowers' obligations under which are to
be guaranteed by the Guarantor; and
WHEREAS, the proceeds of the Loans will be used for working
capital and other general corporate purposes of the Borrowers; and
WHEREAS, to provide for the repayment of the Loans, the
reimbursement of any draft drawn under a Letter of Credit and the payment of the
other obligations of the Borrowers and the Guarantor hereunder and under the
other Loan Documents (including, without limitation, the Obligations of the
Borrowers under Section 6.3(v)), the Borrowers and the Guarantor will provide to
the Administrative Agent and the Lenders the following (each as more fully
described herein):
(a) a guaranty from the Guarantor of the due and punctual
payment and performance of the obligations of the Borrowers hereunder;
(b) an allowed Superpriority Claim;
(c) a perfected first priority Lien, pursuant to Section
364(c)(2) of the Bankruptcy Code, upon all unencumbered property of the
Borrowers and on all cash and cash equivalents in the Letter of Credit Account,
provided that following the Termination Date, amounts in the Letter of Credit
Account shall not be subject to the Carve-Out hereinafter referred to;
103
(d) a perfected Lien, pursuant to Section 364(c)(3) of the
Bankruptcy Code, upon all property of the Borrowers that is subject to valid and
perfected Permitted Liens in existence on the Filing Date or that is subject to
valid Permitted Liens in existence on the Filing Date that are perfected
subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy
Code;
(e) a perfected first priority priming Lien, pursuant to
Section 364(d)(1) of the Bankruptcy Code, upon all property of the Borrower
(including, without limitation, inventory, accounts receivable, rights under
license agreements, property, plant and equipment, interests in leaseholds, and
the capital stock of the direct and indirect Subsidiaries of the Borrowers,
limited, in the case of an entity that is a controlled foreign corporation under
Section 957 of the Code, to 66% of the voting stock of such entity) that is
subject to any existing Liens (except Permitted Liens), which first priority
priming Liens in favor of the Administrative Agent and the Lenders shall be
senior in all respects to all of such existing Liens (except Permitted Liens);
(f) in the case of the Guarantor, a perfected first priority
Lien upon all property of the Guarantor (including, without limitation,
inventory, accounts receivable, rights under license agreements, property, plant
and equipment, interests in leaseholds, and the capital stock of the direct and
indirect Subsidiaries of the Borrowers, limited, in the case of an entity that
is a controlled foreign corporation under Section 957 of the Code, to 66% of the
voting stock of such entity); and
WHEREAS, all of the claims granted hereunder in the Cases to
the Administrative Agent and the Lenders shall be subject to the Carve-Out to
the extent provided in Section 2.23.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
SECTION 1.1 Defined Terms.
As used in this Agreement, the following terms shall have the
meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Section 2.
"ACCOUNT" shall mean any right to payment for goods sold,
regardless of how such right is evidenced and whether or not it has been earned
by performance.
"ADDITIONAL CREDIT" shall have the meaning given such term in
Section 4.2(d).
"ADJUSTED LIBOR RATE" shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the quotient of
(a) the LIBOR Rate in effect for such Interest Period divided
104
by (b) a percentage (expressed as a decimal) equal to 100% minus Statutory
Reserves. For purposes hereof, the term "LIBOR RATE" shall mean the rate
(rounded upwards, if necessary, to the next 1/16 of 1%) at which dollar deposits
approximately equal in principal amount to such Eurodollar Borrowing and for a
maturity comparable to such Interest Period are offered to the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two (2) Business Days
prior to the commencement of such Interest Period.
"ADMINISTRATIVE AGENT" shall have the meaning set forth in the
Introduction.
"AFFECTED LENDER" shall have the meaning given such term in
Section 2.28.
"AFFILIATE" shall mean, 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. For purposes of this definition, a Person (a
"CONTROLLED PERSON") shall be deemed to be "controlled by" another Person (a
"CONTROLLING PERSON") if the Controlling Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of the Controlled Person whether by contract or otherwise.
"AGREEMENT" shall mean this Revolving Credit Agreement, as the
same may from time to time be further amended, modified or supplemented.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof, "PRIME RATE" shall mean the rate
of interest per annum publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is publicly
announced. "BASE CD RATE" shall mean the sum of (a) the quotient of (i) the
Three-Month Secondary CD Rate divided by (ii) a percentage expressed as a
decimal equal to 100% minus Statutory Reserves and (b) the Assessment Rate.
"THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it. "FEDERAL
FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent
105
from three Federal funds brokers of recognized standing selected by it. If for
any reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Base CD Rate or the Federal Funds Effective Rate or both for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms hereof, the Alternate Base
Rate shall be determined without regard to clause (b) or (c), or both, of the
first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"AMOUNTS" shall have the meaning given such term in Section
2.18(a).
"APPLICABLE COMMITMENT FEE PERCENTAGE" shall mean a
percentage, per annum, determined by reference to the Total Usage from time to
time as set forth below:
APPLICABLE COMMITMENT FEE
TOTAL USAGE PERCENTAGE
----------- -------------------------
less than $200,000,000 0.50%
greater than or equal to $200,000,000 0.375%
The Applicable Commitment Fee Percentage shall change, as applicable, effective
on the date the Total Usage changes.
"APPLICABLE MARGIN" shall mean a percentage, per annum,
determined by reference to the Total Usage from time to time as set forth below:
APPLICABLE MARGIN FOR ABR APPLICABLE MARGIN FOR EURODOLLAR
TOTAL USAGE BORROWINGS BORROWINGS
----------- ------------------------- --------------------------------
less than $200,000,000 0.50% 2.00%
greater than or equal to $200,000,000 1.00% 2.50%
The Applicable Margin shall change, as applicable, including as to all
outstanding Loans and Letters of Credit, effective on the date the Total Usage
changes.
"ASSESSMENT RATE" shall mean for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most recently estimated
by the Administrative Agent as the then current net annual assessment rate that
will be employed in determining amounts payable by the Administrative Agent to
the Federal Deposit Insurance Corporation (or any successor) for
106
insurance by such Corporation (or any successor) of time deposits made in
dollars at the Administrative Agent's domestic offices.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and accepted by
the Administrative Agent, substantially in the form of Exhibit C.
"AVAILABLE COMMITMENT" shall have the meaning given such term
in Section 2.2.
"BANKRUPTCY CODE" shall mean The Bankruptcy Reform Act of
1978, as heretofore and hereafter amended, and codified as 11 U.S.C. Section 101
et seq.
"BANKRUPTCY COURT" shall mean the United States Bankruptcy
Court for the District of Delaware or any other court having jurisdiction over
the Cases from time to time.
"BOARD" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"BORROWER" and "BORROWERS" shall have the respective meanings
set forth in the Introduction.
"BORROWING" shall mean the incurrence of Loans of a single
Type made from all the Lenders on a single date and having, in the case of
Eurodollar Loans, a single Interest Period (with any ABR Loan made pursuant to
Section 2.16 being considered a part of the related Borrowing of Eurodollar
Loans).
"BORROWING BASE" shall mean, on any date from and after the
expiration of the Initial Period, the amount (which may include certain
inventory and accounts receivable of the Borrowers meeting certain eligibility
standards determined by the Administrative Agent and a component (the "PP&E
COMPONENT") determined by the Administrative Agent with reference to certain
property, plant and equipment of the Borrowers) determined by the Administrative
Agent. Borrowing Base standards may be fixed and revised from time to time
solely by the Administrative Agent in the Administrative Agent's exclusive
judgment. The PP&E Component shall at no time exceed 20% of the Borrowing Base.
"BORROWING BASE CERTIFICATE" shall mean a certificate in a
form satisfactory to the Administrative Agent (with such changes therein as may
be required by the Administrative Agent from time to time to reflect the
components of and reserves against the Borrowing Base as provided for hereunder
from time to time), executed and certified by a Financial Officer of the Parent,
which shall include appropriate exhibits and schedules as referred to therein
and as provided for in Section 5.8.
"BUDGET" shall have the meaning set forth in Section 5.9.
"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or other day on which banks in the State of New York are required or
permitted to close (and, for a Letter of Credit, other than a day on which the
Fronting Bank issuing such Letter of Credit is closed); provided, however, that
when used in connection with a Eurodollar Loan, the term "Business
107
Day" shall also exclude any day on which banks are not open for dealings in
dollar deposits on the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash and not theretofore accrued
subsequent to the date of this Agreement or accrued as liabilities during such
period and including that portion of Capitalized Leases which is capitalized on
the consolidated balance sheet of the Borrowers and their Subsidiaries) by the
Borrowers and their Subsidiaries during such period that, in conformity with
GAAP, are required to be included in or reflected by the property, plant,
equipment or intangibles or similar fixed asset accounts reflected in the
consolidated balance sheet of the Borrowers and their Subsidiaries (including
equipment which is purchased simultaneously with the trade-in of existing
equipment owned by any of the Borrowers or their Subsidiaries to the extent of
the gross amount of such purchase price less the book value of the equipment
being traded in at such time), but excluding expenditures made in connection
with the replacement or restoration of assets, to the extent reimbursed or
financed from insurance proceeds paid on account of the loss of or the damage to
the assets being replaced or restored, or from awards of compensation arising
from the taking by condemnation or eminent domain of such assets being replaced.
"CAPITALIZED LEASE" shall mean, as applied to any Person, any
lease of property by such Person as lessee which would be capitalized on a
balance sheet of such Person prepared in accordance with GAAP.
"CARVE-OUT" shall have the meaning set forth in Section 2.23.
"CASES" shall mean the Chapter 11 Cases of each of the
Borrowers pending in the Bankruptcy Court.
"CHANGE OF CONTROL" shall mean: (i) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof), of shares representing more than 35% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of Parent; or (ii)
the occupation of a majority of the seats (other than vacant seats) on the board
of directors of Parent, after the Filing Date, by Persons who were neither (A)
nominated by the board of directors of Parent nor (B) appointed by the directors
so nominated.
"CHASE" shall have the meaning set forth in the Introduction.
"CLOSING DATE" shall mean the date on which this Agreement has
been executed and the conditions precedent to the making of the initial Loans
set forth in Section 4.1 have been satisfied or waived, which date shall occur
as promptly as is practicable after the date of this Agreement, but in no event
later than ten (10) days following the entry of the Interim Order. The
Administrative Agent's execution and delivery of this Agreement shall constitute
notice to the Borrowers and the Guarantor of the satisfaction of the conditions
precedent set forth in Section 4.1 and the occurrence of the Closing Date.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended.
108
"COLLATERAL" shall mean the Collateral described in the
Security and Pledge Agreement.
"COMMITMENT" shall mean, with respect to each Lender, the
commitment of each Lender hereunder in the amount set forth opposite its name on
Annex A hereto or as may subsequently be set forth in the Register from time to
time, as the same may be reduced from time to time pursuant to this Agreement.
"COMMITMENT FEE" shall have the meaning set forth in Section
2.20.
"COMMITMENT LETTER" shall mean that certain Commitment Letter
dated June 19, 2001 among the Administrative Agent, X. X. Xxxxxx Securities,
Inc. and the Borrowers.
"COMMITMENT PERCENTAGE" shall mean at any time, with respect
to each Lender, the percentage obtained by dividing its Commitment at such time
by the Total Commitment at such time.
"CONSUMMATION DATE" shall mean the date of the substantial
consummation (as defined in Section 1101 of the Bankruptcy Code and which for
purposes of this Agreement shall be no later than the effective date) of a
Reorganization Plan of the Borrowers that is confirmed pursuant to an order of
the Bankruptcy Court in the Cases.
"CRITICAL VENDORS" shall mean those vendors and service
providers that provide materials, goods or services that are either actually or
practically available only from such vendor or service provider, as described in
more detail in the Motion of Debtors and Debtors in Possession for an Order
Authorizing Them to Pay Prepetition Claims of Certain Critical Vendors and
Service Providers, to be filed with the Bankruptcy Court soon after the Filing
Date.
"DOLLARS" and "$" shall mean lawful money of the United States
of America.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary incorporated,
organized or formed under the laws of any jurisdiction of the United States.
"EBITDA" shall mean, for any period, all as determined in
accordance with GAAP on a consolidated basis, the consolidated net income (or
net loss) of the Borrowers and their Subsidiaries for such period, plus (a) the
sum of (i) depreciation expense, (ii) amortization expense, (iii) net total
Federal, state, local and foreign income tax expense, (iv) gross interest
expense for such period less gross interest income for such period, (v)
extraordinary losses, (vi) any non-recurring or restructuring charges, (vii) the
cumulative effect of any change in accounting principles, (viii) "Chapter 11
expenses" (or "administrative costs reflecting Chapter 11 expenses"), including
employee retention costs as reflected on the Borrowers' and their Subsidiaries'
consolidated statement of income for such period and (ix) prepetition charges
incurred in connection with the quantification of claims with respect to
asbestos personal injury cases less (b) extraordinary gains plus or minus (c)
for any postpetition period, the amount of cash received or expended in such
period in respect of any amount which, under clause (vi) above, was taken into
account in determining EBITDA for such or any prior period, but as to net cash
expended, only to the extent such cash amount exceeds $5,000,000 per annum.
109
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank having
total assets in excess of $1,000,000,000; (ii) a finance company, insurance
company or other financial institution or fund, in each case acceptable to the
Administrative Agent, which in the ordinary course of business extends credit of
the type contemplated herein and has total assets in excess of $200,000,000 and
whose becoming an assignee would not constitute a prohibited transaction under
Section 4975 of ERISA; and (iii) any other financial institution satisfactory to
the Borrowers and the Administrative Agent.
"ENVIRONMENTAL LIEN" shall mean a Lien in favor of any
Governmental Authority for (i) any liability under federal or state
environmental laws or regulations, or (ii) damages arising from or costs
incurred by such Governmental Authority in response to a release or threatened
release of a hazardous or toxic waste, substance or constituent, or other
substance into the environment.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" shall mean any trade or business (whether or
not incorporated) which is a member of a group of which any of the Borrowers is
a member and which is under common control within the meaning of Section 414(b)
or (c) of the Code and the regulations promulgated and rulings issued
thereunder.
"EUROCURRENCY LIABILITIES" shall have the meaning assigned
thereto in Regulation D issued by the Board, as in effect from time to time.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of
Eurodollar Loans.
"EURODOLLAR LOAN" shall mean any Loan bearing interest at a
rate determined by reference to the Adjusted LIBOR Rate in accordance with the
provisions of Section 2.
"EVENT OF DEFAULT" shall have the meaning given such term in
Section 7.
"FCC" means the Federal Communications Commission or any
successor commission or agency of the United States of America having
jurisdiction over any Borrower.
"FEES" shall collectively mean the Commitment Fees, Letter of
Credit Fees and other fees referred to in Sections 2.19, 2.20 and 2.21.
"FILING DATE" shall mean June 25, 2001.
"FINAL ORDER" shall have the meaning given such term in
Section 4.2(d).
"FINANCIAL OFFICER" shall mean the Chief Financial Officer,
Vice President Finance, Vice President/Operations Controller, Corporate
Controller, Treasurer or Assistant Treasurer of a Borrower.
"FOREIGN SUBSIDIARY" shall have the meaning given such term in
Section 10.17.
110
"FRONTING BANK" shall mean Chase or such other commercial bank
(which other commercial bank shall be reasonably satisfactory to the Borrowers)
as may agree with Chase to act in such capacity.
"GAAP" shall mean generally accepted accounting principles
applied in accordance with Section 1.2.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality or any court, in each case whether of the United States or
foreign.
"GUARANTOR" shall have the meaning set forth in the
Introduction.
"INDEBTEDNESS" shall mean, at any time and with respect to any
Person, (i) all indebtedness of such Person for borrowed money, (ii) all
indebtedness of such Person for the deferred purchase price of property or
services (other than property, including inventory, and services purchased, and
expense accruals and deferred compensation items arising, in the ordinary course
of business), (iii) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments (other than performance, surety and
appeal bonds arising in the ordinary course of business), (iv) all indebtedness
of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (v)
all obligations of such Person under leases which have been or should be, in
accordance with GAAP, recorded as capital leases, to the extent required to be
so recorded, (vi) all reimbursement, payment or similar obligations of such
Person, contingent or otherwise, under acceptance, letter of credit or similar
facilities and all obligations of such Person in respect of (x) currency swap
agreements, currency future or option contracts and other similar agreements
designed to hedge against fluctuations in foreign interest rates and (y)
interest rate swap, cap or collar agreements and interest rate future or option
contracts; (vii) all Indebtedness referred to in clauses (i) through (vi) above
guaranteed directly or indirectly by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (A) to pay or
purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (B) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to assure the holder
of such Indebtedness against loss in respect of such Indebtedness, (C) to supply
funds to or in any other manner invest in the debtor (including any agreement to
pay for property or services irrespective of whether such property is received
or such services are rendered) or (D) otherwise to assure a creditor against
loss in respect of such Indebtedness, and (viii) all Indebtedness referred to in
clauses (i) through (vii) 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, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness.
"INDEMNIFIED PARTY" shall have the meaning given such term in
Section 10.6.
"INITIAL PERIOD" shall have the meaning given such term in
Section 2.2.
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"INSUFFICIENCY" shall mean, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities within the meaning of
Section 4001(a)(18) of ERISA.
"INTERCOMPANY INDEBTEDNESS" shall mean any claim of an
Affiliate of Parent against any other Affiliate of Parent, any claim of Parent
against any of its Affiliates, and any claim of any Affiliate of Parent against
Parent.
"INTERIM ORDER" shall have the meaning given such term in
Section 4.1(b).
"INTEREST PAYMENT DATE" shall mean (i) as to any Eurodollar
Loan, the last day of the applicable Interest Period, provided that with respect
to Interest Periods exceeding three months, interest shall be payable on the
three-month anniversary of the first day of the Interest Period and on the last
day of the Interest Period, and (ii) as to all ABR Loans, the last calendar day
of each month and the date on which any ABR Loans are refinanced with Eurodollar
Loans pursuant to Section 2.12.
"INTEREST PERIOD" shall mean, as to any Borrowing of
Eurodollar Loans, the period commencing on the date of such Borrowing (including
as a result of a refinancing of ABR Loans) or on the last day of the preceding
Interest Period applicable to such Borrowing and ending on the numerically
corresponding day (or if there is no corresponding day, the last day) in the
calendar month that is one, two, three or six months thereafter, as the
Borrowers may elect in the related notice delivered pursuant to Sections 2.6(b)
or 2.12; provided, however, that (i) if any Interest Period would end on a day
which shall not be a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (ii) no Interest Period shall end later than
the Termination Date.
"INVESTMENTS" shall have the meaning given such term in
Section 6.10.
"LENDERS" shall have the meaning set forth in the
Introduction.
"LETTER OF CREDIT" shall mean any irrevocable letter of credit
issued pursuant to Section 2.3, which letter of credit shall be (i) a standby or
import documentary letter of credit, (ii) issued for purposes that are
consistent with the ordinary course of business of the Borrowers or for such
other purposes as are reasonably acceptable to the Administrative Agent, (iii)
denominated in Dollars and (iv) otherwise in such form as may be reasonably
approved from time to time by the Administrative Agent and the applicable
Fronting Bank.
"LETTER OF CREDIT ACCOUNT" shall mean the account established
by the Borrowers under the sole and exclusive control of the Administrative
Agent maintained at the office of the Administrative Agent at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 designated as the "
USG Corporation Letter of Credit
Account" that shall be used solely for the purposes set forth in Sections 2.3(b)
and 2.13.
"LETTER OF CREDIT FEES" shall mean the fees payable in respect
of Letters of Credit pursuant to Section 2.21.
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"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the
sum of (i) the aggregate undrawn stated amount of all Letters of Credit then
outstanding plus (ii) all amounts theretofore drawn under Letters of Credit and
not then reimbursed.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including any conditional
sale or other title retention agreement or any lease in the nature thereof).
"LOAN" and "LOANS" shall have the respective meanings given
such terms in Section 2.1.
"LOAN DOCUMENTS" shall mean this Agreement, the Letters of
Credit, the Security and Pledge Agreement and any other instrument or agreement
executed and delivered in connection herewith.
"MATURITY DATE" shall initially mean the date 36 months after
the commencement of the Cases.
"MINORITY LENDERS" shall have the meaning given such term in
Section 10.10(b).
"MULTIEMPLOYER PLAN" shall mean a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which any Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"MULTIPLE EMPLOYER PLAN" shall mean a Single Employer Plan,
which (i) is maintained for employees of a Borrower or an ERISA Affiliate and at
least one Person other than such Borrower and its ERISA Affiliates or (ii) was
so maintained and in respect of which a Borrower or an ERISA Affiliate could
have liability under Section 4064 or 4069 of ERISA in the event such Plan has
been or were to be terminated.
"NET PROCEEDS" shall mean, in respect of any sale of assets,
the proceeds of such sale after the payment of or reservation for expenses that
are directly related to (or the need for which arises as a result of) the
transaction of sale, including, but not limited to, related severance costs,
taxes payable, brokerage commissions, professional expenses, other similar costs
that are directly related to the sale and the amount secured by valid and
perfected Liens, if any, that are senior to the Liens on such assets held by the
Administrative Agent on behalf of the Lenders.
"OBLIGATIONS" shall mean (a) the due and punctual payment of
principal of and interest on the Loans and the reimbursement of all amounts
drawn under Letters of Credit, and (b) the due and punctual payment of the Fees
and all other present and future, fixed or contingent, monetary obligations of
the Borrowers to the Lenders and the Administrative Agent under the Loan
Documents.
"ORDERS" shall mean the Interim Order and the Final Order of
the Bankruptcy Court referred to in Sections 4.1(b) and 4.2(d).
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"ORGANIZATIONAL DOCUMENTS" shall mean (i) with respect to any
corporation, its certificate or articles of incorporation, as amended, and its
by-laws, as amended, (ii) with respect to any limited partnership, its
certificate of limited partnership or formation, as amended, and its partnership
agreement, as amended, (iii) with respect to any general partnership, its
partnership agreement, as amended, (iv) with respect to any limited liability
company, its certificate of formation or articles of organization, as amended,
and its operating agreement, as amended, and (v) with respect to any unlimited
liability company, its certificate of formation, as amended, and its memorandum
and articles of association, as amended. In the event any term or condition of
this Agreement or any other Loan Document requires any Organizational Document
to be certified by a secretary of state of similar governmental official, the
reference to any such "Organizational Document" shall only be to a document of a
type customarily certified by such governmental official.
"OTHER TAXES" shall have the meaning given such term in
Section 2.18.
"PARENT" shall mean have the meaning set forth in the
Introduction.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor agency or entity performing substantially the same functions.
"PENSION PLAN" shall mean a defined benefit pension or
retirement plan which meets and is subject to the requirements of Section 401(a)
of the Code.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within twelve months from the date of acquisition thereof;
(b) without limiting the provisions of paragraph (d) below,
investments in commercial paper maturing within six months from the date of
acquisition thereof and having, at such date of acquisition, a rating of at
least "A-2" or the equivalent thereof from Standard & Poor's Ratings Group or of
at least "P-2" or the equivalent thereof from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits (including Eurodollar time deposits) maturing
within six months from the date of acquisition thereof issued or guaranteed by
or placed with (i) any domestic office of the Administrative Agent or the bank
with whom the Borrowers maintain their cash management system, provided, that if
such bank is not a Lender hereunder, such bank shall have entered into an
agreement with the Administrative Agent pursuant to which such bank shall have
waived all rights of setoff and confirmed that such bank does not have, nor
shall it claim, a security interest therein or (ii) any domestic office of any
other commercial bank of recognized standing organized under the laws of the
United States of America or any State thereof that has a combined capital and
surplus and undivided profits of not less than $250,000,000 and is the principal
banking Subsidiary of a bank holding company having a long-term unsecured debt
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rating of at least "A-2" or the equivalent thereof from Standard & Poor's
Ratings Group or at least "P-2" or the equivalent thereof from Xxxxx'x Investors
Service, Inc.;
(d) investments in commercial paper maturing within six months
from the date of acquisition thereof and issued by (i) the holding company of
the Administrative Agent or (ii) the holding company of any other commercial
bank of recognized standing organized under the laws of the United States of
America or any State thereof that has (A) a combined capital and surplus in
excess of $250,000,000 and (B) commercial paper rated at least "A-2" or the
equivalent thereof from Standard & Poor's Ratings Group or of at least "P-2" or
the equivalent thereof from Xxxxx'x Investors Service, Inc.;
(e) investments in repurchase obligations with a term of not
more than seven (7) days for underlying securities of the types described in
clause (a) above entered into with any office of a bank or trust company meeting
the qualifications specified in clause (c) above;
(f) investments in money market funds substantially all the
assets of which are comprised of securities of the types described in clauses
(a) through (e) above;
(g) to the extent such stock is owned on the Filing Date,
investments in the capital stock of any direct or indirect Subsidiary of the
Borrowers; and
(h) such other investments as are permitted by the U.S.
Trustee's guidelines and approved by the Administrative Agent.
"PERMITTED LIENS" shall mean (i) Liens imposed by law (other
than Environmental Liens and any Lien imposed under ERISA) for taxes,
assessments or charges of any Governmental Authority for claims not yet due or
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are being
maintained in accordance with GAAP; (ii) Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens (other than
Environmental Liens and any Lien imposed under ERISA) in existence on the Filing
Date or thereafter imposed by law and created in the ordinary course of
business; (iii) Liens (other than any Lien imposed under ERISA) incurred or
deposits made (including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other types of
social security benefits or to secure the performance of tenders, bids, leases,
contracts (other than for the repayment of Indebtedness), statutory obligations
and other similar obligations incurred in the ordinary course of business or
arising as a result of progress payments under government contracts; (iv)
easements (including, without limitation, reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded) and interest of ground lessors, which do
not interfere with the ordinary conduct of the business of any Borrower, and
which do not detract from the value of the property to which they attach or
materially impair the use thereof to any Borrower; (v) purchase money Liens
(including Capitalized Leases) upon or in any property acquired or held in the
ordinary course of business to secure the purchase price of such property or to
secure Indebtedness permitted by Section 6.3(iii) solely for the purpose of
financing the acquisition of such property; (vi) Liens consisting of letters of
credit and/or deposits with or for the benefit of energy suppliers, pipeline
companies
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and utilities made in the ordinary course of business; (vii) Liens set forth on
Schedule 3.6; and (viii) extensions, renewals or replacements, including
replacement Liens granted by the Bankruptcy Court, of any Lien referred to in
paragraphs (i) through (vi) above, provided that the principal amount of the
obligation secured thereby is not increased and that any such extension, renewal
or replacement is limited to the property originally encumbered thereby,
provided, however, that the principal amount of the obligations secured by the
Liens described in clauses (ii), (v), (vi) and (vii) above shall not exceed
$10,000,000, and all amounts in excess of $10,000,000 shall not constitute
Permitted Liens.
"PERSON" shall mean any natural person, corporation, division
of a corporation, partnership, trust, joint venture, association, company,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"PLAN" shall mean a Single Employer Plan or a Multiemployer
Plan.
"PREPAYMENT DATE" shall mean forty five (45) days after the
entry of the Interim Order by the Bankruptcy Court if the Final Order has not
been entered by the Bankruptcy Court prior to the expiration of such forty five
(45) day period.
"PRE-PETITION PAYMENT" shall mean a payment (by way of
adequate protection or otherwise) of principal or interest or otherwise on
account of any pre-petition Indebtedness or trade payables or other pre-petition
claims against the Borrowers, including, without limitation, reclamation claims,
materialmen's liens and pre-petition claims of Critical Vendors.
"REGISTER" shall have the meaning set forth in Section
10.3(d).
"REORGANIZATION PLAN" shall mean a plan of reorganization in
any of the Cases.
"REPLACEMENT LENDER" shall have the meaning given such term in
Section 2.28.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding
Loans representing in excess of 50% of the aggregate principal amount of such
Loans outstanding or, if no such Loans are outstanding, Lenders having
Commitments representing in excess of 50% of the Total Commitment.
"SECURITY AND PLEDGE AGREEMENT" shall have the meaning given
such term in Section 4.1(c).
"SINGLE EMPLOYER PLAN" shall mean a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of
a Borrower or an ERISA Affiliate or (ii) was so maintained and in respect of
which a Borrower could have liability under Section 4069 of ERISA in the event
such Plan has been or were to be terminated.
"STATUTORY RESERVES" shall mean on any date the percentage
(expressed as a decimal) established by the Board and any other banking
authority which is (i) for purposes of the definition of Base CD Rate, the then
stated maximum rate of all reserves (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City, for new three month negotiable
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nonpersonal time deposits in dollars of $100,000 or more or (ii) for purposes of
the definition of Adjusted LIBOR Rate, the then stated maximum rate for all
reserves (including but not limited to any emergency, supplemental or other
marginal reserve requirements) applicable to any member bank of the Federal
Reserve System in respect of Eurocurrency Liabilities (or any successor category
of liabilities under Regulation D issued by the Board, as in effect from time to
time). Such reserve percentages shall include, without limitation, those imposed
pursuant to said Regulation. The Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in such percentage.
"SUBSIDIARY" shall mean, with respect to any Person (herein
referred to as the "parent"), any corporation, association or other business
entity (whether now existing or hereafter organized) of which at least a
majority of the securities or other ownership interests having ordinary voting
power for the election of directors is, at the time as of which any
determination is being made, owned or controlled by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"SUPER-MAJORITY LENDERS" shall have the meaning given such
term in Section 10.10(b).
"SUPERPRIORITY CLAIM" shall mean a claim against any Borrower
in any of the Cases which is a superpriority administrative expense claim having
priority over any or all administrative expenses of the kind specified in
Sections 503(b) or 507(b) of the Bankruptcy Code.
"TAXES" shall have the meaning given such term in Section
2.18.
"TERMINATION DATE" shall mean the earliest to occur of (i) the
Prepayment Date, (ii) the Maturity Date, (iii) the Consummation Date and (iv)
the acceleration of the Loans and the termination of the Total Commitment in
accordance with the terms hereof.
"TERMINATION EVENT" shall mean (i) a "reportable event", as
such term is described in Section 4043 of ERISA and the regulations issued
thereunder (other than a "reportable event" not subject to the provision for
30-day notice to the PBGC under Section 4043 of ERISA or such regulations) or an
event described in Section 4068 of ERISA excluding events described in Section
4043(c)(9) of ERISA or 29 CFR Sections 2615.21 or 2615.23, or (ii) the
withdrawal of any Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a "substantial employer", as such term is
defined in Section 4001(c) of ERISA, or the incurrence of liability by any
Borrower or any ERISA Affiliate under Section 4064 of ERISA upon the termination
of a Multiple Employer Plan, or (iii) providing notice of intent to terminate a
Plan pursuant to Section 4041(c) of ERISA or the treatment of a Plan amendment
as a termination under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, or (v)
any other event or condition (other than the commencement of the Cases and the
failure to have made any contribution accrued as of the Filing Date but not
paid) which would reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the imposition of any liability under Title IV of ERISA
(other than for the payment of premiums to the PBGC).
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"TOTAL COMMITMENT" shall mean, at any time, the sum of the
Commitments at such time.
"TOTAL USAGE" shall mean, at any time, the sum of the
outstanding aggregate principal amount of the Loans plus the aggregate Letter of
Credit Outstandings.
"TRANSFEREE" shall have the meaning given such term in Section
2.18.
"TYPE" when used in respect of any Loan or Borrowing shall
refer to the Rate of interest by reference to which interest on such Loan or on
the Loans comprising such Borrowing is determined. For purposes hereof, "RATE"
shall mean the Adjusted LIBOR Rate and the Alternate Base Rate.
"UNUSED TOTAL COMMITMENT" shall mean, at any time, (i) the
Total Commitment less (ii) the sum of (x) the aggregate outstanding principal
amount of all Loans and (y) the aggregate Letter of Credit Outstandings.
"WITHDRAWAL LIABILITY" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 Terms Generally. The definitions in Section 1.1 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. All references herein to Sections, Exhibits and
Schedules shall be deemed references to Sections of, and Exhibits and Schedules
to, this Agreement unless the context shall otherwise require. Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided, however, that for purposes of determining compliance with any
covenant set forth in Section 6, such terms shall be construed in accordance
with GAAP as in effect on the date of this Agreement applied on a basis
consistent with the application used in the Borrowers' audited financial
statements referred to in Section 3.4.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
SECTION 2.1 Commitment of the Lenders.
(a) Each Lender severally and not jointly with the other
Lenders agrees, upon the terms and subject to the conditions herein set forth
(including, without limitation, the provisions of Section 2.28), to make
revolving credit loans (each a "LOAN" and collectively, the "LOANS") in U.S.
Dollars to the Borrowers at any time and from time to time during the period
commencing on the date hereof and ending on the Termination Date (or the earlier
date of termination of the Total Commitment) in an aggregate principal amount
not to exceed, when added to such Lender's Commitment Percentage of the then
aggregate Letter of Credit Outstandings (in excess of the amount of cash then
held in the Letter of Credit Account pursuant to Section 2.3(b)), the Commitment
of such Lender, which Loans may be repaid and reborrowed in accordance with the
provisions of this Agreement. At no time shall the Total Usage exceed (i) prior
to the expiration of the Initial Period, the Available Commitment, and (ii) from
and after
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the expiration of the Initial Period, the lesser of (x) the Total Commitment and
(y) the Borrowing Base.
(b) Each Borrowing shall be made by the Lenders pro rata in
accordance with their respective Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve the other
Lenders of their obligations to lend.
SECTION 2.2 Availability of Commitment; Borrowing Base.
(a) Subject to the terms and conditions hereof, from the
Filing Date until the later of: (i) the date which is 30 days after the Filing
Date, and (ii) the date of the entry of the Final Order (the "INITIAL PERIOD"),
$150,000,000 of the Total Commitment (the "AVAILABLE COMMITMENT") shall be
available to the Borrowers, for (i) working capital, (ii) other general
corporate purposes of the Borrowers, and (iii) payment of any related
transaction costs, fees and expenses.
(b) After the Initial Period, the Borrowing Base shall become
operative with respect to the availability of Loans or Letters of Credit under
the Total Commitment, provided, however, that if at the end of any final quarter
of the Borrowers EBITDA for the immediately preceding four fiscal quarters is
less than $50,000,000, availability under the Total Commitment shall thereafter
be limited to $200,000,000 until such time as EBITDA for the immediately
preceding four fiscal quarters, as tested at the end of a subsequent fiscal
quarter, is greater than or equal to $50,000,000.
(c) Notwithstanding any other provision of this Agreement to
the contrary, the Total Usage shall not at any time exceed (i) prior to the
expiration of the Initial Period, the Available Commitment, and (ii) from and
after the expiration of the Initial Period, the lesser of (x) the Total
Commitment and (y) the Borrowing Base, and no Loan shall be made or Letter of
Credit issued in violation of the foregoing.
SECTION 2.3 Letters of Credit.
(a) Upon the terms and subject to the conditions herein set
forth, the Borrowers may request a Fronting Bank, at any time and from time to
time after the date hereof and prior to the Termination Date, to issue, and,
subject to the terms and conditions contained herein, such Fronting Bank shall
issue, for the account of the Borrowers one or more Letters of Credit in support
of obligations of the Borrowers that are acceptable to the Administrative Agent,
provided that no Letter of Credit shall be issued if after giving effect to such
issuance (i) the aggregate Letter of Credit Outstandings would exceed
$100,000,000, and (ii) the Total Usage would exceed (x) prior to the expiration
of the Initial Period, the Available Commitment, and (y) from and after the
expiration of the Initial Period, the lesser of (aa) the Total Commitment and
(bb) the Borrowing Base, and, provided further that no Letter of Credit shall be
issued if the Fronting Bank shall have received notice from the Administrative
Agent or the Required Lenders that the conditions to such issuance have not been
met.
(b) No Letter of Credit shall expire later than the earlier of
(i) one year from the issuance thereof, and (ii) five (5) days before the
Maturity Date, provided that if the Termination Date shall occur prior to the
expiration of any Letter of Credit, the Borrowers shall,
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at or prior to the Termination Date, except as the Administrative Agent may
otherwise agree in writing, (i) cause all Letters of Credit which expire after
the Termination Date to be returned to the Fronting Bank undrawn and marked
"canceled" or (ii) if the Borrowers are unable to do so in whole or in part,
either (x) provide a "back-to-back" letter of credit to one or more Fronting
Banks in a form satisfactory to such Fronting Bank and the Administrative Agent
(in their sole discretion), issued by a bank satisfactory to such Fronting Bank
and the Administrative Agent (in their sole discretion), in an amount equal to
the greater of (A) an amount, as determined by the Fronting Bank and the
Administrative Agent, equal to the face amount of all outstanding Letters of
Credit plus the sum of all projected contractual obligations to the
Administrative Agent, the Fronting Bank and the Lenders of the Borrowers
thereunder through the expiration date(s) of such Letters of Credit, and (B)
105% of the then undrawn stated amount of all outstanding Letters of Credit
issued by such Fronting Banks and/or (y) deposit cash in the Letter of Credit
Account in an amount which, together with any amounts then held in the Letter of
Credit Account, is equal to the greater of (A) an amount, as determined by the
Fronting Bank and the Administrative Agent, equal to the face amount of all
outstanding Letters of Credit plus the sum of all projected contractual
obligations to the Administrative Agent, the Fronting Bank and the Lenders of
the Borrowers thereunder and (B) 105% of the then undrawn stated amount of all
Letter of Credit Outstandings as collateral security for the Borrowers'
reimbursement obligations in connection therewith, such cash to be remitted to
the Borrowers upon the expiration, cancellation or other termination or
satisfaction of such reimbursement obligations.
(c) The Borrowers shall pay to each Fronting Bank, in addition
to such other fees and charges as are specifically provided for in Section 2.21
hereof, such fees and charges in connection with the issuance and processing of
the Letters of Credit issued by such Fronting Bank as are customarily imposed by
such Fronting Bank from time to time in connection with letter of credit
transactions.
(d) Drafts drawn under each Letter of Credit shall be
reimbursed by the Borrowers in Dollars not later than the first Business Day
following the date of draw and shall bear interest from the date of draw until
the first Business Day following the date of draw at a rate per annum equal to
the Alternate Base Rate plus the Applicable Margin and thereafter until
reimbursed in full at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin plus 2% (computed on the basis of the actual number of days
elapsed over a year of 360 days). The Borrowers shall effect such reimbursement
(x) if such draw occurs prior to the Termination Date (or the earlier date of
termination of the Total Commitment), in cash or through a Borrowing without the
satisfaction of the conditions precedent set forth in Section 4.2 or (y) if such
draw occurs on or after the Termination Date (or the earlier date of termination
of the Total Commitment), in cash. Each Lender agrees to make the Loans
described in clause (x) of the preceding sentence notwithstanding a failure to
satisfy the applicable lending conditions thereto or the provisions of Sections
2.2 or 2.28.
(e) Immediately upon the issuance of any Letter of Credit by
any Fronting Bank, such Fronting Bank shall be deemed to have sold to each
Lender other than such Fronting Bank and each such other Lender shall be deemed
unconditionally and irrevocably to have purchased from such Fronting Bank,
without recourse or warranty, an undivided interest and participation, to the
extent of such Lender's Commitment Percentage, in such Letter of Credit, each
drawing thereunder and the obligations of the Borrowers under this Agreement
with respect
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thereto. Upon any change in the Commitments pursuant to Section 10.3, it is
hereby agreed that with respect to all Letter of Credit Outstandings, there
shall be an automatic adjustment to the participations hereby created to reflect
the new Commitment Percentages of the assigning and assignee Lenders. Any action
taken or omitted by a Fronting Bank under or in connection with a Letter of
Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Fronting Bank any resulting liability to
any other Lender.
(f) In the event that a Fronting Bank makes any payment under
any Letter of Credit and the Borrowers shall not have reimbursed such amount in
full to such Fronting Bank pursuant to this Section, the Fronting Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Lender of such failure, and each Lender shall promptly and unconditionally pay
to the Administrative Agent for the account of the Fronting Bank the amount of
such Lender's Commitment Percentage of such unreimbursed payment in Dollars and
in same day funds. If the Fronting Bank so notifies the Administrative Agent,
and the Administrative Agent so notifies the Lenders prior to 11:00 a.m. (New
York City time) on any Business Day, such Lenders shall make available to the
Fronting Bank such Lender's Commitment Percentage of the amount of such payment
on such Business Day in same day funds. If and to the extent such Lender shall
not have so made its Commitment Percentage of the amount of such payment
available to the Fronting Bank, such Lender agrees to pay to such Fronting Bank,
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to the Administrative Agent
for the account of such Fronting Bank at the Federal Funds Effective Rate. The
failure of any Lender to make available to the Fronting Bank its Commitment
Percentage of any payment under any Letter of Credit shall not relieve any other
Lender of its obligation hereunder to make available to the Fronting Bank its
Commitment Percentage of any payment under any Letter of Credit on the date
required, as specified above, but no Lender shall be responsible for the failure
of any other Lender to make available to such Fronting Bank such other Lender's
Commitment Percentage of any such payment. Whenever a Fronting Bank receives a
payment of a reimbursement obligation as to which it has received any payments
from the Lenders pursuant to this paragraph, such Fronting Bank shall pay to
each Lender which has paid its Commitment Percentage thereof, in Dollars and in
same day funds, an amount equal to such Lender's Commitment Percentage thereof.
SECTION 2.4 Issuance. Whenever the Borrowers desire a Fronting Bank to
issue a Letter of Credit, they shall give to such Fronting Bank and the
Administrative Agent at least two (2) Business Days' prior written (including
telegraphic, telex, facsimile or cable communication) notice (or such shorter
period as may be agreed upon by the Administrative Agent, the Borrowers and the
Fronting Bank) specifying the date on which the proposed Letter of Credit is to
be issued (which shall be a Business Day), the stated amount of the Letter of
Credit so requested, the expiration date of such Letter of Credit and the name
and address of the beneficiary thereof.
SECTION 2.5 Nature of Letter of Credit Obligations Absolute. The
obligations of the Borrowers to reimburse the Lenders for drawings made under
any Letter of Credit shall be joint and several, unconditional and irrevocable
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including, without limitation: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, setoff,
defense or other right which any Borrower may have at any time against a
beneficiary of any Letter of Credit or
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against any of the Lenders, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction; (iii) 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; (iv) payment by a
Fronting Bank of any Letter of Credit against presentation of a demand, draft or
certificate or other document which does not comply with the terms of such
Letter of Credit; (v) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or (vi) the fact that any Event of Default
shall have occurred and be continuing.
SECTION 2.6 Making of Loans.
(a) Except as contemplated by Section 2.11, Loans shall be
either ABR Loans or Eurodollar Loans as the Borrowers may request subject to and
in accordance with this Section, provided that all Loans made pursuant to the
same Borrowing shall, unless otherwise specifically provided herein, be Loans of
the same Type. Each Lender may fulfill its Commitment with respect to any
Eurodollar Loan or ABR Loan by causing any lending office of such Lender to make
such Loan; provided that any such use of a lending office shall not affect the
obligation of the Borrowers to repay such Loan in accordance with the terms of
this Agreement. Each Lender shall, subject to its overall policy considerations,
use reasonable efforts (but shall not be obligated) to select a lending office
which will not result in the payment of increased costs by the Borrowers
pursuant to Sections 2.15 or 2.18. Subject to the other provisions of this
Section and the provisions of Section 2.12, Borrowings of Loans of more than one
Type may be incurred at the same time, provided that no more than ten (10)
Borrowings of Eurodollar Loans may be outstanding at any time.
(b) The Borrowers shall give the Administrative Agent prior
written, telex, facsimile or telephonic (confirmed promptly in writing) notice
of each Borrowing hereunder of at least three (3) Business Days for Eurodollar
Loans and one (1) Business Day for ABR Loans; such notice shall be irrevocable
and shall specify the amount of the proposed Borrowing (which shall not be less
than $5,000,000 or any integral multiple of $5,000,000 in excess thereof) and
the date thereof (which shall be a Business Day) and shall contain disbursement
instructions. Such notice, to be effective, must be received by the
Administrative Agent not later than 12:00 noon, New York City time, on the third
Business Day in the case of Eurodollar Loans and the first Business Day in the
case of ABR Loans, preceding the date on which such Borrowing is to be made.
Such notice shall specify whether the Borrowing then being requested is to be a
Borrowing of ABR Loans or Eurodollar Loans. If no election is made as to the
Type of Loan, such notice shall be deemed a request for Borrowing of ABR Loans.
The Administrative Agent shall promptly notify each Lender of its proportionate
share of such Borrowing, the date of such Borrowing, the Type of Borrowing or
Loans being requested and the Interest Period or Interest Periods applicable
thereto, as appropriate. Notwithstanding the foregoing, the Borrowers may give
telephonic notice (confirmed promptly in writing) for ABR Loans in a principal
amount not to exceed $40,000,000 on the Business Day of the proposed Borrowing.
Such telephonic notice, to be effective, must be received by the Administrative
Agent not later than 11:00 a.m. on such Business Day. On the borrowing date
specified in such notice, each Lender shall make its share of the Borrowing
available at the office of the Administrative Agent at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, no later than 12:00 noon, New York City time, in
immediately available funds. Upon receipt of the funds made available by the
Lenders to fund any borrowing
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hereunder, the Administrative Agent shall disburse such funds in the manner
specified in the notice of borrowing delivered by the Borrowers.
SECTION 2.7 Repayment of Loans; Evidence of Debt.
(a) The Borrowers hereby jointly and severally unconditionally
promise to pay to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Loan on the Termination Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrowers to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrowers
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrowers shall execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) in a form
furnished by the Administrative Agent and reasonably acceptable to the
Borrowers. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 10.3)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.8 Interest on Loans.
(a) Subject to the provisions of Section 2.9, each ABR Loan
shall bear interest (computed, for ABR Loans wherein the Alternate Base Rate is
determined by reference to the Base CD Rate or the Federal Funds Effective Rate,
on the basis of the actual number of days elapsed over a year of 360 days, and
otherwise computed on the basis of the actual number of days elapsed over a year
of 365(6) days) at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin, as adjusted from time to time.
(b) Subject to the provisions of Section 2.9, each Eurodollar
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a
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rate per annum equal, during each Interest Period applicable thereto, to the
Adjusted LIBOR Rate for such Interest Period in effect for such Borrowing plus
the Applicable Margin, as adjusted from time to time.
(c) Accrued interest on all Loans shall be payable in arrears
on each Interest Payment Date applicable thereto, at maturity (whether by
acceleration or otherwise), after such maturity on demand and (with respect to
Eurodollar Loans) upon any repayment or prepayment thereof (on the amount
prepaid).
SECTION 2.9 Default Interest. If any Borrower shall default in the
payment of the principal of or interest on any Loan or in the payment of any
other amount becoming due hereunder (including, without limitation, the
reimbursement pursuant to Section 2.3(d) of any draft drawn under a Letter of
Credit), whether at stated maturity, by acceleration or otherwise, such Borrower
shall on demand from time to time pay interest, to the extent permitted by law,
on such defaulted amount up to (but not including) the date of actual payment
(after as well as before judgment) at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 or 365/6 days, as the case
may be) equal to 2% above the then applicable rate.
SECTION 2.10 Optional Termination or Reduction of Commitment. Upon at
least two (2) Business Days' prior written notice to the Administrative Agent,
the Borrowers may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Unused Total Commitment. Each such
reduction or termination, as applicable, of the Unused Total Commitment shall be
in the principal amount of $5,000,000 or any integral multiple of $5,000,000 in
excess thereof. Any reduction or termination, as applicable, of the Unused Total
Commitment pursuant to this Section shall be deemed to be a reduction or
termination, as applicable, in the amount of such reduction or termination of
the Total Commitment and shall be applied pro rata to reduce the Commitment of
each Lender. Simultaneously with each reduction or termination, as applicable,
of the Unused Total Commitment, the Borrowers shall pay to the Administrative
Agent for the account of each Lender the Commitment Fee accrued on the amount of
the Commitment of such Lender so terminated or reduced through the date thereof.
SECTION 2.11 Alternate Rate of Interest. In the event, and on each
occasion, that on the day two (2) Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan, the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrowers absent manifest error) that reasonable means do not exist for
ascertaining the applicable Adjusted LIBOR Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telegraphic notice of such
determination to the Borrowers and the Lenders, and any request by the Borrowers
for a Borrowing of Eurodollar Loans (including pursuant to a refinancing with
Eurodollar Loans) pursuant to Section 2.6 or 2.12 shall be deemed a request for
a Borrowing of ABR Loans. After such notice shall have been given and until the
circumstances giving rise to such notice no longer exist, each request for a
Borrowing of Eurodollar Loans shall be deemed to be a request for a Borrowing of
ABR Loans.
SECTION 2.12 Refinancing of Loans. The Borrowers shall have the right,
at any time, on three (3) Business Days' prior irrevocable notice to the
Administrative Agent (which notice, to be effective, must be received by the
Administrative Agent not later than 1:00 p.m., New York
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City time, on the third Business Day preceding the date of any refinancing), (x)
to refinance (without the satisfaction of the conditions set forth in Section 4
as a condition to such refinancing) any outstanding Borrowing or Borrowings of
Loans of one Type (or a portion thereof) with a Borrowing of Loans of the other
Type or (y) to continue an outstanding Borrowing of Eurodollar Loans for an
additional Interest Period, subject to the following:
(a) as a condition to the refinancing of ABR Loans with
Eurodollar Loans and to the continuation of Eurodollar Loans for an additional
Interest Period, no Event of Default shall have occurred and be continuing at
the time of such refinancing;
(b) if less than a full Borrowing of Loans shall be
refinanced, such refinancing shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising such
Borrowing held by the Lenders immediately prior to such refinancing;
(c) the aggregate principal amount of Loans being refinanced
shall be at least $5,000,000 or any integral multiple of $1,000,000 in excess
thereof, provided that no partial refinancing of a Borrowing of Eurodollar Loans
shall result in the Eurodollar Loans remaining outstanding pursuant to such
Borrowing being less than $5,000,000 in aggregate principal amount;
(d) each Lender shall effect each refinancing by applying the
proceeds of its new Eurodollar Loan or ABR Loan, as the case may be, to its Loan
being refinanced;
(e) the Interest Period with respect to a Borrowing of
Eurodollar Loans effected by a refinancing or in respect to the Borrowing of
Eurodollar Loans being continued as Eurodollar Loans shall commence on the date
of refinancing or the expiration of the current Interest Period applicable to
such continuing Borrowing, as the case may be;
(f) a Borrowing of Eurodollar Loans may be refinanced only on
the last day of an Interest Period applicable thereto; and
(g) each request for a refinancing with a Borrowing of
Eurodollar Loans which fails to state an applicable Interest Period shall be
deemed to be a request for an Interest Period of one month.
In the event that the Borrowers shall not give notice to refinance any Borrowing
of Eurodollar Loans, or to continue such Borrowing as Eurodollar Loans, or shall
not be entitled to refinance or continue such Borrowing as Eurodollar Loans, in
each case as provided above, such Borrowing shall automatically be refinanced
with a Borrowing of ABR Loans at the expiration of the then-current Interest
Period. The Administrative Agent shall, after it receives notice from the
Borrowers, promptly give each Lender notice of any refinancing, in whole or
part, of any Loan made by such Lender.
SECTION 2.13 Mandatory Prepayment; Commitment Termination
(a) If at any time the aggregate principal amount of the
outstanding Loans plus the aggregate Letter of Credit Outstandings exceeds (A)
prior to the expiration of the Initial
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Period, the Available Commitment, and (B) from and after the expiration of the
Initial Period, the lesser of (x) the Total Commitment or (y) the Borrowing
Base, the Borrowers will within three (3) Business Days (i) prepay the Loans in
an amount necessary to cause the aggregate principal amount of the outstanding
Loans plus the aggregate Letter of Credit Outstandings to be equal to or less
than (A) prior to the expiration of the Initial Period, the Available
Commitment, and (B) from and after the expiration of the Initial Period, the
lesser of (x) the Total Commitment and (y) the Borrowing Base, and (ii) if,
after giving effect to the prepayment in full of the Loans, the aggregate Letter
of Credit Outstandings in excess of the amount of cash held in the Letter of
Credit Account exceeds (A) prior to the expiration of the Initial Period, the
Available Commitment, and (B) from and after the expiration of the Initial
Period, the lesser of (x) the Total Commitment or (y) the Borrowing Base,
deposit into the Letter of Credit Account an amount equal to 105% of the amount
by which the aggregate Letter of Credit Outstandings in excess of the amount of
cash held in the Letter of Credit Account so exceeds (A) prior to the expiration
of the Initial Period, the Available Commitment, and (B) from and after the
expiration of the Initial Period, the lesser of (x) the Total Commitment or (y)
the Borrowing Base.
(b) The Borrowers shall, within two (2) Business Days of the
date of receipt of the Net Proceeds by any Borrower or any of their Subsidiaries
from the sale, lease, transfer or other disposition of any assets of any
Borrower or any of its Subsidiaries other than sales, leases, transfers or other
dispositions of assets permitted by Section 6.11, jointly and severally, apply
such Net Proceeds as follows: first, to prepay the then outstanding Loans;
second, if an Event of Default shall have occurred and be continuing, deposit an
amount in the Letter of Credit Account (up to 105% of the aggregate Letter of
Credit Outstandings); and thereafter, such Net Proceeds may be retained by the
Borrowers and invested in Permitted Investments or used for expenditures in the
ordinary course of business (subject to compliance with the terms and conditions
of this Agreement).
(c) Upon the Termination Date, the Total Commitment shall be
terminated in full and the Borrowers shall pay the Loans in full and, if any
Letter of Credit remains outstanding, comply with Section 2.3(b).
SECTION 2.14 Optional Prepayment of Loans; Reimbursement of Lenders.
(a) The Borrowers shall have the right at any time and from
time to time to prepay any Loans, in whole or in part, (x) with respect to
Eurodollar Loans, upon at least three (3) Business Days' prior written, telex,
facsimile or telephonic (confirmed promptly in writing) notice to the
Administrative Agent and (y) with respect to ABR Loans on the same Business Day
if written, telex, facsimile or telephonic (confirmed promptly in writing)
notice is received by the Administrative Agent prior to 1:00 p.m., New York City
time, and thereafter upon at least one Business Day's prior written, telex,
facsimile or telephonic (confirmed promptly in writing) notice to the
Administrative Agent; provided, however, that (i) each such partial prepayment
shall be in a minimum amount of $5,000,000 or integral multiples of $5,000,000
in excess thereof, (ii) no prepayment of Eurodollar Loans shall be permitted
pursuant to this Section 2.14(a) other than on the last day of an Interest
Period applicable thereto unless such prepayment is accompanied by the payment
of the amounts described in clause (i) of the first sentence of Section 2.14(b),
and (iii) no partial prepayment of a Borrowing of Eurodollar Loans shall result
in the aggregate principal amount of the Eurodollar Loans remaining outstanding
pursuant to
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such Borrowing being less than $5,000,000. Each notice of prepayment shall
specify the prepayment date, the principal amount of the Loans to be prepaid and
in the case of Eurodollar Loans, the Borrowing or Borrowings pursuant to which
made, shall be irrevocable and shall commit the Borrowers to prepay such Loan by
the amount and on the date stated therein. The Administrative Agent shall,
promptly after receiving notice from the Borrowers hereunder, notify each Lender
of the principal amount of the Loans held by such Lender which are to be
prepaid, the prepayment date and the manner of application of the prepayment.
(b) The Borrowers shall reimburse each Lender on demand for
any loss incurred or to be incurred by it in the reemployment of the funds
released (i) resulting from any prepayment (for any reason whatsoever,
including, without limitation, refinancing with ABR Loans) of any Eurodollar
Loan required or permitted under this Agreement, if such Loan is prepaid other
than on the last day of the Interest Period for such Loan (including, without
limitation, any such prepayment in connection with the syndication of the credit
facility evidenced by this Agreement) or (ii) in the event that after the
Borrowers deliver a notice of borrowing under Section 2.6 in respect of
Eurodollar Loans, such Loans are not made on the first day of the Interest
Period specified in such notice of borrowing for any reason other than a breach
by such Lender of its obligations hereunder. Such loss shall be the amount as
reasonably determined by such Lender as the excess, if any, of (A) the amount of
interest which would have accrued to such Lender on the amount so paid or not
borrowed at a rate of interest equal to the Adjusted LIBOR Rate for such Loan,
for the period from the date of such payment or failure to borrow to the last
day (x) in the case of a payment or refinancing with ABR Loans other than on the
last day of the Interest Period for such Loan, of the then current Interest
Period for such Loan, or (y) in the case of such failure to borrow, of the
Interest Period for such Loan which would have commenced on the date of such
failure to borrow, over (B) the amount of interest which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the London interbank market. Each Lender shall
deliver to the Borrowers from time to time one or more certificates setting
forth the amount of such loss as determined by such Lender.
(c) In the event the Borrowers fail to prepay any Loan on the
date specified in any prepayment notice delivered pursuant to Section 2.14(a),
the Borrowers on demand by any Lender shall pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any loss incurred by such Lender as a result of such failure to prepay,
including, without limitation, any loss, cost or expenses incurred by reason of
the acquisition of deposits or other funds by such Lender to fulfill deposit
obligations incurred in anticipation of such prepayment, but without duplication
of any amounts paid under Section 2.14(b). Each Lender shall deliver to the
Borrowers from time to time one or more certificates setting forth the amount of
such loss as determined by such Lender.
(d) Any partial prepayment of the Loans by the Borrowers
pursuant to Sections 2.13 or 2.14 shall be applied as specified by the Borrowers
or, in the absence of such specification, as determined by the Administrative
Agent, provided that in the latter case no Eurodollar Loans shall be prepaid
pursuant to Section 2.13 to the extent that such Loan has an Interest Period
ending after the required date of prepayment unless and until all outstanding
ABR Loans and Eurodollar Loans with Interest Periods ending on such date have
been repaid in full.
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SECTION 2.15 Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Lender of
the principal of or interest on any Eurodollar Loan made by such Lender or any
fees or other amounts payable hereunder (other than changes in respect of Taxes,
Other Taxes and taxes imposed on, or measured by, the net income or overall
gross receipts or franchise taxes of such Lender by the jurisdiction in which
such Lender has its principal office or in which the applicable lending office
for such Eurodollar Loan is located or by any political subdivision or taxing
authority therein, or by any other jurisdiction or by any political subdivision
or taxing authority therein other than a jurisdiction in which such Lender would
not be subject to tax but for the execution and performance of this Agreement),
or shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by such Lender (except any such reserve requirement which is
reflected in the Adjusted LIBOR Rate) or shall impose on such Lender or the
London interbank market any other condition affecting this Agreement or the
Eurodollar Loans made by such Lender, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurodollar Loan or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise) by an amount
deemed by such Lender to be material, then the Borrowers will pay to such Lender
in accordance with paragraph (c) below such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that the adoption or
effectiveness after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement, the Loans
made by such Lender pursuant hereto, such Lender's Commitment hereunder or the
issuance of, or participation in, any Letter of Credit by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such adoption, change or compliance (taking into account
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy) by an amount deemed by such Lender to be material, then
from time to time the Borrowers shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such Lender's holding company for
any such reduction suffered.
(c) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender or its holding company
as specified in paragraph (a) or (b) above, as the case may be, shall be
delivered to the Borrowers and shall be conclusive absent manifest error. The
Borrowers shall pay each Lender the amount shown as due on any such
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certificate delivered to it within thirty (30) days after its receipt of the
same. Any Lender receiving any such payment shall promptly make a refund thereof
to the Borrowers if the law, regulation, guideline or change in circumstances
giving rise to such payment is subsequently deemed or held to be invalid or
inapplicable.
(d) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period within one hundred
eighty (180) days after such Lender obtains knowledge of its entitlement to such
compensation shall not constitute a waiver of such Lender's right to demand
compensation with respect to such period or any other period. The protection of
this Section shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
SECTION 2.16 Change in Legality.
(a) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, if (x) any change after the date of this Agreement
in any law or regulation or in the interpretation thereof by any Governmental
Authority charged with the administration thereof shall make it unlawful for a
Lender to make or maintain a Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to a Eurodollar Loan or (y) at
any time any Lender determines that the making or continuance of any of its
Eurodollar Loans has become impracticable as a result of a contingency occurring
after the date hereof which adversely affects the London interbank market or the
position of such Lender in such market, then, by written notice to the
Borrowers, such Lender may (i) declare that Eurodollar Loans will not thereafter
be made by such Lender hereunder, whereupon any request by the Borrowers for a
Eurodollar Borrowing shall, as to such Lender only, be deemed a request for an
ABR Loan unless such declaration shall be subsequently withdrawn; and (ii)
require that all outstanding Eurodollar Loans made by it be converted to ABR
Loans, in which event all such Eurodollar Loans shall be automatically converted
to ABR Loans as of the effective date of such notice as provided in paragraph
(b) below. In the event any Lender shall exercise its rights under clause (i) or
(ii) of this paragraph (a), all payments and prepayments of principal which
would otherwise have been applied to repay the Eurodollar Loans that would have
been made by such Lender or the converted Eurodollar Loans of such Lender shall
instead be applied to repay the ABR Loans made by such Lender in lieu of, or
resulting from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.16, a notice to the
Borrowers by any Lender pursuant to paragraph (a) above shall be effective, if
lawful, and if any Eurodollar Loans shall then be outstanding, on the last day
of the then-current Interest Period, otherwise, such notice shall be effective
on the date of receipt by the Borrowers.
SECTION 2.17 Pro Rata Treatment, etc. All payments and repayments of
principal and interest in respect of the Loans (except as provided in Sections
2.15 and 2.16) shall be made pro rata among the Lenders in accordance with the
then outstanding principal amount of the Loans and/or participations in Letter
of Credit Outstandings and all outstanding undrawn Letters of Credit (and the
unreimbursed amount of drawn Letters of Credit) hereunder and all payments of
Commitment Fees and Letter of Credit Fees (other than those payable to a
Fronting Bank) shall
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be made pro rata among the Lenders in accordance with their Commitments. All
payments by the Borrowers hereunder shall be (i) except as otherwise provided in
Section 2.18, net of any tax applicable to the Borrowers and (ii) made in
Dollars in immediately available funds at the office of the Administrative Agent
by 12:00 noon, New York City time, on the date on which such payment shall be
due. Interest in respect of any Loan hereunder shall accrue from and including
the date of such Loan to but excluding the date on which such Loan is paid in
full or converted to a Loan of a different Type.
SECTION 2.18 Taxes.
(a) Except as otherwise provided in this Section 2.18, any and
all payments by the Borrowers hereunder shall be made free and clear of and
without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) taxes imposed on or measured by the net income, net profit or
overall gross receipts of the Administrative Agent or any Lender (or any
transferee or assignee thereof, including a participation holder (any such
entity being called a "TRANSFEREE")) and franchise taxes imposed on the
Administrative Agent or any Lender (or Transferee) by the United States or any
jurisdiction under the laws of which the Administrative Agent or any such Lender
(or Transferee) is organized or in which the applicable lending office of any
such Lender (or Transferee) or applicable office of the Administrative Agent, is
located or any political subdivision thereof or by any other jurisdiction or by
any political subdivision or taxing authority therein other than a jurisdiction
in which the Administrative Agent or such Lender (or Transferee) would not be
subject to tax but for the execution and performance of this Agreement and (ii)
taxes, levies, imposts, deductions, charges or withholdings ("AMOUNTS") with
respect to payments hereunder to a Lender (or Transferee) or the Administrative
Agent in accordance with laws in effect on the later of the date of this
Agreement and the date such Lender (or Transferee) or the Administrative Agent
becomes a Lender (or Transferee or Administrative Agent, as the case may be) but
not excluding, with respect to such Lender (or Transferee) or the Administrative
Agent, any increase in such Amounts solely as a result of any change in such
laws occurring after such later date or any Amounts that would not have been
imposed but for actions (other than actions contemplated by this Agreement)
taken by the Borrowers after such later date (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "TAXES"). If the Borrowers shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder to the
Lenders (or any Transferee) or the Administrative Agent, (i) the sum payable
shall be increased by the amount necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) such Lender (or Transferee) or the Administrative Agent (as the
case may be) shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrowers shall make such deductions and
(iii) the Borrowers shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers agree to pay any current or
future stamp or documentary taxes or any other excise or property taxes,
charges, assessments or similar levies that arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "OTHER TAXES").
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(c) The Borrowers will indemnify each Lender (or Transferee)
and the Administrative Agent for the full amount of Taxes and Other Taxes paid
by such Lender (or Transferee) or the Administrative Agent, as the case may be,
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted by the relevant taxing authority or other Governmental
Authority. Such indemnification shall be made within thirty (30) days after the
date any Lender (or Transferee) or the Administrative Agent, as the case may be,
makes written demand therefor. If a Lender (or Transferee) or the Administrative
Agent shall become aware that it is entitled to receive a refund in respect of
Taxes or Other Taxes as to which it has been indemnified by the Borrowers
pursuant to this Section, it shall promptly notify the Borrowers of the
availability of such refund and shall, within thirty (30) days after receipt of
a request by the Borrowers, apply for such refund at the Borrowers' expense. If
any Lender (or Transferee) or the Administrative Agent receives a refund in
respect of any Taxes or Other Taxes as to which it has been indemnified by the
Borrowers pursuant to this Section, it shall promptly notify the Borrowers of
such refund and shall, within thirty (30) days after receipt of a request by the
Borrowers (or promptly upon receipt, if the Borrowers have requested application
for such refund pursuant hereto), repay such refund to the Borrowers (to the
extent of amounts that have been paid by the Borrowers under this Section with
respect to such refund plus interest that is received by the Lender (or
Transferee) or the Administrative Agent as part of the refund), net of all
out-of-pocket expenses of such Lender (or Transferee) or the Administrative
Agent and without additional interest thereon; provided that the Borrowers, upon
the request of such Lender (or Transferee) or the Administrative Agent, agree to
return such refund (plus penalties, interest or other charges) to such Lender
(or Transferee) or the Administrative Agent in the event such Lender (or
Transferee) or the Administrative Agent is required to repay such refund.
Nothing contained in this subsection (c) shall require any Lender (or
Transferee) or the Administrative Agent to make available any of its tax returns
(or any other information relating to its taxes that it deems to be
confidential).
(d) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes withheld by the Borrowers in respect of any payment to any
Lender (or Transferee) or the Administrative Agent, the Borrowers will furnish
to the Administrative Agent, at its address referred to on the signature pages
hereof, the original or a certified copy of a receipt evidencing payment
thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each Lender (and Transferee) and the Administrative Agent
shall, if not a United States Person (as such term is defined in Section
7701(a)(30) of the Code), on or prior to the Closing Date (in the case of each
Lender listed on the signature pages hereof on the Closing Date) or on or prior
to the date of the Assignment and Acceptance pursuant to which it becomes a
Lender (in the case of each other Lender), deliver to the Borrowers and the
Administrative Agent such certificates, documents and other evidence, as
required by the Code or Treasury Regulations issued pursuant thereto or by
Canadian law, including two original copies of (A) Internal Revenue Service Form
W-9 (unless such Lender (or Transferee) or the Administrative Agent is an
"exempt recipient" as defined in Treasury Regulations Section 1.6049-4(c) for
which
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no withholding is required) and two original copies of (B) Internal Revenue
Service Forms 1001, 4224, W-8BEN or W-8ECI and any other certificate or
statement of exemption required by Treasury Regulation Section 1.1441-1,
1.1441-4 or 1.1441-6(c) or any subsequent version thereof or successors thereto,
properly completed and duly executed by such Lender (or Transferee) or the
Administrative Agent to establish that such payment is (i) not subject to United
States Federal withholding tax under the Code because such payment is
effectively connected with the conduct by such Lender (or Transferee) or the
Administrative Agent of a trade or business in the United States or (ii) totally
exempt from United States Federal withholding tax or subject to a reduced rate
of such tax under a provision of an applicable tax treaty. Unless the Borrowers
and the Administrative Agent have received forms or other documents satisfactory
to them indicating that such payments hereunder are not subject to United States
Federal withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Borrowers or the Administrative Agent shall withhold
taxes from such payments at the applicable statutory rate.
(g) The Borrowers shall not be required to pay any additional
amounts to any Lender (or Transferee) or the Administrative Agent in respect of
United States Federal withholding tax pursuant to subsection (a) above if the
obligation to pay such additional amounts would not have arisen but for a
failure by such Lender (or Transferee) or the Administrative Agent to comply
with the provisions of subsection (f) above.
(h) Any Lender (or Transferee) or the Administrative Agent
claiming any additional amounts payable pursuant to this Section 2.18 shall use
reasonable efforts (consistent with legal and regulatory restrictions) to file
any certificate or document requested by the Borrowers or to change the
jurisdiction of its applicable lending office if the making of such a filing or
change would avoid the need for or reduce the amount of any such additional
amounts that may thereafter accrue and would not, in the sole determination of
such Lender (or Transferee) or the Administrative Agent, be otherwise materially
disadvantageous to such Lender (or Transferee) or the Administrative Agent.
SECTION 2.19 Certain Fees. The Borrowers shall pay to the
Administrative Agent, for the respective accounts of the Administrative Agent
and the Lenders, the fees set forth in that certain letter dated June 19, 2001
among the Administrative Agent, X.X. Xxxxxx Securities Inc. and the Borrowers at
the times set forth therein.
SECTION 2.20 Commitment Fee. The Borrowers shall pay to the Lenders a
commitment fee (the "COMMITMENT FEE") for the period commencing on the date the
Commitment Letter is executed to the Termination Date or the earlier date of
termination of the Commitment calculated (on the basis of the actual number of
days elapsed over a year of 360 days) at a rate equal to the Applicable
Commitment Fee Percentage on the average daily Unused Total Commitment during
the preceding quarter. Such Commitment Fee, to the extent then accrued, shall be
payable (x) monthly, in arrears, on the last calendar day of each month, (y) on
the Termination Date and (z) as provided in Section 2.10 hereof, upon any
reduction or termination in whole or in part of the Total Commitment.
SECTION 2.21 Letter of Credit Fees. The Borrowers shall pay with
respect to each Letter of Credit (i) to the Administrative Agent on behalf of
the Lenders a fee calculated (on the
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basis of the actual number of days elapsed over a year of 360 days) at a rate
equal to the Applicable Margin for Eurodollar Borrowings per annum on the
undrawn stated amount thereof, and (ii) to the Fronting Bank such Fronting
Bank's customary fees for fronting (as set forth in the Fee Letter), issuance,
amendments and processing referred to in Section 2.3. In addition, the Borrowers
agree to pay each Fronting Bank for its account a fronting fee in respect of
each Letter of Credit issued by such Fronting Bank, for the period from and
including the date of issuance of such Letter of Credit to and including the
date of termination of such Letter of Credit, computed at a rate, and payable at
times, to be determined by such Fronting Bank, the Borrowers and the
Administrative Agent. Accrued fees described in clause (i) of the first sentence
of this paragraph in respect of each Letter of Credit shall be due and payable
monthly in arrears on the last calendar day of each month and on the Termination
Date, or such earlier date as the Total Commitment is terminated. Accrued fees
described in clause (ii) of the first sentence of this paragraph in respect of
each Letter of Credit shall be payable at times to be determined by the Fronting
Bank, the Borrowers and the Administrative Agent.
SECTION 2.22 Nature of Fees. All Fees shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for the respective
accounts of the Administrative Agent and the Lenders, as provided herein and in
the letter described in Section 2.19. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.23 Priority and Liens.
(a) The Borrowers hereby covenant, represent and warrant that,
upon entry of the Interim Order, the Obligations of the Borrowers hereunder and
under the Loan Documents and in respect of Indebtedness permitted by Section
6.3(v): (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all
times constitute an allowed Superpriority Claim; (ii) pursuant to Section
364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected
first priority Lien on all unencumbered property of the Borrowers and on all
cash maintained in the Letter of Credit Account and any direct investments of
the funds contained therein, provided that following the Termination Date
amounts in the Letter of Credit Account shall not be subject to the Carve-Out;
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by
a perfected Lien upon all property of the Borrowers that is subject to valid and
perfected Permitted Liens in existence on the Filing Date or that is subject to
valid Permitted Liens in existence on the Filing Date that are perfected
subsequent to the Filing Date as permitted by Section 546(b) of the Bankruptcy
Code; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, be secured
by a perfected first priority, senior priming Lien on all of the property of the
Borrowers (including, without limitation, inventory, accounts receivable, rights
under license agreements, property, plant and equipment, interests in leaseholds
and capital stock of Subsidiaries of the Parent, limited, in the case of an
entity that is a controlled foreign corporation under Section 957 of the Code,
to 66% of the voting stock of such entity) that is subject to any existing Liens
(except Permitted Liens), subject in each case only to (x) in the event of the
occurrence and during the continuance of an Event of Default or an event that
would constitute an Event of Default with the giving of notice or lapse of time
or both, the payment of allowed and unpaid professional fees and disbursements
incurred by the Borrowers and any statutory committees appointed in the Cases in
an aggregate amount not in excess of $5,000,000 and (y) the payment of fees
pursuant to 28 U.S.C. Section 1930 to the Clerk of the Bankruptcy Court
(collectively, the "CARVE-OUT"). By execution hereof, the Borrowers hereby
consent to the priming Lien
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referenced in clause (iv) above. Following the Termination Date, amounts in the
Letter of Credit Account shall not be subject to the Carve-Out. Notwithstanding
the foregoing, so long as no Event of Default or event which with the giving of
notice or lapse of time or both would constitute an Event of Default shall have
occurred and be continuing, the Borrowers shall be permitted to pay compensation
and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330
and 11 U.S.C. Section 331, as the same may be due and payable, and any
compensation and expenses previously paid, or accrued but unpaid, prior to the
occurrence of such Event of Default shall not reduce the Carve-Out.
(b) The obligations of the Guarantor under the Loan Documents
shall be secured by a perfected first priority Lien on all of the property of
the Guarantor (including, without limitation, inventory, accounts receivable,
rights under license agreements, property, plant and equipment, interests in
leaseholds and capital stock of Subsidiaries of the Parent, limited, in the case
of an entity that is a controlled foreign corporation under Section 957 of the
Code, to 66% of the voting stock of such entity).
(c) As to all real property the title to which is held by a
Borrower or the Guarantor, or the possession of which is held by a Borrower or
the Guarantor pursuant to leasehold interest, the Borrowers and the Guarantor
hereby assign and convey as security, grant a security interest in, hypothecate,
mortgage, pledge and set over unto the Administrative Agent on behalf of the
Lenders all of the right, title and interest of the Borrowers or the Guarantor,
as applicable, in all of such owned real property and in all such leasehold
interests, together in each case with all of the right, title and interest of
the Borrowers and the Guarantor in and to all buildings, improvements, and
fixtures related thereto, any lease or sublease thereof, all general intangibles
relating thereto and all proceeds thereof. The Borrowers acknowledge that,
pursuant to the Interim Order (or the Final Order, as applicable), the Liens in
favor of the Administrative Agent on behalf of the Lenders in all of such real
property and leasehold instruments of the Borrowers shall be perfected without
the recordation of any instruments of mortgage or assignment. The Borrowers and
the Guarantor further agree that, upon the request of the Administrative Agent,
in the exercise of its business judgment, the Borrowers and the Guarantor shall
enter into separate fee and leasehold mortgages in recordable form with respect
to such properties on terms satisfactory to the Administrative Agent.
SECTION 2.24 Right of Set-Off. Subject to the provisions of Section
7.1, upon the occurrence and during the continuance of any Event of Default, the
Administrative Agent and each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law and without further order
of or application to the Bankruptcy Court, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Administrative Agent and
each such Lender to or for the credit or the account of any Borrower against any
and all of the obligations of such Borrower now or hereafter existing under the
Loan Documents, irrespective of whether or not such Lender shall have made any
demand under any Loan Document and although such obligations may not have been
accelerated. Each Lender and the Administrative Agent agrees promptly to notify
the Borrowers after any such set-off and application made by such Lender or by
the Administrative Agent, as the case may be, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender and the Administrative Agent under this Section are in
addition to other rights and remedies which such
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Lender and the Administrative Agent may have upon the occurrence and during the
continuance of any Event of Default.
SECTION 2.25 Security Interest in Letter of Credit Account. Pursuant to
Section 364(c)(2) of the Bankruptcy Code, the Borrowers hereby assign and pledge
to the Administrative Agent, for its benefit and for the ratable benefit of the
Lenders, and hereby grant to the Administrative Agent, for its benefit and for
the ratable benefit of the Lenders, a first priority security interest, senior
to all other Liens, if any, in all of the Borrowers' right, title and interest
in and to the Letter of Credit Account and any direct investment of the funds
contained therein. Cash held in the Letter of Credit Account shall not be
available for use by the Borrowers, whether pursuant to Section 363 of the
Bankruptcy Code or otherwise.
SECTION 2.26 Payment of Obligations. Subject to the provisions of
Section 7.1, upon the maturity (whether by acceleration or otherwise) of any of
the Obligations under this Agreement or any of the other Loan Documents of the
Borrowers, the Lenders shall be entitled to immediate payment of such
Obligations without further application to or order of the Bankruptcy Court.
SECTION 2.27 No Discharge; Survival of Claims. Each of the Borrowers
agrees that (i) its obligations hereunder shall not be discharged by the entry
of an order confirming a Reorganization Plan (and each of the Borrowers,
pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such
discharge) and (ii) the Superpriority Claim granted to the Administrative Agent
and the Lenders pursuant to the Order and described in Section 2.23 shall not be
affected in any manner by the entry of an order confirming a Plan of
Reorganization.
SECTION 2.28 Replacement of Certain Lenders. In the event a Lender
("AFFECTED LENDER") shall have: (i) failed to fund its Commitment Percentage of
any Loan requested by the Borrowers or to fund its Commitment Percentage of any
unreimbursed payment made by the Fronting Bank, which such Lender is obligated
to fund under the terms of this Agreement and which failure has not been cured,
(ii) requested compensation from the Borrowers under Section 2.15 with respect
to increased costs or capital or under Section 2.18 to recover Taxes, Other
Taxes or other additional costs incurred by such Lender which, in any case, are
not being incurred generally by the other Lenders, or (iii) delivered a notice
pursuant to Section 2.16 claiming that such Lender is unable to extend
Eurodollar Loans to the Borrowers for reasons not generally applicable to the
other Lenders, then, in any case, the Borrowers or the Administrative Agent may
make written demand on such Affected Lender (with a copy to the Administrative
Agent in the case of a demand by the Borrowers and a copy to the Borrowers in
the case of a demand by the Administrative Agent) for the Affected Lender to
assign, and such Affected Lender shall use commercially reasonable efforts to
assign pursuant to one or more duly executed Assignments and Acceptances five
(5) Business Days after the date of such demand, to one or more financial
institutions that comply with the provisions of Section 10.3 which the Borrowers
or the Administrative Agent, as the case may be, shall have engaged for such
purpose ("REPLACEMENT LENDER"), all of such Affected Lender's rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, its Commitment, all Loans owing to it, all of its
participation interests in existing Letters of Credit, and its obligation to
participate in additional Letters of Credit hereunder) in accordance with
Section 10.3. The Administrative Agent agrees, upon the occurrence of such
events with respect to an Affected
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Lender and upon the written request of the Borrowers, to use its reasonable
efforts to obtain the commitments from one or more financial institutions to act
as a Replacement Lender. The Administrative Agent is authorized to execute one
or more of such Assignments and Acceptances as attorney-in-fact for any Affected
Lender failing to execute and deliver the same within five (5) Business Days
after the date of such demand. Further, with respect to such assignment the
Affected Lender shall have concurrently received, in cash, all amounts due and
owing to the Affected Lender hereunder or under any other Loan Document,
including, without limitation, the aggregate outstanding principal amount of the
Loans owed to such Lender, together with accrued interest thereon through the
date of such assignment, amounts payable under Section 2.15 with respect to such
Affected Lender and compensation payable under Section 2.20 in the event of any
replacement of any Affected Lender under clause (ii) or clause (iii) of this
Section 2.28; provided that upon such Affected Lender's replacement, such
Affected Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15, 10.5 and 10.6, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under Section 8.6 with respect to losses, obligations, liabilities,
damages, penalties, actions, judgments, costs, expenses or disbursements for
matters which occurred prior to the date the Affected Lender is replaced.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to make Loans and issue and/or
participate in Letters of Credit hereunder, each of the Borrowers, jointly and
severally, and the Guarantor (as applicable) represent and warrant as follows:
SECTION 3.1 Organization and Authority. Each of the Borrowers and the
Guarantor (i) is duly organized, validly existing and in good standing under the
law of its jurisdiction of organization; (ii) is duly qualified to do business
and in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on the financial condition, operations,
business, properties or assets of the Borrowers and the Guarantor taken as a
whole; (iii) subject to the entry by the Bankruptcy Court of the Interim Order
(or the Final Order, as applicable), has the requisite power and authority to
effect the transactions contemplated hereby, and by the other Loan Documents to
which it is a party, and (iv) subject to the entry by the Bankruptcy Court of
the Interim Order (or the Final Order, as applicable), has all requisite power
and authority and the legal right to own and operate its properties, and to
conduct its business as now or currently proposed to be conducted.
SECTION 3.2 Due Execution. Upon the entry by the Bankruptcy Court of
the Interim Order (or the Final Order, as applicable), the execution, delivery
and performance by each of the Borrowers and the Guarantor of each of the Loan
Documents to which it is a party, including, without limitation, the grant and
pledge by the Borrowers of the security interests granted by the Security and
Pledge Agreement, (i) are within the respective powers of each of the Borrowers
and the Guarantor, have been duly authorized by all necessary action, including
the consent of shareholders, partners or members, where required, and do not (A)
contravene the Organizational Documents of any of the Borrowers, (B) violate any
law (including, without limitation, the Securities Exchange Act of 1934) or
regulation (including, without limitation, Regulations T, U or X of the Board),
or any order or decree of any court or Governmental Authority, (C) conflict with
or result in a breach of, or constitute a default under, any indenture, mortgage
or deed of
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trust entered into after the Filing Date or any lease, agreement or other
instrument entered into after the Filing Date binding on the Borrowers, the
Guarantor or any of their respective properties, or (D) result in or require the
creation or imposition of any Lien upon any of the property of any of the
Borrowers other than Liens granted pursuant to this Agreement; and (ii) do not
require the consent, authorization by or approval of or notice to or filing or
registration with any Governmental Authority other than the entry of the Interim
Order (or the Final Order, as applicable). Except for the entry of the Interim
Order (or the Final Order, as applicable), no authorization, approval or other
action by, and no notice to or filing with, any Governmental Authority or
regulatory body is required for the perfection of the security interests or the
exercise by the Administrative Agent or the Lenders of their respective rights
and remedies under the Loan Documents. Upon the entry by the Bankruptcy Court of
the Interim Order (or the Final Order, as applicable), this Agreement shall have
been duly executed and delivered by each of the Borrowers and the Guarantor.
Upon the entry by the Bankruptcy Court of the Interim Order (or the Final Order,
as applicable), this Agreement, and each of the other Loan Documents to which
the Borrowers and/or the Guarantor are or will be a party, when delivered
hereunder or thereunder, will be, a legal, valid and binding obligation of each
Borrower and the Guarantor, enforceable against the Borrowers and the Guarantor
in accordance with its terms and the Orders.
SECTION 3.3 Statements Made. The information that has been delivered in
writing by any of the Borrowers or the Guarantor to the Administrative Agent or
to the Bankruptcy Court in connection with any Loan Document, and any financial
statement delivered pursuant hereto or thereto (other than to the extent that
any such statements constitute projections), taken as a whole and in light of
the circumstances in which made, contains no untrue statement of a material fact
and does not omit to state a material fact necessary to make such statements not
misleading; and, to the extent that any such information constitutes
projections, such projections were prepared in good faith on the basis of
assumptions, methods, data, tests and information believed by such Borrower or
the Guarantor to be reasonable at the time such projections were furnished.
SECTION 3.4 Financial Statements. The Borrowers have furnished the
Lenders with copies of (i) the audited consolidated financial statement and
schedules of the Borrowers and their Subsidiaries for the fiscal year ended
December 31, 2000 and (ii) the unaudited consolidated financial statement and
schedules of the Borrowers and the Guarantor and their Subsidiaries for the
fiscal quarter ending after March 31, 2001. Such financial statements present
fairly the financial condition and results of operations of the Borrowers and
the Guarantor and their Subsidiaries on a consolidated basis as of such dates
and for such periods; such balance sheets and the notes thereto disclose all
liabilities, direct or contingent, of the Borrowers and the Guarantor and their
Subsidiaries as of the dates thereof required to be disclosed by GAAP and such
financial statements were prepared in a manner consistent with GAAP, subject (in
the case of such fiscal quarter statement) to normal year end adjustments. No
material adverse change in the operations, businesses, properties, assets,
prospects or condition (financial or otherwise) of the Borrowers and the
Guarantor and their Subsidiaries, taken as a whole, has occurred from that set
forth in the Borrowers' consolidated financial statements for the fiscal year
ended December 31, 2000 and the fiscal quarter ended March 31, 2001 (as
supplemented by the Borrowers' disclosure on Form 8-K as filed with the
Securities and Exchange Commission dated March 23, 2001) other than those which
customarily occur as a result of events leading up to and following the
commencement of a proceeding under Chapter
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11 of the Bankruptcy Code and the commencement of the Cases (including, without
limitation, those reflected in the financial projections heretofore made
available to the Administrative Agent).
SECTION 3.5 Ownership. Each of the Persons listed on Schedule 3.5 is a
direct or indirect Subsidiary of the Borrowers and the Guarantor and Schedule
3.5 correctly sets forth the ownership interest of each of the Borrowers and the
Guarantor in their respective Subsidiaries, in each case as of the Closing Date.
None of the Borrowers nor the Guarantor owns any other Subsidiaries, whether
directly or indirectly, other than as set forth on Schedule 3.5.
SECTION 3.6 Liens. There are no Liens of any nature whatsoever on any
assets of any of the Borrowers, the Guarantor or their Domestic Subsidiaries
other than (i) Permitted Liens, (ii) Liens securing Intercompany Indebtedness
reflected on Schedule 6.10, and (iii) Liens in favor of the Administrative Agent
and the Lenders, it being understood that Schedule 3.6 and Schedule 6.10 may be
supplemented prior to the entry of the Final Order. Neither the Borrowers, the
Guarantor nor their Domestic Subsidiaries are parties to any contract,
agreement, lease or instrument the performance of which, either unconditionally
or upon the happening of an event, will result in or require the creation of a
Lien on any assets of any Borrower or the Guarantor or any of their Domestic
Subsidiaries or otherwise result in a violation of this Agreement other than the
Liens granted to the Administrative Agent and the Lenders as provided for in
this Agreement.
SECTION 3.7 Compliance with Law
(a) (i) The operations of the Borrowers and the Guarantor and
their Subsidiaries comply with all applicable environmental, health and safety
statutes and regulations, including, without limitation, regulations promulgated
under the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et
seq.); (ii) none of the operations of the Borrowers or the Guarantor or their
Subsidiaries is the subject of any Federal or state investigation evaluating
whether any remedial action involving a material expenditure by the Borrowers is
needed to respond to a release of any Hazardous Waste or Hazardous Substance (as
such terms are defined in any applicable state or Federal environmental law or
regulations) into the environment; and (iii) the Borrowers and the Guarantor and
their Subsidiaries do not have any contingent liability in connection with any
release of any Hazardous Waste or Hazardous Substance into the environment,
except, in each case, for any non-compliance, investigation or liabilities that
could not reasonably be expected to have a Material Adverse Effect.
(b) None of the Borrowers or the Guarantor or their
Subsidiaries is in violation of any law, rule or regulation, or in default with
respect to any judgment, writ, injunction or decree of any Governmental
Authority the violation of which, or a default with respect to which, would have
a material adverse effect on the financial condition, operations, businesses,
properties or assets of the Borrowers and the Guarantor and their Subsidiaries
taken as a whole.
SECTION 3.8 Insurance. All policies of insurance of any kind or nature
owned by or issued to the Borrowers and the Guarantor and their Subsidiaries,
including, without limitation, policies of life, fire, theft, product liability,
public liability, property damage, other casualty,
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employee fidelity, workers' compensation, employee health and welfare, title,
property and liability insurance, are in full force and effect and are of a
nature and provide such coverage as is customarily carried by companies of the
size and character of the Borrowers and the Guarantor and their Subsidiaries.
SECTION 3.9 The Orders. On the date of the making of the initial Loans
or the issuance of the initial Letters of Credit hereunder, whichever first
occurs, the Interim Order will have been entered and will not have been stayed,
amended, vacated, reversed or rescinded. On the date of the making of any Loan
or the issuance of any Letter of Credit, the Interim Order or the Final Order,
as the case may be, shall have been entered and shall not have been amended,
stayed, vacated or rescinded. Upon the maturity (whether by the acceleration or
otherwise) of any of the obligations of the Borrower and the Guarantor hereunder
and under the other Loan Documents, the Lenders shall, subject to the provisions
of Section 7.1, be entitled to immediate payment of such obligations, and to
enforce the remedies provided for hereunder, without further application to or
order by the Bankruptcy Court.
SECTION 3.10 Use of Proceeds. The proceeds of the Loans shall be used
in accordance with Section 2.2 for (i) working capital; (ii) other general
corporate purposes of the Borrowers; (iii) payment of any related transaction
costs, fees and expenses; and (iv) refinancing of the Receivables Purchase
Agreement. The Letters of Credit shall be issued in support of obligations of
the Borrowers that are consistent with past practices of the Borrowers, as
disclosed to the Administrative Agent.
SECTION 3.11 Litigation. There are no unstayed actions, suits or
proceedings pending or, to the best knowledge of the Borrowers or the Guarantor,
threatened against or affecting the Borrowers or the Guarantor or their
Subsidiaries or any of their respective properties, before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that are reasonably likely to have a material adverse
effect on the operations, businesses, properties, assets, prospects or financial
condition of the Borrowers and the Guarantor and their Subsidiaries taken as a
whole.
SECTION 3.12 Intellectual Property. Set forth on Schedule 3.12 hereto
is a complete and accurate list of all patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses thereof, of
each Borrower or any of its Domestic Subsidiaries, showing as of the date hereof
the jurisdiction in which registered, the registration number, the date of
registration and the expiration date.
SECTION 4. CONDITIONS OF LENDING
SECTION 4.1 Conditions Precedent to Initial Loan and Initial Letter of
Credit. The obligation of the Lenders to make the initial Loan or the Fronting
Bank to issue the initial Letter of Credit, whichever may occur first, is
subject to the following conditions precedent:
(a) Supporting Documents. The Administrative Agent shall have
received for each of the Borrowers and the Guarantor:
(i) a copy of each Organizational Document originally executed
and delivered by each Borrower and the Guarantor, as applicable, and,
to the extent
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applicable, certified as of a recent date by the applicable
Governmental Authority, each dated the Closing Date or a recent date
prior thereto; provided, that the Administrative Agent may, in its
discretion, accept Organizational Documents of the Borrowers and the
Guarantor certified by a Secretary or Assistant Secretary of the
Borrowers and the Guarantor in lieu of certification by Governmental
Authorities (subject to receipt of an undertaking from the Borrowers
and the Guarantor to effect delivery of such documents certified by a
Governmental Authorities on a post-Closing Date basis);
(ii) signature and incumbency certificates of the officers of
such Person executing the Loan Documents to which it is a party, dated
as of the Closing Date;
(iii) duly adopted resolutions of the board of directors or
similar governing body of each Borrower and the Guarantor approving and
authorizing the execution, delivery and performance of this Agreement
and the other Loan Documents to which it is a party or by which it or
its assets may be bound as of the Closing Date, certified as of the
Closing Date by its secretary or assistant secretary as being in full
force and effect without modification or amendment;
(iv) a good standing certificate from the applicable
Governmental Authority of each Borrower's and the Guarantor's
jurisdiction of incorporation, organization or formation and in each
jurisdiction in which it is qualified as a foreign corporation or other
entity to do business (except in the case of United States Gypsum
Company, L&W Supply Corporation and USG Interiors, Inc., as to which
good standing certificates shall be delivered in respect of their
respective jurisdictions of incorporation and the jurisdictions in
which their principal places of business are located) each dated a
recent date prior to the Closing Date; and
(v) such other documents as the Administrative Agent may
reasonably request.
(b) Interim Order. Not later than ten (10) days following the
Filing Date, the Administrative Agent and the Lenders shall have received a
certified copy of an order of the Bankruptcy Court in substantially the form of
Exhibit A-1 (the "INTERIM ORDER") approving the Loan Documents and granting the
Superpriority Claim status and senior priming and other Liens described in
Section 2.23 which Interim Order (i) shall have been entered upon an application
or motion of the Borrowers reasonably satisfactory in form and substance to the
Administrative Agent, which Interim Order shall have been entered on such prior
notice to such parties as may be satisfactory to the Administrative Agent, (ii)
shall authorize extensions of credit in amounts satisfactory to the
Administrative Agent, (iii) shall approve the payment by the Borrowers of all of
the Fees set forth in Sections 2.19, 2.20 and 2.21, (iv) shall be in full force
and effect and (v) shall not have been stayed, reversed, modified or amended in
any respect; and, if the Interim Order is the subject of a pending appeal in any
respect, neither the making of such Loan nor the issuance of such Letter of
Credit nor the performance by any of the Borrowers or the Guarantor of any of
their obligations hereunder or under the Loan Documents or under any other
instrument or agreement referred to herein shall be the subject of a presently
effective stay pending appeal.
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(c) Security and Pledge Agreement. The Borrowers and the
Guarantor shall have duly executed and delivered to the Administrative Agent a
Security and Pledge Agreement in substantially the form of Exhibit B (the
"SECURITY AND PLEDGE AGREEMENT").
(d) First Day Orders. All of the "first day orders" entered by
the Bankruptcy Court at the time of the commencement of the Cases shall be
reasonably satisfactory in form and substance to the Administrative Agent.
(e) Opinion of Counsel. The Administrative Agent and the
Lenders shall have received the favorable written opinion of counsel to the
Borrowers, reasonably acceptable to the Administrative Agent substantially in
the form of Exhibit C.
(f) Payment of Fees. The Borrowers shall have paid to the
Administrative Agent the then unpaid balance of all accrued and unpaid Fees due
under and pursuant to this Agreement and the letter referred to in Section 2.19.
(g) Corporate and Judicial Proceedings. All corporate and
judicial proceedings and all instruments and agreements in connection with the
transactions among the Borrowers, the Guarantor, the Administrative Agent and
the Lenders contemplated by this Agreement shall be satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall have
received all information and copies of all documents and papers, including
records of corporate and judicial proceedings, which the Administrative Agent
may have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate, governmental or judicial
authorities.
(h) Information. The Administrative Agent shall have received
such information (financial or otherwise) as may be reasonably requested by the
Administrative Agent and shall have discussed such information with the
Borrowers' management and shall be satisfied with the nature and substance of
such discussions.
(i) Forecast. The Administrative Agent and the Lenders shall
have received from the Borrowers a forecast of the Borrowers' cash flows for the
period through the Maturity Date on a quarterly basis and setting forth the
anticipated uses of the Loans under the Agreement and such forecast shall be
satisfactory in form and substance to them.
(j) Compliance with Laws. The Borrowers and the Guarantor
shall have granted the Administrative Agent access to and the right to inspect
all reports, audits and other internal information of the Borrowers and the
Guarantor relating to environmental matters and any third party verification of
certain matters relating to compliance with environmental laws and regulations
requested by the Administrative Agent, and the Administrative Agent shall be
reasonably satisfied that the Borrowers and the Guarantor are in compliance in
all material respects with all applicable environmental laws and regulations and
be satisfied with the costs of maintaining such compliance.
(k) Closing Documents. The Administrative Agent shall have
received all documents required by this Agreement satisfactory in form and
substance to the Administrative Agent.
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(l) UCC-11 Searches. The Administrative Agent shall have
received UCC-11 searches conducted in the jurisdictions in which the Borrowers
conduct business, satisfactory to the Administrative Agent (dated as of a date
reasonably satisfactory to the Agent), reflecting the absence of Liens and
encumbrances on the assets of the Borrowers other than Permitted Liens.
SECTION 4.2 Conditions Precedent to Each Loan and Each Letter of
Credit. The obligation of the Lenders to make each Loan and of the Fronting Bank
to issue each Letter of Credit, including the initial Loan and the initial
Letter of Credit, is subject to the following conditions precedent:
(a) Notice. The Administrative Agent shall have received a
notice with respect to each Borrowing or the issuance of each Letter of Credit,
as the case may be, as required by Section 2.
(b) Representations and Warranties. All representations and
warranties contained in this Agreement and the other Loan Documents shall be
true and correct in all material respects on and as of the date of each
Borrowing or the issuance of each Letter of Credit hereunder with the same
effect as if made on and as of such date except to the extent such
representations and warranties expressly relate to an earlier date.
(c) No Default. On the date of each Borrowing or the issuance
of each Letter of Credit hereunder, no Event of Default or event which upon
notice or lapse of time or both would constitute an Event of Default shall have
occurred and be continuing.
(d) Orders. The Interim Order shall be in full force and
effect and shall not have been stayed, reversed, modified or amended in any
respect without the prior written consent of the Administrative Agent and the
Required Lenders, provided that at the time of the making of any Loan or the
issuance of any Letter of Credit the aggregate amount of either of which, when
added to the sum of the principal amount of all Loans then outstanding and the
Letter of Credit Outstandings, would exceed the amount authorized by the Interim
Order (collectively, the "ADDITIONAL CREDIT"), the Administrative Agent and each
of the Lenders shall have received a certified copy of an order of the
Bankruptcy Court in substantially the form of Exhibit A-2 (the "FINAL ORDER"),
which, in any event, shall have been entered by the Bankruptcy Court no later
than forty five (45) days after the entry of the Interim Order, and at the time
of the extension of any Additional Credit the Final Order shall be in full force
and effect, and shall not have been stayed, reversed, modified or amended in any
respect without the prior written consent of the Administrative Agent and the
Required Lenders; and, if either the Interim Order or the Final Order is the
subject of a pending appeal in any respect, neither the making of the Loans nor
the issuance of any Letter of Credit nor the performance by any Borrower or the
Guarantor of any of their obligations under any of the Loan Documents or under
any other instrument or agreement referred to herein shall be the subject of a
presently effective stay pending appeal.
(e) Payment of Fees. The Borrowers shall have paid to the
Administrative Agent the then unpaid balance of all accrued and unpaid Fees then
due and payable under and pursuant to this Agreement and the letter referred to
in Section 2.19.
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(f) Borrowing Base Certificate. Commencing with the expiration
of the Initial Period, the Administrative Agent shall have received a Borrowing
Base Certificate dated no more than seven (7) days prior to each Borrowing or
the issuance of each Letter of Credit, which Borrowing Base Certificate shall
include supporting schedules as required by the Administrative Agent.
(g) Usage. The uses of such Borrowing or such Letter of Credit
shall be substantially consistent with the forecast described in Section 4.1(i)
(as updated from time to time), as applicable.
SECTION 5. AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Commitment shall
be in effect or any Letter of Credit shall remain outstanding (in a face amount
in excess of the amount of cash then held in the Letter of Credit Account, or in
excess of the face amount of back-to-back letters of credit delivered, in each
case pursuant to Section 2.3(b)), or any amount shall remain outstanding or
unpaid under this Agreement, each of the Borrowers and the Guarantor agrees
that, unless the Required Lenders shall otherwise consent in writing, the
Borrowers and the Guarantor will:
SECTION 5.1 Financial Statements, Reports, etc. Deliver to the
Administrative Agent and each of the Lenders:
(a) within ninety (90) days after the end of each fiscal year,
the Borrowers' and the Guarantor's consolidated and consolidating balance sheets
and related statements of income, stockholders' equity and cash flows, showing
the financial condition of the Borrowers, the Guarantor and their respective
Subsidiaries on a consolidated basis as of the close of such fiscal year and the
results of their respective operations during such year, the consolidated
statements of the Borrowers and the Guarantor to be audited for the Borrowers,
the Guarantor and their respective Subsidiaries by Xxxxxx Xxxxxxxx LLP or other
independent public accountants of recognized national standing acceptable to the
Required Lenders and accompanied by an opinion of such accountants (which shall
not be qualified other than with respect to the Cases or a going concern
qualification) and to be certified by a Financial Officer of Parent to the
effect that such consolidated financial statements fairly present the financial
condition and results of operations of the Borrowers, the Guarantor and their
respective Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within forty five (45) days after the end of each of the
first three fiscal quarters (but within sixty (60) days after the end of the
fiscal quarter ending June 30, 2001) and within ninety (90) days after the end
of the fourth fiscal quarter of each fiscal year, the Borrowers' and the
Guarantor's consolidated and consolidating balance sheets and related statements
of income, stockholders' equity and cash flows, showing the financial condition
of the Borrowers, the Guarantor and their respective Subsidiaries on a
consolidated basis as of the close of such fiscal quarter and the results of
their operations during such fiscal quarter and the then elapsed portion of the
fiscal year, each certified by a Financial Officer of Parent as fairly
presenting the financial condition and results of operations of the Borrowers,
the Guarantor and their respective Subsidiaries on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments;
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(c) concurrently with any delivery of financial statements
under (a) or (b) above as applicable, (i) a certificate of a Financial Officer
of each of the Borrowers and the Guarantor certifying such statements (A)
certifying that no Event of Default or event which upon notice or lapse of time
or both would constitute an Event of Default has occurred, or, if such an Event
of Default or event has occurred, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken with respect thereto and (B)
setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the provisions of Sections
6.3, 6.4, 6.5 and 6.10 and (ii) a certificate of such accountants accompanying
the audited consolidated financial statements delivered under (a) above
certifying that, in the course of the regular audit of the business of the
Borrowers, the Guarantor and their respective Subsidiaries, such accountants
have obtained no knowledge that an Event of Default has occurred and is
continuing, or if, in the opinion of such accountants, an Event of Default has
occurred and is continuing, specifying the nature thereof and all relevant facts
with respect thereto;
(d) as soon as available, but no more than forty five (45)
days after the end of each month, the unaudited monthly cash flow reports of the
Borrowers and the Guarantor on a consolidated basis and as of the close of such
fiscal month and the results of their operations during such fiscal period and
the then elapsed portion of the fiscal year;
(e) as soon as possible, and in any event within forty five
(45) days of the Closing Date, a consolidated pro forma balance sheet of the
Borrowers' financial condition as of June 30, 2001;
(f) concurrently with any delivery of financial statements
under (b) above, updates, if any, of the forecast delivered to the
Administrative Agent pursuant to Section 4.1(i), satisfactory in form and
substance to the Administrative Agent;
(g) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed by
it with the Securities and Exchange Commission, or any governmental authority
succeeding to any of or all the functions of said commission, or with any
national securities exchange, as the case may be;
(h) as soon as available and in any event (A) within thirty
(30) days after any Borrower or the Guarantor or any of their ERISA Affiliates
knows or has reason to know that any Termination Event described in clause (i)
of the definition of Termination Event with respect to any Single Employer Plan
of any of the Borrowers or the Guarantor or such ERISA Affiliate has occurred
and (B) within ten (10) days after any of the Borrowers or the Guarantor or any
of their ERISA Affiliates knows or has reason to know that any other Termination
Event with respect to any such Plan has occurred, a statement of a Financial
Officer of such Borrower or the Guarantor describing such Termination Event and
the action, if any, which such Borrower or the Guarantor or such ERISA Affiliate
proposes to take with respect thereto;
(i) promptly and in any event within ten (10) days after
receipt thereof by any of the Borrowers or the Guarantor or any of their ERISA
Affiliates from the PBGC copies of each notice received by such Borrower or the
Guarantor or any such ERISA Affiliate of the
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PBGC's intention to terminate any Single Employer Plan of such Borrower or the
Guarantor or such ERISA Affiliate or to have a trustee appointed to administer
any such Plan;
(j) if requested by the Administrative Agent, promptly and in
any event within thirty (30) days after the filing thereof with the Internal
Revenue Service, copies of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Single Employer Plan of any of
the Borrowers, the Guarantor or any of their ERISA Affiliates;
(k) within ten (10) days after notice is given or required to
be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of any
of the Borrowers or the Guarantor or any of their ERISA Affiliates to make
timely payments to a Plan, a copy of any such notice filed and a statement of a
Financial Officer of such Borrower or the Guarantor setting forth (A) sufficient
information necessary to determine the amount of the Lien under Section
302(f)(3), (B) the reason for the failure to make the required payments and (C)
the action, if any, which the Borrowers or the Guarantor or any of their ERISA
Affiliates proposed to take with respect thereto;
(l) promptly and in any event within ten (10) days after
receipt thereof by any of the Borrowers or the Guarantor or any ERISA Affiliate
from a Multiemployer Plan sponsor, a copy of each notice received by such
Borrower or the Guarantor or any ERISA Affiliate concerning (A) the imposition
of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within the
meaning of Title IV of ERISA, (C) the termination of a Multiemployer Plan within
the meaning of Title IV of ERISA, or (D) the amount of liability incurred, or
which may be incurred, by the Borrowers or the Guarantor or any ERISA Affiliate
in connection with any event described in clause (A), (B) or (C) above;
(m) promptly, from time to time, such other information
(including, without limitation, projections) regarding the operations, business
affairs and financial condition of any Borrower or the Guarantor, or compliance
with the terms of any material loan or financing agreements as the
Administrative Agent, at the request of any Lender, may reasonably request; and
(n) promptly after the same is available, copies of all
pleadings, motions, applications, judicial information, financial information
and other documents filed by or on behalf of any of the Borrowers with the
Bankruptcy Court in the Cases, or distributed by or on behalf of any of the
Borrowers to any official committee appointed in any of the Cases, providing
copies of same to counsel for the Administrative Agent.
SECTION 5.2 Existence. Preserve and maintain in full force and effect
all governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its businesses except
(i) (A) if in the reasonable business judgment of such Borrower or the Guarantor
it is in its best economic interest not to preserve and maintain such rights,
privileges, qualifications, permits, licenses and franchises, and (B) such
failure to preserve the same could not, in the aggregate, reasonably be expected
to have a material adverse effect on the operations, business, properties,
assets, prospects or condition
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(financial or otherwise) of the Borrowers and the Guarantor, taken as a whole,
and (ii) as otherwise permitted in connection with sales of assets permitted by
Section 6.11.
SECTION 5.3 Insurance. (a) Keep its insurable properties insured at all
times, against such risks, including fire and other risks insured against by
extended coverage, as is customary with companies of the same or similar size in
the same or similar businesses; and maintain in full force and effect public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by any Borrower or the Guarantor in such amounts
and with such deductibles as are customary with companies of the same or similar
size in the same or similar businesses and in the same geographic area; and (b)
maintain such other insurance or self insurance as may be required by law.
SECTION 5.4 Obligations and Taxes. With respect to each Borrower, pay
all its material obligations arising after the Filing Date promptly and in
accordance with their terms and pay and discharge promptly all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property arising after the Filing Date,
before the same shall become in default, as well as all material lawful claims
for labor, materials and supplies or otherwise arising after the Filing Date
which, if unpaid, would become a Lien or charge upon such properties or any part
thereof; provided, however, that neither any Borrower nor the Guarantor shall be
required to pay and discharge or to cause to be paid and discharged any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings (if the Borrowers or
the Guarantor, as the case shall be, shall have set aside on their books
adequate reserves therefor).
SECTION 5.5 Notice of Event of Default, etc. Promptly give to the
Administrative Agent notice in writing of:
(a) any Event of Default or the occurrence of any event or
circumstance which with the passage of time or giving of notice or both would
constitute an Event of Default; and
(b) any litigation, proceedings or material investigations
which may exist at any time between any Borrower or the Guarantor and any
Governmental Authority.
SECTION 5.6 Access to Books and Records.
(a) Maintain or cause to be maintained at all times true and
complete books and records in accordance with GAAP of the financial operations
of the Borrowers, the Guarantor and their respective Subsidiaries; and provide
the Administrative Agent and its representatives access to all such books and
records during regular business hours, in order that the Administrative Agent
may examine and make abstracts from such books, accounts, records and other
papers for the purpose of verifying the accuracy of the various reports
delivered by the Borrowers and the Guarantor to the Administrative Agent or the
Lenders pursuant to this Agreement or for otherwise ascertaining compliance with
this Agreement. The Borrowers and the Guarantor will permit (and will cause
their Subsidiaries to permit) any representatives designated by the
Administrative Agent to discuss its affairs, finances and condition with its
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officers and independent accounts, all at such reasonable times and as often as
reasonably requested.
(b) The Borrowers and the Guarantor will permit any
representatives designated by the Administrative Agent (including any
consultants, accountants, lawyers and appraisers retained by the Administrative
Agent) to conduct evaluations and appraisals of the Borrowers' or the
Guarantor's computation of the Borrowing Base and the assets included in the
Borrowing Base, all at such reasonable times and as often as reasonably
requested. The Borrowers shall pay the reasonable fees (including reasonable and
customary internally allocated fees of employees of the Administrative Agent as
to which invoices have been furnished) and expenses of any such representatives
retained by the Administrative Agent as to which invoices have been furnished to
conduct any such evaluation or appraisal, including the reasonable fees and
expenses associated with collateral monitoring services performed by the
Collateral Agent Services Group of the Administrative Agent. To the extent
required by the Administrative Agent as a result of any such evaluation,
appraisal or monitoring, the Borrowers and the Guarantor also agree to modify or
adjust the computation of the Borrowing Base (which may include maintaining
additional reserves, modifying the advance rates or modifying the eligibility
criteria for the components of the Borrowing Base).
(c) In the event that historical accounting practices, systems
or reserves relating to the components of the Borrowing Base are modified in a
manner that is adverse to the Lenders in any material respect, the Borrowers
will agree to maintain such additional reserves (for purposes of computing the
Borrowing Base) in respect to the components of the Borrowing Base and make such
other adjustments to its parameters for including the components of the
Borrowing Base as the Administrative Agent shall reasonably require based upon
such modifications.
(d) The Borrowers and the Guarantor will grant the
Administrative Agent access to and the right to inspect all reports, audits and
other internal information of the Borrowers and the Guarantor relating to
environmental matters upon reasonable notice, and obtain any third party
verification of matters relating to compliance with environmental laws and
regulations requested by the Administrative Agent at any time and from time to
time.
SECTION 5.7 Maintenance of Concentration Account. The Borrowers and the
Guarantor shall, within thirty (30) days after the Closing Date, and at all
times thereafter, maintain with the Administrative Agent an account or accounts
to be used by the Borrowers and the Guarantor as their principal concentration
account into which shall be deposited the available balances from the Borrowers'
and the Guarantor's lockbox accounts at the end of each Business Day, net of
disbursements paid in the ordinary course of business during such Business Day.
SECTION 5.8 Borrowing Base Certificate. Commencing upon the end of the
Initial Period, furnish to the Administrative Agent, no later than (i) three (3)
Business Days after each of the weeks ended, a completed Borrowing Base
Certificate as of the last day of the immediately preceding one week period,
(ii) eight (8) Business Days following the immediately preceding fiscal month
ended, a completed Borrowing Base Certificate showing the Borrowing Base as of
the close of business on the last day of such fiscal month, and (iii) if
requested by the Administrative Agent, at any other time when the Administrative
Agent reasonably believes that
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the then existing Borrowing Base Certificate is materially inaccurate, as soon
as reasonably available but in no event later than eight (8) Business Days after
such request, a completed Borrowing Base Certificate showing the Borrowing Base
as of the date so requested, in each case with supporting documentation and
additional reports with respect to the Borrowing Base as the Administrative
Agent may reasonably request. The components of the Borrowing Base consisting of
property, plant and equipment shall be updated from time to time upon receipt of
periodic valuation updates received from the Administrative Agent's asset
valuation experts. The components of the Borrowing Base consisting of inventory
shall be updated monthly as of the close of business on the last day of each
fiscal month.
SECTION 5.9 Budget. As soon as possible, and in any event not later
than February 28 of each year that any Commitment shall be in effect, furnish to
the Administrative Agent a budget detailing the Borrowers' anticipated cash
receipts and disbursements for their fiscal year ending December 31 of that same
year and setting forth the anticipated uses of the Total Commitment (the
"BUDGET"), all on a monthly basis and satisfactory in form and substance to the
Administrative Agent. The Borrowers shall make their senior management available
to discuss the Budget with the Administrative Agent upon the Administrative
Agent's reasonable request.
SECTION 6. NEGATIVE COVENANTS
From the date hereof and for so long as any Commitment shall
be in effect or any Letter of Credit shall remain outstanding (in a face amount
in excess of the amount of cash then held in the Letter of Credit Account, or in
excess of the face amount of back-to-back letters of credit delivered, in each
case pursuant to Section 2.3(b)) or any amount shall remain outstanding or
unpaid under this Agreement, unless the Required Lenders shall otherwise consent
in writing, each of the Borrowers and the Guarantor will not (and will not apply
to the Bankruptcy Court for authority to), and will cause each of their
respective Domestic Subsidiaries not to:
SECTION 6.1 Liens. Incur, create, assume or suffer to exist any Lien on
any asset of the Borrowers or the Guarantor now owned or hereafter acquired by
any Borrower or the Guarantor other than (i) Permitted Liens; (ii) Liens
securing Intercompany Indebtedness reflected on Schedule 6.10; and (iii) Liens
in favor of the Administrative Agent on behalf of the Lenders.
SECTION 6.2 Merger, etc. Consolidate or merge with or into another
Person.
SECTION 6.3 Indebtedness. Contract, create, incur, assume or suffer to
exist any Indebtedness, except for (i) Indebtedness under this Agreement; (ii)
Indebtedness incurred prior to the Filing Date (including existing Capitalized
Leases); (iii) Indebtedness incurred subsequent to the Filing Date secured by
purchase money Liens (exclusive of Capitalized Leases) in an aggregate amount
not to exceed $1,000,000 to the extent permitted by Section 6.4; (iv)
Indebtedness allowed under Sections 6.6 and 6.10; and (v) Indebtedness owed to
Chase or any of its banking Affiliates in respect of any overdrafts and related
liabilities arising from treasury, depository and cash management services or in
connection with any automated clearing house transfers of funds.
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SECTION 6.4 Capital Expenditures. Make Capital Expenditures (calculated
on a consolidated basis and to be defined in a manner satisfactory to the
Administrative Agent and which shall include Capitalized Leases) in an aggregate
amount in excess of $175,000,000 per fiscal year.
SECTION 6.5 EBITDA.
(a) At any time that the Total Usage is greater than
$200,000,000, as of the end of each fiscal quarter of the Borrowers permit
EBITDA for the immediately preceding four fiscal quarters to be less than
$50,000,000;
(b) Additionally, commencing with the fiscal quarter ending
December 31, 2002 and thereafter as of the end of each fiscal quarter of the
Borrowers, permit EBITDA for the immediately preceding four fiscal quarters to
be negative.
SECTION 6.6 Guarantees and Other Liabilities. Purchase or repurchase
(or agree, contingently or otherwise, so to do) the Indebtedness of, or assume,
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance of any obligation or capability of so
doing, or otherwise), endorse or otherwise become liable, directly or
indirectly, for the obligations, stock or dividends of any Person, except (i)
for any guaranty of Indebtedness or other obligations (or otherwise becoming
liable for any of the obligations) of any of the Borrowers in the ordinary
course of business and consistent with the past business practices with trade
vendors and for the purpose of entering into certain natural gas hedge
agreements, in each case, if such Indebtedness or the obligations are permitted
by this Agreement, (ii) by endorsement of negotiable instruments for deposit or
collection in the ordinary course of business; (iii) guaranties of obligations
of Foreign Subsidiaries permitted by Section 6.10; and (iv) guaranties of
obligations of third parties in connection with the Borrowers' or their
Subsidiaries' business operations in an aggregate amount not to exceed
$5,000,000.
SECTION 6.7 Chapter 11 Claims. Incur, create, assume, suffer to exist
or permit any other Superpriority Claim or Lien which is pari passu with or
senior to the claims or the Liens of the Administrative Agent and the Lenders
against the Borrowers and the Guarantor hereunder, except for the Carve-Out and
Liens permitted pursuant to clauses (i) or (ii) of Section 6.1.
SECTION 6.8 Dividends; Capital Stock. Except for distributions or
payments from one Borrower to another Borrower or from the Guarantor to any
Borrower (subject to the limitations on Investments set forth in Section 10.17),
declare or pay, directly or indirectly, any dividends or make any other
distribution or payment, whether in cash, property, securities or a combination
thereof, with respect to (whether by reduction of capital or otherwise) any
shares of capital stock (or any options, warrants, rights or other equity
securities or agreements relating to any capital stock), or set apart any sum
for the aforesaid purposes on anything other than an arm's-length basis.
SECTION 6.9 Transactions with Affiliates. Sell or transfer any property
or assets to, or otherwise engage in or permit to exist any other material
transactions with, any of its non-Borrower Affiliates other than in the ordinary
course of the Borrowers' businesses in good faith and at commercially reasonable
prices and on commercially reasonable terms and conditions not
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less favorable to the Borrowers than could be obtained on an arm's-length basis
from a non-Affiliate.
SECTION 6.10 Investments, Loans and Advances. Purchase, hold or acquire
any capital stock, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment in, any other Person (all of the foregoing, "INVESTMENTS"), except
for (i) Permitted Investments, (ii) Intercompany Indebtedness owing from a
Borrower to another Borrower incurred in the ordinary course of business
consistent with past practice, (iii) existing Intercompany Indebtedness,
including, without limitation, Intercompany Indebtedness listed on Schedule 6.10
(which describes all obligations for borrowed money which constitute
Intercompany Indebtedness as of the date hereof), and (iii) additional
Intercompany Indebtedness owed by Foreign Subsidiaries of the Borrowers, or
guaranties of the obligations of Foreign Subsidiaries of the Borrowers, in an
aggregate amount (calculated as the sum of the amount of such additional
Intercompany Indebtedness and the amount of the guarantied obligations) not to
exceed $100,000,000.
SECTION 6.11 Disposition of Assets. Sell or otherwise dispose of any
assets (including, without limitation, the capital stock of any Subsidiary of
the Borrowers) except for (i) sales of inventory, fixtures and equipment in the
ordinary course of business (ii) sales or other dispositions of surplus assets
no longer used in the Borrowers' business operations, and (iii) revocable
non-exclusive licenses of technology in the ordinary course of the Borrowers'
business entered into in good faith and at commercially reasonable prices and on
commercially reasonable terms; provided, however, that none of such licenses
shall adversely affect the Borrowers' operating integrity or limit the
Borrowers' use of such technology in a manner necessary or desirable in the
normal conduct of their businesses.
SECTION 6.12 Nature of Business. Modify or alter in any material manner
the nature and type of its business as conducted at or prior to the Filing Date
or the manner in which such business is conducted (except as required by the
Bankruptcy Code), it being understood that asset sales permitted by Section 6.11
shall not constitute such a material modification or alteration.
SECTION 6.13 Transactions among Borrowers. Except to the extent
existing on the date the Cases were filed and disclosed on Schedule 6.13,
permit, place or agree to permit or place any restrictions on the payment of
dividends or other distributions among the Borrowers or their Subsidiaries or
Affiliates or the making of advances or any other cash payments among the
Borrowers or their Subsidiaries or Affiliates.
SECTION 6.14 Right of Subrogation among Borrowers. Assert any right of
subrogation against any other Borrower until all Borrowings and all Letters of
Credit are paid in full and the Total Commitment is terminated.
SECTION 7. EVENTS OF DEFAULT
SECTION 7.1 Events of Default. In the case of the happening of any of
the following events and the continuance thereof beyond the applicable period of
grace (if any) set forth below (each, an "EVENT OF DEFAULT"):
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(a) any representation or warranty made by any Borrower or the
Guarantor in this Agreement or in any Loan Document or in connection with this
Agreement or the credit extensions hereunder or any statement or representation
made in any report, financial statement, certificate or other document furnished
by any Borrower or the Guarantor to the Lenders under or in connection with this
Agreement, shall prove to have been false or misleading in any material respect
when made or delivered; or
(b) default shall be made in the payment of any (i) fees or
interest on the Loans, principal of the Loans or other amounts payable by the
Borrowers or the Guarantor hereunder (including, without limitation,
reimbursement obligations or cash collateralization in respect of Letters of
Credit), when and as the same shall become due and payable, whether at the due
date thereof (including the Prepayment Date) or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise; or
(c) default shall be made by any Borrower, the Guarantor or
any of their respective Domestic Subsidiaries in the due observance or
performance of any covenants, conditions or agreements contained in Section 6
hereof; or
(d) default shall be made by any Borrower, the Guarantor or
any of their respective Domestic Subsidiaries in the due observance or
performance of any covenant, condition or agreement (other than the covenants,
conditions or agreements contained in Section 6 hereof) to be observed or
performed pursuant to the terms of this Agreement or any of the other Loan
Documents and such default shall continue unremedied for more than twenty (20)
days; or
(e) any of the Cases shall be dismissed or converted to a case
under Chapter 7 of the Bankruptcy Code or any Borrower shall file a motion or
other pleading seeking the dismissal of any of the Cases under Section 1112 of
the Bankruptcy Code or otherwise; a trustee under Chapter 7 or Chapter 11 of the
Bankruptcy Code, a responsible officer or an examiner with enlarged powers
relating to the operation of the business (powers beyond those set forth in
Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the
Bankruptcy Code shall be appointed in any of the Cases and the order appointing
such trustee, responsible officer or examiner shall not be reversed or vacated
within thirty (30) days after the entry thereof; or an application shall be
filed by any Borrower for the approval of any other Superpriority Claim (other
than the Carve-Out) in any of the Cases which is pari passu with or senior to
the claims of the Administrative Agent and the Lenders against any Borrower or
the Guarantor hereunder, or there shall arise or be granted any such pari passu
or senior Superpriority Claim; or
(f) the Bankruptcy Court shall enter an order or orders
granting relief from the automatic stay applicable under Section 362 of the
Bankruptcy Code to the holder or holders of any security interest to permit
foreclosure (or the granting of a deed in lieu of foreclosure or the like) on
any assets of any of the Borrowers or the Guarantor which have a value in excess
of $1,000,000 in the aggregate; or
(g) a Change of Control shall occur; or
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(h) the Borrowers shall fail to deliver a certified Borrowing
Base Certificate when due and such default shall continue unremedied for more
than three (3) Business Days; or
(i) any provision of any Loan Document shall, for any reason,
cease to be valid and binding on any of the Borrowers or the Guarantor, or any
of the Borrowers or the Guarantor shall so assert in any pleading filed in any
court; or
(j) an order of the Bankruptcy Court shall be entered
reversing, amending, supplementing, staying for a period in excess of ten (10)
days, vacating or otherwise modifying either of the Orders; or
(k) any judgment or order as to a post-petition liability or
debt for the payment of money in excess of $1,000,000 shall be rendered against
any of the Borrowers or the Guarantor or any of their Domestic Subsidiaries and
the enforcement thereof shall not have been stayed (by court-ordered stay or by
consent of the party litigants), it being understood that Federal Rule of Civil
Procedure 62(a) provides for a ten-day stay of enforcement of money judgments;
or
(l) any non-monetary judgment or order with respect to a
post-petition event shall be rendered against any Borrower or the Guarantor or
any of their Domestic Subsidiaries which does or would reasonably be expected to
(i) cause a material adverse change in the financial condition, business,
prospects, operations or assets of the Borrowers and the Guarantor and their
Subsidiaries taken as a whole on a consolidated basis, (ii) have a material
adverse effect on the ability of any of the Borrowers or the Guarantor to
perform their respective obligations under any Loan Document, or (iii) have a
material adverse effect on the rights and remedies of the Administrative Agent
or any Lender under any Loan Document, and there shall be any period of ten (10)
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
(m) the Borrowers or the Guarantor shall make any Pre-Petition
Payment other than Pre-Petition Payments authorized by the Bankruptcy Court in
respect of: (i) accrued payroll and related expenses, employee benefits,
workers' compensation, trust fund taxes, customer obligations and insurance
company and related administrator obligations as of the Filing Date, all to be
reasonably acceptable to the Administrative Agent, or (ii) reclamation claims,
materialmen's liens, freight charges and pre-petition claims of Critical Vendors
in an aggregate amount not to exceed $50,000,000 (payments to Critical Vendors
shall be limited to not more than $35,000,000 of the $50,000,000 amount); or
(n) any Termination Event described in clauses (iii) or (iv)
of the definition of such term shall have occurred and shall continue unremedied
for more than ten (10) days and the sum (determined as of the date of occurrence
of such Termination Event) of the Insufficiency of the Plan in respect of which
such Termination Event shall have occurred and be continuing and the
Insufficiency of any and all other Plans with respect to which such a
Termination Event (described in such clauses (iii) or (iv)) shall have occurred
and then exist is equal to or greater than $5,000,000; or
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(o) (i) any Borrower, the Guarantor or any ERISA Affiliate
thereof shall have been notified by the sponsor of a Multiemployer Plan that it
has incurred Withdrawal Liability to such Multiemployer Plan, (ii) such
Borrower, the Guarantor or such ERISA Affiliate does not have reasonable grounds
to contest such Withdrawal Liability and is not in fact contesting such
Withdrawal Liability in a timely and appropriate manner, and (iii) the amount of
such Withdrawal Liability specified in such notice, when aggregated with all
other amounts required to be paid to Multiemployer Plans in connection with
Withdrawal Liabilities (determined as of the date of such notification), exceeds
$500,000 allocable to post-petition obligations or requires payments exceeding
$100,000 per annum in excess of the annual payments made with respect to such
Multiemployer Plans by such Borrower, the Guarantor or such ERISA Affiliate for
the plan year immediately preceding the plan year in which such notification is
received; or
(p) any Borrower, the Guarantor or any ERISA Affiliate thereof
shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of such Borrower, the Guarantor
and their ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the plan years that include
the date hereof by an amount exceeding $1,000,000; or
(q) any Borrower, the Guarantor or any ERISA Affiliate shall
have committed a failure described in Section 302(f)(1) of ERISA (other than the
failure to make any contribution accrued and unpaid as of the Filing Date) and
the amount determined under Section 302(f)(3) of ERISA is equal to or greater
than $1,000,000; or
(r) it shall be determined (whether by the Bankruptcy Court or
by any other judicial or administrative forum) that any Borrower or the
Guarantor is liable for the payment of claims arising out of any failure to
comply (or to have complied) with applicable environmental laws or regulations
the payment of which will have a material adverse effect on the financial
condition, business, properties, operations or assets of the Borrowers and the
Guarantor, taken as a whole, and the enforcement thereof shall not have been
stayed; or
(s) the Guarantor shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code or any other Federal, state or foreign bankruptcy, insolvency,
receivership, liquidation or similar law, (ii) consent to the institution of, or
fail to contravene in a timely and appropriate manner, any such proceeding or
the filing of any such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar official of itself or
of a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against itself in any such proceeding, (v) make
a general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any corporate or other action for the purpose of effecting any of the
foregoing;
(t) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(i) relief in respect of the Guarantor, or of a substantial part of the assets
of the Guarantor, under Title 11 of the United States Code or
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any other Federal, state or foreign bankruptcy, insolvency, receivership,
liquidation or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator or similar official of the Guarantor or of a substantial
part of the assets of the Guarantor or (iii) the winding-up or liquidation of
the Guarantor; and such proceeding or petition shall continue undismissed for
sixty (60) consecutive days or an order or decree approving or ordering any of
the foregoing shall continue unstayed and in effect for sixty (60) consecutive
days;
then, and in every such event and at any time thereafter during the continuance
of such event, and without further order of or application to the Bankruptcy
Court, the Administrative Agent may, and at the request of the Required Lenders,
shall, take one or more of the following actions without further order of or
application to the Court, provided that with respect to item (iv) below and the
enforcement of liens or other remedies with respect to collateral referred to in
item (v) below, the Administrative Agent shall provide the Borrowers (with a
copy to counsel for the Official Creditors' Committee appointed in any of the
Cases and to the United States Trustee for the District of Delaware) with five
(5) business days' prior written notice: (i) terminate forthwith the Total
Commitment; (ii) declare the Loans then outstanding to be forthwith due and
payable, whereupon the principal of the Loans together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrowers
accrued hereunder and under any other Loan Document, shall become forthwith due
and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrowers and the
Guarantor, anything contained herein or in any other Loan Document to the
contrary notwithstanding; (iii) require the Borrowers and the Guarantor upon
demand to forthwith deposit in the Letter of Credit Account cash in an amount
which, together with any amounts then held in the Letter of Credit Account, is
equal to the sum of 105% of the then Letter of Credit Outstandings (and to the
extent the Borrowers shall fail to furnish such funds as demanded by the
Administrative Agent, the Administrative Agent shall be authorized to debit the
accounts of the Borrowers maintained with the Administrative Agent in such
amount five (5) Business Days after the giving of the notice referred to above);
(iv) set-off amounts in the Letter of Credit Account or any other accounts
maintained with the Administrative Agent and apply such amounts to the
obligations of the Borrowers and the Guarantor hereunder and in the other Loan
Documents; and/or (v) exercise any and all remedies under the Loan Documents and
under applicable law available to the Administrative Agent and the Lenders.
SECTION 8. THE ADMINISTRATIVE AGENT
SECTION 8.1 Administration by Administrative Agent. The general
administration of the Loan Documents shall be performed by the Administrative
Agent. Each Lender hereby irrevocably authorizes the Administrative Agent, at
its discretion, to take or refrain from taking such actions as agent on its
behalf and to exercise or refrain from exercising such powers under the Loan
Documents as are delegated by the terms hereof or thereof, as appropriate,
together with all powers reasonably incidental thereto (including the release of
Collateral in connection with any transaction that is expressly permitted by the
Loan Documents). The Administrative Agent shall have no duties or
responsibilities except as set forth in this Agreement and the remaining Loan
Documents.
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SECTION 8.2 Advances and Payments
(a) On the date of each Loan, the Administrative Agent shall
be authorized (but not obligated) to advance, for the account of each of the
Lenders, the amount of the Loan to be made by it in accordance with its
Commitment hereunder. Should the Administrative Agent do so, each of the Lenders
agrees forthwith to reimburse the Administrative Agent in immediately available
funds for the amount so advanced on its behalf by the Administrative Agent,
together with interest at the Federal Funds Effective Rate if not so reimbursed
on the date due from and including such date but not including the date of
reimbursement.
(b) Any amounts received by the Administrative Agent in
connection with this Agreement (other than amounts to which the Administrative
Agent is entitled pursuant to Sections 2.19, 8.6, 10.5 and 10.6), the
application of which is not otherwise provided for in this Agreement, shall be
applied, first, in accordance with each Lender's Commitment Percentage to pay
accrued but unpaid Commitment Fees or Letter of Credit Fees, and second, in
accordance with each Lender's Commitment Percentage to pay accrued but unpaid
interest and the principal balance outstanding and all unreimbursed Letter of
Credit drawings. All amounts to be paid to a Lender by the Administrative Agent
shall be credited to that Lender, after collection by the Administrative Agent,
in immediately available funds either by wire transfer or deposit in that
Lender's correspondent account with the Administrative Agent, as such Lender and
the Administrative Agent shall from time to time agree.
SECTION 8.3 Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrowers, including, but not limited to, a secured claim or other security
or interest arising from, or in lieu of, such secured claim and received by such
Lender under any applicable bankruptcy, insolvency or other similar law, or
otherwise, obtain payment in respect of its Loans as a result of which the
unpaid portion of its Loans is proportionately less than the unpaid portion of
the Loans of any other Lender (a) it shall promptly purchase at par (and shall
be deemed to have thereupon purchased) from such other Lender a participation in
the Loans of such other Lender, so that the aggregate unpaid principal amount of
each Lender's Loans and its participation in Loans of the other Lenders shall be
in the same proportion to the aggregate unpaid principal amount of all Loans
then outstanding as the principal amount of its Loans prior to the obtaining of
such payment was to the principal amount of all Loans outstanding prior to the
obtaining of such payment and (b) such other adjustments shall be made from time
to time as shall be equitable to ensure that the Lenders share such payment
pro-rata, provided that if any such non-pro-rata payment is thereafter recovered
or otherwise set aside such purchase of participations shall be rescinded
(without interest). Each of the Borrowers expressly consents to the foregoing
arrangements and agrees that any Lender holding (or deemed to be holding) a
participation in a Loan may exercise any and all rights of banker's lien, setoff
(in each case, subject to the same notice requirements as pertain to clause (iv)
of the remedial provisions of Section 7.1) or counterclaim with respect to any
and all moneys owing by the Borrowers to such Lender as fully as if such Lender
held a Note and was the original obligee thereon, in the amount of such
participation.
SECTION 8.4 Agreement of Required Lenders. Upon any occasion requiring
or permitting an approval, consent, waiver, election or other action on the part
of the Required Lenders, action shall be taken by the Administrative Agent for
and on behalf or for the benefit of
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all Lenders upon the direction of the Required Lenders, and any such action
shall be binding on all Lenders. No amendment, modification, consent, or waiver
shall be effective except in accordance with the provisions of Section 10.10.
SECTION 8.5 Liability of Administrative Agent.
(a) The Administrative Agent, when acting on behalf of the
Lenders, may execute any of its respective duties under this Agreement by or
through any of its respective officers, agents, and employees, and neither the
Administrative Agent nor its directors, officers, agents, employees or
Affiliates shall be liable to the Lenders or any of them for any action taken or
omitted to be taken in good faith, or be responsible to the Lenders or to any of
them for the consequences of any oversight or error of judgment, or for any
loss, unless the same shall happen through its gross negligence or willful
misconduct. The Administrative Agent and its respective directors, officers,
agents, employees and Affiliates shall in no event be liable to the Lenders or
to any of them for any action taken or omitted to be taken by them pursuant to
instructions received by them from the Required Lenders or in reliance upon the
advice of counsel selected by it. Without limiting the foregoing, neither the
Administrative Agent, nor any of its respective directors, officers, employees,
agents or Affiliates shall be responsible to any Lender for the due execution,
validity, genuineness, effectiveness, sufficiency, or enforceability of, or for
any statement, warranty, or representation in, this Agreement, any Loan Document
or any related agreement, document or order, or shall be required to ascertain
or to make any inquiry concerning the performance or observance by the Borrowers
or the Guarantor of any of the terms, conditions, covenants, or agreements of
this Agreement or any of the Loan Documents.
(b) Neither the Administrative Agent nor any of its respective
directors, officers, employees, agents or Affiliates shall have any
responsibility to the Borrowers on account of the failure or delay in
performance or breach by any Lender or by the Borrowers or the Guarantor of any
of their obligations under this Agreement or any of the Loan Documents or in
connection herewith or therewith.
(c) The Administrative Agent, in its capacity as
Administrative Agent hereunder, shall be entitled to rely on any communication,
instrument, or document reasonably believed by such person to be genuine or
correct and to have been signed or sent by a person or persons believed by such
person to be the proper person or persons, and such person shall be entitled to
rely on advice of legal counsel, independent public accountants, and other
professional advisers and experts selected by such person.
SECTION 8.6 Reimbursement and Indemnification. Each Lender agrees (i)
to reimburse (x) the Administrative Agent for such Lender's Commitment
Percentage of any expenses and fees incurred for the benefit of the Lenders
under this Agreement and any of the Loan Documents, including, without
limitation, counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, and any other expense incurred in
connection with the operations or enforcement thereof not reimbursed by the
Borrowers or the Guarantor and (y) the Administrative Agent for such Lender's
Commitment Percentage of any expenses of the Administrative Agent incurred for
the benefit of the Lenders that the Borrowers and/or the Guarantor have agreed
to reimburse pursuant to Section 10.5 and has failed to so reimburse and (ii) to
indemnify and hold harmless the Administrative Agent and any of its
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directors, officers, employees, agents or Affiliates, on demand, in the amount
of its proportionate share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against it or any of them in any way relating to or
arising out of this Agreement or any of the Loan Documents or any action taken
or omitted by it or any of them under this Agreement or any of the Loan
Documents to the extent not reimbursed by the Borrowers or the Guarantor (except
such as shall result from their respective gross negligence or willful
misconduct).
SECTION 8.7 Rights of Administrative Agent. It is understood and agreed
that Chase shall have the same rights and powers hereunder (including the right
to give such instructions) as the other Lenders and may exercise such rights and
powers, as well as its rights and powers under other agreements and instruments
to which it is or may be party, and engage in other transactions with any
Borrower or the Guarantor, as though it were not the Administrative Agent of the
Lenders under this Agreement.
SECTION 8.8 Independent Lenders. Each Lender acknowledges that it has
decided to enter into this Agreement and to make the Loans hereunder based on
its own analysis of the transactions contemplated hereby and of the
creditworthiness of the Borrowers and the Guarantor and agrees that the
Administrative Agent shall bear no responsibility therefor.
SECTION 8.9 Notice of Transfer. The Administrative Agent may deem and
treat a Lender party to this Agreement as the owner of such Lender's portion of
the Loans for all purposes, unless and until a written notice of the assignment
or transfer thereof executed by such Lender shall have been received by the
Administrative Agent.
SECTION 8.10 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent, which shall be reasonably
satisfactory to the Borrowers. If no successor Administrative Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment, within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation, the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be
a commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of a least
$100,000,000, which shall be reasonably satisfactory to the Borrowers. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Section 8 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.
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SECTION 9. GUARANTY
SECTION 9.1 Guaranty
(a) The Guarantor unconditionally and irrevocably guarantees
the due and punctual payment and performance by the Borrowers of the
Obligations. The Guarantor further agrees that the Obligations may be extended
or renewed, in whole or in part, without notice to or further assent from it,
and it will remain bound upon this guaranty notwithstanding any extension or
renewal of any of the Obligations.
(b) The Guarantor waives presentation to, demand for payment
from and protest to the Borrowers or the Guarantor, and also waives notice of
protest for nonpayment. The Obligations of the Guarantor hereunder shall not be
affected by (i) the failure of the Administrative Agent or a Lender to assert
any claim or demand or to enforce any right or remedy against the Borrowers or
any other guarantor of the Obligations under the provisions of this Agreement or
any other Loan Document or otherwise; (ii) any extension or renewal of any
provision hereof or thereof; (iii) any rescission, waiver, compromise,
acceleration, amendment or modification of any of the terms or provisions of any
of the Loan Documents; (iv) the release, exchange, waiver or foreclosure of any
security held by the Administrative Agent for the Obligations or any of them;
(v) the failure of the Administrative Agent or a Lender to exercise any right or
remedy against any other guarantor of the Obligations; or (vi) the release or
substitution of any other guarantor of the Obligations.
(c) The Guarantor further agrees that this guaranty
constitutes a guaranty of performance and of payment when due and not just of
collection, and waives any right to require that any resort be had by the
Administrative Agent or a Lender to any security held for payment of the
Obligations or to any balance of any deposit, account or credit on the books of
the Administrative Agent or a Lender in favor of any Borrower or the Guarantor,
or to any other Person.
(d) The Guarantor hereby waives any defense that it might have
based on a failure to remain informed of the financial condition of the
Borrowers and of the Guarantor and any circumstances affecting the ability of
the Borrowers to perform under this Agreement.
(e) The Guarantor's guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Obligations or any
other instrument evidencing any Obligations, or by the existence, validity,
enforceability, perfection, or extent of any collateral therefor or by any other
circumstance relating to the Obligations which might otherwise constitute a
defense to this Guaranty. Neither of the Administrative Agent, nor any of the
Lenders makes any representation or warranty in respect to any such
circumstances or shall have any duty or responsibility whatsoever to the
Guarantor in respect of the management and maintenance of the Obligations.
(f) Subject to the provisions of Section 7.1, upon the
Obligations becoming due and payable (by acceleration or otherwise), the Lenders
shall be entitled to immediate payment of such Obligations by the Guarantor upon
written demand by the Administrative Agent, without further application to or
order of the Bankruptcy Court.
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SECTION 9.2 No Impairment of Guaranty. The obligations of the Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations. Without
limiting the generality of the foregoing, the obligations of the Guarantor
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Administrative Agent or a Lender to assert any claim or demand or
to enforce any remedy under this Agreement or any other agreement, by any waiver
or modification of any provision thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of the Guarantor or would otherwise
operate as a discharge of the Guarantor as a matter of law, unless and until the
Obligations are paid in full.
SECTION 9.3 Subrogation. Upon payment by the Guarantor of any sums to
the Administrative Agent or a Lender hereunder, all rights of the Guarantor
against any Borrower arising as a result thereof by way of right of subrogation
or otherwise, shall in all respects be subordinate and junior in right of
payment to the prior final and indefeasible payment in full of all the
Obligations. If any amount shall be paid to the Guarantor for the account of any
Borrower, such amount shall be held in trust for the benefit of the
Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent and the Lenders to be credited and applied to the
Obligations, whether matured or unmatured.
SECTION 10. MISCELLANEOUS
SECTION 10.1 Notices. Notices and other communications provided for
herein shall be in writing (including telegraphic, telex, facsimile or cable
communication) and shall be mailed, telegraphed, telexed, transmitted, cabled or
delivered to any Borrower or the Guarantor at c/o
USG Corporation, 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attn.: Corporate Treasurer, Telecopier
No. (000) 000-0000, with a copy to Xxxxxx X. Xxxxxx, Esq., Xxxxx, Day, Xxxxxx &
Xxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Telecopier No.
(000) 000-0000, and to a Lender or the Administrative Agent to it at its address
set forth on Annex A, or such other address as such party may from time to time
designate by giving written notice to the other parties hereunder. All notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the fifth
Business Day after the date when sent by registered or certified mail, postage
prepaid, return receipt requested, if by mail; or when delivered to the
telegraph company, charges prepaid, if by telegram; or when receipt is
acknowledged, if by any telegraphic communications or facsimile equipment of the
sender; in each case addressed to such party as provided in this Section 10.1 or
in accordance with the latest unrevoked written direction from such party;
provided, however, that in the case of notices to the Administrative Agent
notices pursuant to the preceding sentence with respect to change of address and
pursuant to Section 2 shall be effective only when received by the
Administrative Agent.
SECTION 10.2 Survival of Agreement, Representations and Warranties,
etc. All warranties, representations and covenants made by any Borrower or the
Guarantor herein or in any certificate or other instrument delivered by it or on
its behalf in connection with this
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Agreement shall be considered to have been relied upon by the Lenders and shall
survive the making of the Loans herein contemplated regardless of any
investigation made by any Lender or on its behalf and shall continue in full
force and effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitments have not been terminated.
All statements in any such certificate or other instrument shall constitute
representations and warranties by the Borrowers and the Guarantor hereunder with
respect to the Borrowers.
SECTION 10.3 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrowers, the Guarantor, the Administrative Agent and the
Lenders and their respective successors and assigns. Neither the Borrowers nor
the Guarantor may assign or transfer any of their rights or obligations
hereunder without the prior written consent of all of the Lenders. Each Lender
may sell participations to any Person in all or part of any Loan, or all or part
of its Commitment, in which event, without limiting the foregoing, the
provisions of Section 2.15 shall inure to the benefit of each purchaser of a
participation (provided that such participant shall look solely to the seller of
such participation for such benefits and the Borrowers' and the Guarantor's
liability, if any, under Sections 2.15 and 2.18 shall not be increased as a
result of the sale of any such participation) and the pro rata treatment of
payments, as described in Section 2.17, shall be determined as if such Lender
had not sold such participation. In the event any Lender shall sell any
participation, such Lender shall retain the sole right and responsibility to
enforce the obligations of each of the Borrowers relating to the Loans,
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement (provided that such Lender may
grant its participant the right to consent to such Lender's execution of
amendments, modifications or waivers which (i) reduce any Fees payable hereunder
to the Lenders, (ii) reduce the amount of any scheduled principal payment on any
Loan or reduce the principal amount of any Loan or the rate of interest payable
hereunder or (iii) extend the maturity of the Borrowers' obligations hereunder).
The sale of any such participation shall not alter the rights and obligations of
the Lender selling such participation hereunder with respect to the Borrowers.
(b) Each Lender may assign to one or more Lenders or Eligible
Assignees all or a portion of its interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment and
the same portion of the related Loans at the time owing to it), provided,
however, that (i) other than in the case of an assignment to a Person at least
50% owned by the assignor Lender, or by a common parent of both, or to another
Lender, the Administrative Agent and the Fronting Bank must give their
respective prior written consent to such assignment, which consent will not be
unreasonably withheld, (ii) the aggregate amount of the Commitment and/or Loans
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall, unless otherwise agreed to in writing by the
Borrowers and the Administrative Agent, in no event be less than $5,000,000 or
the remaining portion of such Lender's Commitment and/or Loans, if less and
(iii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register (as
defined below), an Assignment and Acceptance with blanks appropriately
completed, together with a processing and recordation fee of $3,500 (for which
the
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Borrowers shall have no liability). Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be within ten (10) Business Days
after the execution thereof (unless otherwise agreed to in writing by the
Administrative Agent), (A) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (B) the Lender thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(c) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such Lender
assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any of the other Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any of the other Loan Documents; (ii) such Lender assignor
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrowers or the Guarantor or the performance
or observance by the Borrowers or the Guarantor of any of its obligations under
this Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement and the other Loan Documents, together with
copies of the financial statements referred to in Section 3.4 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative Agent,
such Lender assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms thereto, together with such
powers as are reasonably incidental hereof; and (vi) such assignee agrees that
it will perform in accordance with their terms all obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at its office 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
"REGISTER"). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Guarantor, the Administrative Agent and
the Lenders shall treat each Person the name of which is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
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(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and the assignee thereunder together with the fee payable
in respect thereto, the Administrative Agent shall, if such Assignment and
Acceptance has been completed with blanks appropriately filled and consented to
by the Administrative Agent and the Fronting Bank (to the extent such consent is
required hereunder), (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt written
notice thereof to the Borrowers (together with a copy thereof). No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.3, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers or the Guarantor
furnished to such Lender by or on behalf of any of the Borrowers or the
Guarantor; provided that prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall agree in writing to be
bound by the provisions of Section 10.4.
(g) Each of the Borrowers hereby agrees to actively assist and
cooperate with the Administrative Agent in the Administrative Agent's efforts to
sell participations herein (as described in Section 10.3(a)) and assign to one
or more Lenders or Eligible Assignees a portion of its interests, rights and
obligations under this Agreement (as set forth in Section 10.3(b)).
SECTION 10.4 Confidentiality. Each Lender agrees to keep any
information delivered or made available by any of the Borrowers or the Guarantor
to it confidential from anyone other than persons employed or retained by such
Lender who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided that nothing herein shall
prevent any Lender from disclosing such information (i) to any of its Affiliates
or to any other Lender, provided such Affiliate agrees to keep such information
confidential to the same extent required by the Lenders hereunder, (ii) upon the
order of any court or administrative agency, (iii) upon the request or demand of
any regulatory agency or authority, (iv) which has been publicly disclosed other
than as a result of a disclosure by the Administrative Agent or any Lender which
is not permitted by this Agreement, (v) in connection with any litigation to
which the Administrative Agent, any Lender, or their respective Affiliates may
be a party to the extent reasonably required, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (vii) to such
Lender's legal counsel and independent auditors, and (viii) to any actual or
proposed participant or assignee of all or part of its rights hereunder subject
to the proviso in Section 10.3(f). Each Lender shall notify the Borrowers or the
Guarantor, as the case may be, of any required disclosure under clause (ii) of
this Section; provided, however, that the failure of any such Lender to provide
such notification shall not limit, alter or otherwise affect any of the
Borrowers' or the Guarantor's obligations under this Agreement.
SECTION 10.5 Expenses. Whether or not the transactions hereby
contemplated shall be consummated, the Borrowers and the Guarantor agree to pay
all reasonable expenses incurred by the Administrative Agent and X.X. Xxxxxx
Securities Inc. (including, without limitation, the reasonable fees and
disbursements of Xxxxx Xxxx LLP, counsel for the Administrative Agent, any other
counsel that the Administrative Agent shall retain and any internal or
third-party appraisers, consultants and auditors advising the Administrative
Agent and X.X. Xxxxxx
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Securities Inc. and their counsel) in connection with the preparation,
execution, delivery and administration of this Agreement and the other Loan
Documents, the making of the Loans and the issuance of the Letters of Credit,
the perfection of the Liens contemplated hereby, the syndication of the
transactions contemplated hereby, the costs, fees and expenses of the
Administrative Agent and X.X. Xxxxxx Securities Inc. in connection with monthly
and other periodic field audits, monitoring of assets (including reasonable and
customary internal collateral monitoring fees) and publicity expenses, and,
following the occurrence of an Event of Default, all expenses incurred by the
Lenders and the Administrative Agent in the enforcement or protection of the
rights of any one or more of the Lenders or the Administrative Agent in
connection with this Agreement or the other Loan Documents, including but not
limited to the fees and disbursements of any counsel for the Lenders or the
Administrative Agent. Such payments by the Borrowers and the Guarantor shall be
made upon delivery of a statement setting forth such costs and expenses. Whether
or not the transactions hereby contemplated shall be consummated, the Borrowers
and the Guarantor agree to reimburse the Administrative Agent and X.X. Xxxxxx
Securities Inc. for the expenses set forth in the Commitment Letter and the
reimbursement provisions thereof are hereby incorporated herein by reference.
The obligations of the Borrowers and the Guarantor under this Section shall
survive the termination of this Agreement and/or the payment of the Loans.
SECTION 10.6 Indemnity. Each of the Borrowers and the Guarantor agrees
to indemnify and hold harmless the Administrative Agent, X.X. Xxxxxx Securities
Inc. and the Lenders and their directors, officers, employees, agents and
Affiliates (each an "INDEMNIFIED PARTY") from and against any and all expenses,
losses, claims, damages and liabilities incurred by such Indemnified Party
arising out of claims made by any Person in any way relating to the transactions
contemplated hereby, but excluding therefrom all expenses, losses, claims,
damages, and liabilities to the extent that they are determined by the final
judgment of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnified Party. The obligations of
the Borrowers and the Guarantor under this Section shall survive the termination
of this Agreement and/or the payment of the Loans.
SECTION 10.7 Choice of Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY
WITHIN SUCH STATE AND THE BANKRUPTCY CODE.
SECTION 10.8 No Waiver. No failure on the part of the Administrative
Agent or any of the Lenders to exercise, and no delay in exercising, any right,
power or remedy hereunder or any of the other Loan Documents shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. All remedies hereunder are cumulative and
are not exclusive of any other remedies provided by law.
SECTION 10.9 Extension of Maturity. Should any payment of principal of
or interest or any other amount due hereunder become due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, in the case of principal, interest shall be payable
thereon at the rate herein specified during such extension.
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SECTION 10.10 Amendments, etc.
(a) No modification, amendment or waiver of any provision of
this Agreement or the Security and Pledge Agreement, and no consent to any
departure by the Borrowers or the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given; provided, however, that no such
modification or amendment shall without the written consent of the Lender
affected thereby (x) increase the Commitment of a Lender (it being understood
that a waiver of an Event of Default shall not constitute an increase in the
Commitment of a Lender), or (y) reduce the principal amount of any Loan or the
rate of interest payable thereon, or extend any date for the payment of interest
hereunder or reduce any Fees payable hereunder or extend the final maturity of
the Borrowers' obligations hereunder (except as contemplated by Section 2.2(d),
as to which no consent shall be required); and, provided, further, that no such
modification or amendment shall without the written consent of (A) all of the
Lenders (i) amend or modify any provision of this Agreement which provides for
the unanimous consent or approval of the Lenders, (ii) amend this Section 10.10
or the definition of Required Lenders or (iii) amend or modify the Superpriority
Claim status of the Lenders contemplated by Section 2.23 or (B) the
Super-Majority Lenders (i) release any material portion of the Collateral from
the Liens created under the Security and Pledge Agreement, (ii) release the
Guarantor or (iii) alter the eligibility standards used in determining the
Borrowing Base in a manner which would increase the amount of the Borrowing
Base. No such amendment or modification may adversely affect the rights and
obligations of the Administrative Agent or any Fronting Bank hereunder or any
Lender in the capacity referred to in Section 6.3(v) without its prior written
consent. No notice to or demand on any Borrower or the Guarantor shall entitle
any Borrower or the Guarantor to any other or further notice or demand in the
same, similar or other circumstances. Each assignee under Section 10.3(b) shall
be bound by any amendment, modification, waiver, or consent authorized as
provided herein, and any consent by a Lender shall bind any Person subsequently
acquiring an interest on the Loans held by such Lender. No amendment to this
Agreement shall be effective against any Borrower or the Guarantor unless signed
by such Borrower or the Guarantor, as the case may be.
(b) Notwithstanding anything to the contrary contained in
Section 10.10(a), in the event that any Borrower requests that this Agreement be
modified or amended in a manner which would require the unanimous consent of all
of the Lenders (or the consent described in clause (B) of the first sentence of
Section 10.10(a)) and such modification or amendment is agreed to by the
Super-majority Lenders (as hereinafter defined), then with the consent of the
Borrowers and the Super-majority Lenders, the Borrowers and the Super-majority
Lenders shall be permitted to amend the Agreement without the consent of the
Lender or Lenders which did not agree to the modification or amendment requested
by such Borrower (such Lender or Lenders, collectively the "MINORITY LENDERS")
to provide for (w) the termination of the Commitment of each of the Minority
Lenders, (x) the addition to this Agreement of one or more other financial
institutions (each of which shall be an Eligible Assignee), or an increase in
the Commitment of one or more of the Super-majority Lenders, so that the Total
Commitment after giving effect to such amendment shall be in the same amount as
the Total Commitment immediately before giving effect to such amendment, (y) if
any Loans are outstanding at the time of such amendment, the making of such
additional Loans by such new financial institutions or
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Super-majority Lender or Lenders, as the case may be, as may be necessary to
repay in full the outstanding Loans of the Minority Lenders immediately before
giving effect to such amendment and (z) such other modifications to this
Agreement as may be appropriate. As used herein, the term "SUPER-MAJORITY
LENDERS" shall mean, at any time, Lenders holding Loans representing at least
66-2/3% of the aggregate principal amount of the Loans outstanding, or if no
Loans are outstanding, Lenders having Commitments representing at least 66-2/3%
of the Total Commitment.
SECTION 10.11 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.12 Headings. Section headings used herein are for
convenience only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
SECTION 10.13 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall constitute an original, but
all of which taken together shall constitute one and the same instrument.
SECTION 10.14 Prior Agreements. This Agreement represents the entire
agreement of the parties with regard to the subject matter hereof and the terms
of any letters and other documentation entered into between any Borrower or the
Guarantor and any Lender or the Administrative Agent prior to the execution of
this Agreement which relate to Loans to be made hereunder shall be replaced by
the terms of this Agreement (except as otherwise expressly provided herein with
respect to the Commitment Letter and the fee letter referred to therein,
including without limitation the Borrowers' and the Guarantor's agreement to
actively assist the Administrative Agent in the syndication of the transactions
contemplated hereby referred to in Section 10.3(g) and including also the
provisions of Section 2.19).
SECTION 10.15 Further Assurances. Whenever and so often as reasonably
requested by the Administrative Agent, the Borrowers and the Guarantor will
promptly execute and deliver or cause to be executed and delivered all such
other and further instruments, documents or assurances, and promptly do or cause
to be done all such other and further things as may be necessary and reasonably
required in order to further and more fully vest in the Administrative Agent all
rights, interests, powers, benefits, privileges and advantages conferred or
intended to be conferred by this Agreement and the other Loan Documents.
SECTION 10.16 Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
SECTION 10.17 Foreign Subsidiaries Notwithstanding any provision of any
Loan Document to the contrary, (i) no more than 66% of the capital stock in or
of any Subsidiary of any Borrower or the Guarantor, which Subsidiary is
incorporated under the laws of a jurisdiction
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outside the United States and which is a "controlled foreign corporation" within
the meaning of Section 957(a) of the Code (each, a "FOREIGN SUBSIDIARY"), shall
be pledged or similarly hypothecated to guaranty or support any Obligations of
any Borrower or the Guarantor, (ii) no Foreign Subsidiary shall guaranty or
support any Obligation of any Borrower or the Guarantor, and (iii) no security
or similar interest shall be granted in the assets of any Foreign Subsidiary,
which security or similar interest guarantees or supports any Obligation of any
Borrower or the Guarantor. The parties agree that any pledge, guaranty or
security or similar interest made or granted in contravention of this Section
10.17 shall be void ab initio. Neither the Borrowers nor the Guarantor (x) make
any Investments in their Foreign Subsidiaries except as permitted hereunder or
(y) transfer any assets or the proceeds of any Loans to any jurisdiction outside
of the United States of America except as permitted hereunder.
SECTION 10.18 Subordination of Intercompany Indebtedness. Each of the
Borrowers and the Guarantor agree that any and all Intercompany Indebtedness
owed to any Borrower or the Guarantor shall be subordinate and subject in right
of payment to the prior payment, in full and in cash, of all Obligations.
Notwithstanding any right of any Borrower and the Guarantor to ask, demand, xxx
for, take or receive any payment in respect of any Intercompany Indebtedness
owed to any Borrower or the Guarantor, any and all rights, liens and security
interests of any Borrower and the Guarantor, whether now or hereafter arising
and howsoever existing, in any assets of any other Subsidiary of Parent (whether
constituting part of Collateral given to the Administrative Agent for the
benefit of the Lenders to secure payment of all or any part of the Obligations
or otherwise) shall be and are subordinated to the rights of the Administrative
Agent and the Lenders in those assets. No Borrower or the Guarantor shall have
any right to possession of any such asset or to foreclose upon any such asset,
whether by judicial action or otherwise, unless and until all of the Obligations
(other than contingent indemnity obligations) shall have been fully paid and
satisfied and all financing arrangements among the Borrowers, the Guarantor and
the Lenders have been terminated. So long as any Event of Default shall have
occurred and be continuing, then, any payment or distribution of any kind or
character, either in cash, securities or other property, which shall be payable
or deliverable upon or with respect to any Intercompany Indebtedness owed by any
Borrower or the Guarantor shall be paid or delivered directly to the
Administrative Agent for application on any of the Obligations, due or to become
due, until such Obligations (other than contingent indemnity obligations) shall
have first been fully paid and satisfied. Each of the Borrowers and the
Guarantor irrevocably authorize and empower the Administrative Agent to demand,
xxx for, collect and receive every such payment or distribution and give
acquittance therefor and to make and present for and on behalf of any Borrower
or the Guarantor (as applicable) such proofs of claim and take such other
action, in the Administrative Agent's own name or in the name of the applicable
Borrower and/or the Guarantor (as applicable) or otherwise, as the
Administrative Agent may deem necessary or advisable for the enforcement of this
Section 10.18; provided, that the Administrative Agent agrees not to exercise
such powers unless an Event of Default shall have occurred and be continuing.
The Administrative Agent may vote such proofs of claim in any such proceeding,
receive and collect any and all dividends or other payments or disbursements
made thereon in whatever form the same may be paid or issued and apply the same
on account of any of the Obligations. Should any payment, distribution, security
or instrument or proceeds thereof be received by any Borrower or the Guarantor
upon or with respect to the Intercompany Indebtedness at any time an Event of
Default shall have occurred and be continuing and prior to the satisfaction of
all of the Obligations and the termination of all financing arrangements among
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the Borrowers, the Guarantor and the Lenders, the applicable Borrower and/or the
Guarantor (as applicable) shall receive and hold the same in trust, as trustee,
for the benefit of the Lenders and shall so long as any Event of Default shall
have occurred and be continuing promptly deliver the same to the Administrative
Agent, for the benefit of the Lenders, in precisely the form received (except
for the endorsement or assignment of the applicable Borrower and/or the
Guarantor where necessary), for application to any of the Obligations, due or
not due, and, until so delivered, the same shall be held in trust by the
applicable Borrower and/or the Guarantor as the property of the Lenders. If any
Borrower or the Guarantor (as applicable) fails to make any such endorsement or
assignment to the Administrative Agent, the Administrative Agent or any of its
officers or employees are irrevocably authorized to make the same. So long as
any Event of Default shall have occurred and be continuing, the Borrowers and
the Guarantor agree that until the Obligations have been paid in full (in cash)
and satisfied and all financing arrangements among the Borrowers, the Guarantor
and the Lenders have been terminated, neither the Borrowers nor the Guarantor
will not assign or transfer to any Person (other than the Administrative Agent)
any claim the Borrowers or the Guarantor has or may have against any other
Subsidiary of Parent.
SECTION 10.19 Certain Post Closing Matters. Notwithstanding anything to
the contrary contained in this Agreement, within sixty (60) days after the
Closing Date, the Borrowers shall deliver to the Administrative Agent:
(a) to the extent applicable, a copy, certified as of a recent
date by the applicable Governmental Authority, of each Organizational
Document delivered pursuant to Section 4.1(a)(i) of this Agreement
which was certified by a Secretary or Assistant Secretary of the
Borrowers or the Guarantor;
(b) all good standing certificates, if any, which the
Borrowers and the Guarantor were required to deliver pursuant to
Section 4.1(a)(iv) of this Agreement and delivery of which was
temporarily waived by the Lenders for the purposes of effecting the
closing on the Closing Date;
(c) all UCC-11 searches, if any, which the Borrowers and the
Guarantor were required to deliver pursuant to Section 4.1(l) of this
Agreement and delivery of which was temporarily waived by the Lenders
for the purposes of effecting the closing on the Closing Date;
(d) as pledgee, share certificates representing 66% of the
capital stock of each of the Foreign Subsidiaries, together with
executed and undated stock powers related thereto; and
(e) agreements establishing the Administrative Agent's
dominion and control over the Borrowers' lockbox-related deposit
accounts located at SunTrust, Northern Trust Company and Xxxxxx Trust &
Savings Bank.
All conditions precedent and representations contained in this Agreement shall
be deemed modified to the extent necessary to effect the foregoing (and to
permit the taking of the actions
167
described above within the time periods required above); provided, that to the
extent any representation and warranty would not be true because the foregoing
actions were not taken on the Closing Date, the respective representation and
warranty shall be required to be true and correct at the time the respective
action is taken in accordance with the foregoing provisions of this Section
10.19. The acceptance of the benefits of the making of each Loan and the
issuance of each Letter of Credit shall constitute a representation, warranty
and covenant by the Borrowers to each of the Lenders that the actions required
pursuant to this Section 10.19 will be taken within the relevant time periods
referred to in this Section 10.19 and that, at such time, all representations
and warranties contained in this Agreement shall then be true and correct
without any modification pursuant to this Section 10.19.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
168
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and the year first written.
BORROWERS:
USG CORPORATION
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
UNITED STATES GYPSUM COMPANY
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
USG INTERIORS, INC.
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
L&W SUPPLY CORPORATION
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
USG INTERIORS INTERNATIONAL, INC
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
LA MIRADA PRODUCTS CO., INC.
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
169
BEADEX MANUFACTURING, LLC
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
B-R PIPELINE COMPANY
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
USG INDUSTRIES, INC.
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
USG PIPELINE COMPANY
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
STOCKING SPECIALISTS, INC.
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
USG FOREIGN INVESTMENTS, LTD.
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
170
LENDERS:
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
171
ANNEX A TO THE
REVOLVING
CREDIT AND GUARANTY AGREEMENT
COMMITMENT AMOUNTS
Dated as of June 25, 2001
COMMITMENT COMMITMENT
BANK AMOUNT PERCENTAGE
The Chase Manhattan Bank $350,000,000 100.0000%
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Total $350,000,000 100.0000%
---------------------------------------------------------------------------
172
EXHIBIT A-1 TO THE
REVOLVING
CREDIT AND GUARANTY AGREEMENT
FORM OF INTERIM ORDER
173
EXHIBIT A-2 TO THE
REVOLVING
CREDIT AND GUARANTY AGREEMENT
FORM OF FINAL ORDER
174
EXHIBIT B TO THE
REVOLVING
CREDIT AND GUARANTY AGREEMENT
FORM OF SECURITY AND PLEDGE AGREEMENT
175
EXHIBIT C TO THE
REVOLVING
CREDIT AND GUARANTY AGREEMENT
FORM OF OPINION OF COUNSEL
176
EXHIBIT D TO THE
REVOLVING
CREDIT AND GUARANTY AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
DATED: _____________, 200_
Reference is made to the Revolving Credit and Guaranty Agreement, dated
as of June 25, 2001 (as restated, amended, modified, supplemented and in effect
from time to time, the "Credit Agreement"), among
USG Corporation and each of
its Subsidiaries party thereto, each a debtor and debtor-in-possession under
Chapter 11 of the Bankruptcy Code (collectively, the "Borrowers"), USG Foreign
Investments, Ltd., (the "Guarantor") and The Chase Manhattan Bank, as agent (in
such capacity, the "Administrative Agent") for the lenders (the "Lenders") party
to the Credit Agreement. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement. This
Assignment and Acceptance between the Assignor (as set forth on Schedule I
hereto and made a part hereof) and the Assignee (as set forth on Schedule I
hereto and made a part hereof) is dated as of the Effective Date (as set forth
on Schedule I hereto and made a part hereof).
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date, an undivided interest (the "Assigned Interest") in and to all
the Assignor's rights and obligations under the Credit Agreement in a principal
amount as set forth on Schedule I.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other of the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other of the Loan Documents or
any other instrument or document furnished pursuant thereto, other than that it
is the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers or the Guarantor or the performance or
observance by the Borrowers or the Guarantor of any of their respective
obligations under the Credit Agreement, any of the other Loan Documents or any
other instrument or document furnished pursuant thereto; and (iii) requests that
the Administrative Agent evidence the Assigned Interest by recording the
information contained on Schedule I in the Register which reflects the
assignment being made hereby (and after giving effect to any other assignments
which have become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance and that it is an
Eligible Assignee; (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.1 thereof, and such other documents and
information as it has deemed appropriate to make its own credit analysis; (iii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
177
own credit decisions in taking or not taking action under the Credit Agreement;
(iv) appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement and
the other Loan Documents as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(v) agrees that it will be bound by the provisions of the Credit Agreement and
will perform in accordance with its terms all the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Lender; (vi) if
the Assignee is organized under the laws of a jurisdiction outside the United
States, attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement or such other documents as are necessary to indicate that
all such payments are subject to such tax at a rate reduced by an applicable tax
treaty; and (vii) has supplied the information requested on the administrative
questionnaire heretofore supplied by the Administrative Agent.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent, together with a processing and
recordation fee of $3,500, for acceptance by it and recording by the
Administrative Agent pursuant to Section 10.3 of the Credit Agreement, effective
as of the Effective Date (which Effective Date shall, unless otherwise agreed to
by the Administrative Agent, be within ten Business Days after the execution of
this Assignment and Acceptance).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee, whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and
Assignee shall make all appropriate adjustments in payments for periods prior to
the Effective Date by the Administrative Agent or with respect to the making of
this assignment directly between themselves.
6. From and after the Effective Date, (i) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder, and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement provided that Assignor hereby represents and warrants that the
restrictions set forth in Section 10.3 of the Credit Agreement pertaining to the
minimum amount of assignments have been satisfied.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective duly authorized officers on
Schedule I hereto.
178
Schedule I to Assignment and Acceptance
Respecting the Revolving Credit and Guaranty Agreement,
dated as of June 25, 2001, among
USG Corporation. and its Subsidiaries party thereto,
USG Foreign Investments, Ltd.,
the Lenders named therein, and
The Chase Manhattan Bank, as Administrative Agent
Legal Name of Assignor:
Legal Name of Assignee:
Effective Date of Assignment:
Principal Percentage Assigned (to at least 8 decimals)
Amount shown as a percentage of aggregate
Assigned principal amount of all Lenders
--------- --------------------------------------------
$ %
-------- ------
CONSENTED TO AND ACCEPTED:
,
THE CHASE MANHATTAN BANK, -------------------------------------
as Administrative Agent as Assignor
By By
------------------------------ -----------------------------------
Name: Name:
Title: Title:
, ,
-------------------------------- -------------------------------------
as Fronting Bank as Assignee
By By
------------------------------ -----------------------------------
Name: Name:
Title: Title:
179
SCHEDULE 3.5 TO THE
REVOLVING CREDIT AND GUARANTY AGREEMENT
SUBSIDIARIES
[TO BE SATISFACTORY TO THE ADMINISTRATIVE AGENT]
180
SCHEDULE 3.6 TO THE
REVOLVING CREDIT AND GUARANTY AGREEMENT
LIENS
[TO BE SATISFACTORY TO THE ADMINISTRATIVE AGENT]
181
SCHEDULE 3.12 TO THE
REVOLVING CREDIT AND GUARANTY AGREEMENT
INTELLECTUAL PROPERTY
[TO BE SATISFACTORY TO THE ADMINISTRATIVE AGENT]
182
SCHEDULE 6.10 TO THE
REVOLVING CREDIT AND GUARANTY AGREEMENT
INTERCOMPANY INDEBTEDNESS
[TO BE SATISFACTORY TO THE ADMINISTRATIVE AGENT]
183
SCHEDULE 6.13 TO THE
REVOLVING CREDIT AND GUARANTY AGREEMENT
BORROWER TRANSACTION RESTRICTIONS
[TO BE SATISFACTORY TO THE ADMINISTRATIVE AGENT]
184
