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EXHIBIT 10.33
EXECUTION COPY
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
October 30, 1997
among
CHICAGO MINIATURE LAMP, INC.,
ITS DOMESTIC SUBSIDIARIES,
THE GUARANTORS PARTY HERETO,
THE SPECIAL CREDIT PARTIES PARTY HERETO,
THE LENDERS PARTY HERETO,
ABN AMRO BANK N.V.,
CORESTATES BANK, N.A.,
and
FIRST UNION NATIONAL BANK
as Co-Agents,
FLEET NATIONAL BANK as Manager
and
BANKBOSTON, N.A.,
as Administrative and Documentary Agent
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Table of Contents
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ARTICLE I....................................................................................................... 1
Definitions............................................................................................ 1
1.1 Defined Terms........................................................................ 1
1.2 Classification of Loans and Borrowings............................................... 25
1.3 Terms Generally...................................................................... 25
1.4 Accounting Terms; GAAP............................................................... 26
1.5 Multiple Borrowers................................................................... 26
ARTICLE II...................................................................................................... 26
The Credits............................................................................................ 26
2.1 Revolving Credit Commitments......................................................... 26
2.2 Loans and Borrowings................................................................. 27
2.3 Requests for Borrowings.............................................................. 28
2.4 Letters of Credit and Bank Guaranties................................................ 29
2.5 Funding of Borrowings................................................................ 33
2.6 Interest Elections................................................................... 37
2.7 Termination and Reduction of Commitments............................................. 38
2.8 Swing Loan Facility.................................................................. 39
2.9 Repayment of Loans; Evidence of Debt................................................. 42
2.10 Prepayment of Loans.................................................................. 43
2.11 Fees................................................................................. 46
2.12 Interest............................................................................. 48
2.13 Alternate Rate of Interest........................................................... 49
2.14 Increased Costs...................................................................... 49
2.15 Break Funding Payments............................................................... 50
2.16 Taxes................................................................................ 51
2.17 Payments Generally: Pro Rata Treatment; Sharing of Set-Offs.......................... 52
2.18 Mitigation Obligations; Replacement of Lenders....................................... 54
ARTICLE III..................................................................................................... 55
Guaranty by Guarantors................................................................................. 55
3.1 The Guaranty......................................................................... 55
3.2 Obligations Unconditional............................................................ 56
3.3 Reinstatement........................................................................ 56
3.4 Subrogation.......................................................................... 57
3.5 Remedies............................................................................. 57
3.6 Instrument for the Payment of Money.................................................. 57
3.7 Continuing Guaranty.................................................................. 57
3.8 Rights of Contribution............................................................... 57
3.9 General Limitation on Guaranty Obligations........................................... 58
3.10 Release of Collateral and Guaranties................................................. 58
ARTICLE IV...................................................................................................... 59
Representations and Warranties......................................................................... 59
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4.1 Organization; Powers................................................................. 59
4.2 Authorization; Enforceability........................................................ 59
4.3 Governmental Approvals; No Conflicts................................................. 59
4.4 Financial Condition; No Material Adverse Change...................................... 59
4.5 Properties........................................................................... 61
4.6 Litigation and Environmental Matters................................................. 61
4.7 Compliance with Laws and Agreements.................................................. 62
4.8 Investment and Holding Company Status................................................ 62
4.9 Taxes................................................................................ 62
4.10 ERISA................................................................................ 62
4.11 Disclosure........................................................................... 63
4.12 Capitalization....................................................................... 63
4.13 Subsidiaries......................................................................... 63
4.14 Material Indebtedness, Liens and Agreements.......................................... 64
4.15 Federal Reserve Regulations.......................................................... 65
4.16 Burdensome Restrictions.............................................................. 65
4.17 Force Majeure........................................................................ 65
4.18 Labor Relations...................................................................... 65
ARTICLE V....................................................................................................... 66
Conditions............................................................................................. 66
5.1 Effective Date....................................................................... 66
5.2 Each Extension of Credit............................................................. 73
ARTICLE VI...................................................................................................... 73
Affirmative Covenants.................................................................................. 74
6.1 Financial Statements and Other Information........................................... 74
6.2 Notices of Material Events........................................................... 75
6.3 Existence; Conduct of Business....................................................... 76
6.4 Payment of Obligations............................................................... 76
6.5 Maintenance of Properties; Insurance................................................. 77
6.6 Books and Records; Inspection Rights................................................. 77
6.7 Fiscal Year.......................................................................... 77
6.8 Compliance with Laws................................................................. 77
6.9 Compliance with Agreements........................................................... 78
6.10 Use of Proceeds...................................................................... 78
6.11 Certain Obligations Respecting Restricted Subsidiaries and
Special Credit Parties............................................................... 78
6.12 ERISA................................................................................ 79
6.13 Environmental Matters; Reporting..................................................... 80
6.14 Conforming Leasehold Interests; Matters Relating to Additional
Real Property Collateral............................................................. 80
6.15 Additional Security Interests........................................................ 81
6.16 Refinancing of Existing Credit Agreements............................................ 81
6.17 Adequate Capital..................................................................... 81
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ARTICLE VII..................................................................................................... 82
Negative Covenants..................................................................................... 82
7.1 Indebtedness......................................................................... 82
7.2 Liens................................................................................ 82
7.3 Contingent Liabilities............................................................... 84
7.4 Fundamental Changes.................................................................. 84
7.5 Investments; Hedging Agreements...................................................... 85
7.6 Restricted Junior Payments........................................................... 85
7.7 Transactions with Affiliates......................................................... 86
7.8 Restrictive Agreements............................................................... 86
7.9 Certain Financial Covenants.......................................................... 86
7.10 Lines of Business.................................................................... 87
7.11 Calculation of Financial Covenants................................................... 87
ARTICLE VIII.................................................................................................... 88
Events of Default...................................................................................... 88
8.1 Events of Default.................................................................... 88
8.2 Receivership......................................................................... 91
ARTICLE IX...................................................................................................... 92
The Administrative Agent............................................................................... 92
9.1 Appointment and Authorization........................................................ 92
9.2 BankBoston's Rights as Lender........................................................ 92
9.3 Duties As Expressly Stated........................................................... 92
9.4 Reliance By Administrative Agent..................................................... 93
9.5 Action Through Sub-Administrative Agents............................................. 93
9.6 Resignation of Administrative Agent and Appointment of
Successor Administrative Agent....................................................... 93
9.7 Lenders' Independent Decisions....................................................... 94
9.8 Obligations of Co-Agents and Manager................................................. 94
ARTICLE X....................................................................................................... 94
Miscellaneous.......................................................................................... 94
10.1 Notices.............................................................................. 94
10.2 Waivers; Amendments.................................................................. 95
10.3 Expenses; Indemnity: Damage Waiver................................................... 96
10.4 Successors and Assigns............................................................... 98
10.5 Survival.............................................................................101
10.6 Counterparts; Integration; Effectiveness.............................................102
10.7 Severability.........................................................................102
10.8 Right of Setoff......................................................................102
10.9 Governing Law; Jurisdiction; Consent to Service of Process...........................102
10.10 WAIVER OF JURY TRIAL.................................................................103
10.11 Headings.............................................................................104
10.12 Successor Facility...................................................................104
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SCHEDULES & EXHIBITS
Schedule 2 Special Credit Party Amounts
Schedule 2.1 List of Lenders and Revolving Credit Commitments
Schedule 4.5 Proprietary Rights; Real Property Assets
Schedule 4.6 Disclosed Matters
Schedule 4.11 Management Structure
Schedule 4.12 Capitalization
Schedule 4.13 Subsidiaries
Schedule 4.14 Material Indebtedness, Liens and Agreements
Schedule 5.1 Exceptions
Schedule 7.1 Local Indebtedness of Foreign Subsidiaries
Schedule 7.7 Transactions with Affiliates
Schedule 7.8 Restrictive Agreements
Schedule 7.13 Operating Account Exceptions
Exhibit A Form of Pledge Agreement
Exhibit B Form of Security Agreement, including Perfection
Certificate attached as Schedule I
Exhibit C Form of Intellectual Property Security Agreement
Exhibit D Form of Hazardous Materials Indemnity Agreement
Exhibit E Form of Certificate of Financial Officer
Exhibit F Form of Compliance Certificate
Exhibit G Form of Opinion of Counsel to Credit Parties
Exhibit H Form of Assignment and Acceptance
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 30, 1997 among
CHICAGO MINIATURE LAMP, INC., and CERTAIN SUBSIDIARIES PARTIES HERETO, as
Borrowers, THE GUARANTORS PARTIES HERETO, THE SPECIAL CREDIT PARTIES PARTY
HERETO, THE LENDERS PARTY HERETO, THE CO-AGENTS PARTY HERETO, comprised of ABN
AMRO BANK N.V., CORESTATES BANK, N.A., and FIRST UNION NATIONAL BANK, FLEET
NATIONAL BANK as Manager, and BANKBOSTON, N.A., as Administrative and
Documentary Agent.
The Borrowers, the Guarantors, the Special Credit Parties, the Lenders,
identified on SCHEDULE 2.1 thereto, and the Administrative Agent entered into a
Credit Agreement dated as of September 8, 1997 (the "Prior Agreement") whereby
the Borrowers requested and the Lenders agreed to extend certain credit
facilities to the Borrowers and the Special Credit Parties (as restricted under
the terms of the Prior Agreement). The Guarantors are Foreign Subsidiaries of
CML and will benefit directly and indirectly from the extension of such credit
facilities to the Borrowers and may be Special Credit Parties receiving direct
Loans as further provided in the Prior Agreement. As a precondition to making
any extensions of credit thereunder, the Lenders required and the Guarantors and
the Special Credit Parties agreed, together with the Borrowers, to execute the
Prior Agreement as Guarantors and/or Special Credit Parties.
The Credit Parties, the Lenders, listed on SCHEDULE 2.1 hereto and the
Administrative Agent wish to amend and restate the Prior Agreement to permit ABN
AMRO Bank N.V., CoreStates Bank, N.A., and First Union National Bank to serve as
Co-Agents, Fleet National Bank to serve as Manager and additional Lenders to
join as parties thereto and to make certain other modifications to the Prior
Agreement as set forth herein. The Prior Agreement shall be superseded and
replaced in its entirety by the terms of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms have the
meanings specified below:
"ACQUISITION" means any transaction, or any series of related transactions,
consummated after the date hereof, by which (i) any Credit Party acquires the
business of, or all or substantially all of the assets of, any firm, or
corporation which is not a Credit Party, or any division of such firm or
corporation, located in a specific geographic area or areas, whether through
purchase of assets, purchase of stock, merger or otherwise or (ii) any
Person that was not theretofore a Subsidiary of a Credit Party becomes a
Subsidiary of a Credit Party; provided that the acquisition by any Credit Party
of an Unrestricted Subsidiary (including any firm or corporation that becomes an
Unrestricted Subsidiary as a result of such acquisition) which satisfies all of
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conditions for designation as an Unrestricted Subsidiary set forth in this
Agreement shall not be deemed to be an "Acquisition."
"ADDITIONAL MORTGAGED PROPERTY" has the meaning assigned to such term in
Section 6.14(b).
"ADJUSTED BASE RATE" means, for any day, a rate per annum equal to the
greater of (a) the base rate announced by the Administrative Agent at its head
offices from time to time and in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day PLUS 1/2 of 1%. Any change in the Adjusted
Base Rate due to a change in such base rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in such
base rate or the Federal Funds Effective Rate, respectively.
"ADJUSTED LIBO RATE" means, with respect to any LIBOR Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means BankBoston, N.A. in its capacity as
administrative and documentary agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
Notwithstanding the foregoing, (a) no individual shall be an Affiliate solely by
reason of his or her being a director, officer or employee of any Credit Party
and (b) none of the Credit Parties shall be Affiliates.
"ALTERNATIVE CURRENCY" means Deutsche Xxxx, Pounds Sterling, Canadian
Dollars, Mexican Pesos and Japanese Yen and such other currency which may be
made available by the Administrative Agent in its sole discretion to any
Borrower or Special Credit Party, so long as any such currency is freely
transferrable and convertible into Dollars and is traded on the inter-bank
currency deposits market which the Administrative Agent customarily funds
Alternative Currency Loans.
"ALTERNATIVE CURRENCY AMOUNT" means with respect to each Borrowing made,
continued or issued (or to be made, continued or issued) in an Alternative
Currency, the amount of such Alternative Currency which is equivalent to the
principal amount in Dollars of such Borrowing at the most favorable spot
exchange rate determined by the Administrative Agent to be available to its
London branch at approximately 11:00 a.m. (London time) two (2) Business Days
before such Borrowing is made, continued or issued (or to be made, continued or
issued). When used with respect to any other sum expressed in Dollars,
"Alternative Currency Amount" shall mean the amount of such Alternative Currency
which is equivalent to the amount so expressed in Dollars at the most favorable
spot exchange rate determined by the Administrative Agent to be available to it
at the relevant time.
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"ALTERNATIVE CURRENCY LOANS" means all Revolving Credit Loans made,
continued or issued in an Alternative Currency.
"APPLICABLE MARGIN" means, for any Type of Loans for any Payment Period (as
defined below), the respective rates indicated below for Loans of such Type
opposite the applicable Leverage Ratio indicated below for such Payment Period
(or as provided in the final paragraph of this definition, for part of a Payment
Period):
Applicable Margin Applicable margin
Range of for LIBOR Loan for Base Rate Loans
Leverage Ratio (% per annum) (% per annum)
-------------- ------------ -------------
Greater than or equal to 1.75% 0.75%
3.25 to 1
Greater than or equal to 1.50% 0.50%
2.50 to 1 but less than 3.25
to 1
Greater than or equal to 1.25% 0.25%
2.00 to 1 but less than 2.50
to 1
Greater than or equal to 1.5 1.00% 0.00%
to 1 but less than 2.00 to 1
Less than 1.5 to 1 0.75% 0.00%
For purposes hereof, a "PAYMENT PERIOD" means (i) initially, the period
commencing on the Effective Date to and including the last day of the first
fiscal quarter of the Borrowers in the Borrowers' fiscal year 1998 (the "INITIAL
PAYMENT PERIOD") and (ii) thereafter, the period commencing on the day
immediately succeeding the last day of the prior Payment Period to but not
including the seventh Business Day after the earlier of (x) the due date of the
next Compliance Certificate required to be delivered by the Borrowers to the
Administrative Agent pursuant to Section 6.1(d) concurrently with the delivery
by the Borrowers of the quarterly financial statements required by Section
6.1(b) or (y) the date of the actual receipt by the Administrative Agent of such
Compliance Certificate. Subject to and in accordance with the final paragraph of
this definition, the Applicable Margin shall be effective for each Payment
Period (or in the circumstances described in the final paragraph of this
definition, such portion of a Payment Period) whether or not such Payment Period
coincides with an Interest Period for LIBOR Borrowing.
The Leverage Ratio for the Initial Payment Period shall be deemed to be
greater than or equal to 2.50 to 1 but less than 3.25 to 1. The Leverage Ratio
for any Payment Period after the Initial Payment Period shall be determined on
the basis of the Compliance Certificate required to be delivered to the
Administrative Agent pursuant to Section 6.1(d) concurrently with the delivery
by the Borrowers of the quarterly financial statements required by Section
6.1(b) setting forth, among other things, a calculation of the Leverage Ratio as
at the last day of the fiscal quarter immediately preceding such Payment Period
(i.e. the Leverage Ratio set forth in the
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Compliance Certificate delivered pursuant to Section 6.1(d) that is delivered
together with the financial statements for the fourth fiscal quarter of 1997
shall be used to determine the Applicable Margin with respect to the first
Payment Period that follows the Initial Payment Period, the Leverage Ratio set
forth in the Compliance Certificate delivered pursuant to Section 6.1(d) that is
delivered together with the financial statements for the first fiscal quarter of
1998 shall be used to determine the Applicable Margin with respect to the second
Payment Period that follows the Initial Payment Period, and so forth); provided
that upon delivery by the Borrowers of the Compliance Certificate required to be
delivered by Section 6.1(d) concurrently with the delivery of the annual
financial statements required by Section 6.1(a), the Applicable Margin shall be
adjusted retroactively, as of the first day of the then current fiscal year of
the Borrowers, based on the calculation of the Leverage Ratio pursuant to such
Compliance Certificate and financial statements. In the event of a retroactive
adjustment in the determination of the Applicable Margin in favor of the
Borrowers, the amount of interest thereby refundable to the Borrowers shall be
applied on the date of such retroactive adjustment, to prepay interest payable
on the Revolving Credit Loans. If the retroactive adjustment is in favor of the
Lenders, the amount of interest due to the Lenders shall be paid in full to the
Administrative Agent within five (5) days after written notice of such
adjustment is provided to the Borrowers. Notwithstanding the foregoing, the
Borrowers shall include a request for any downward adjustment of the Applicable
Margin with the Compliance Certificate required to be delivered by the Borrowers
pursuant to Section 6.1(d) concurrently with the delivery by the Borrowers of
the annual financial statements required by Section 6.1(a) and, in any event,
the Administrative Agent and the Lenders shall not be required to make any
downward adjustment until a request of the Borrowers shall have been received
and unless such request is received within three months after the date of
delivery of such Compliance Certificate.
Anything in this Agreement to the contrary notwithstanding, the Applicable
Margin shall be the highest rates provided for above (i) during any period when
an Event of Default shall have occurred and be continuing, or (ii) if the
certificate of a Financial Officer shall not be delivered when required by
Section 6.1(d) (but only, in the case of this clause (ii), with respect to the
portion of such Payment Period prior to the delivery of such certificate).
"APPLICABLE PERCENTAGE" means (a) with respect to any Revolving Credit
Lender for purposes of Sections 2.4, 2.5 and 2.8, the percentage of the total
Revolving Credit Commitments represented by such Lender's Revolving Credit
Commitment and (b) with respect to any Lender in respect of any indemnity claim
under Section 10.3(c) arising out of an action or omission of the Administrative
Agent under this Agreement, the percentage of the total Commitments or Loans of
all Classes hereunder represented by the aggregate amount of such Lender's
Commitment or Loans of all Classes hereunder.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.4), and accepted by the Administrative Agent, in the form
of EXHIBIT H annexed hereto or any other form approved by the Administrative
Agent.
"BANKBOSTON" means BankBoston, N.A., a national banking association.
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"BANK GUARANTY DISBURSEMENTS" means any payment made under any Bank
Guaranty.
"BANK GUARANTIES" means so called bank guaranties issued by the non-U.S.
branches of the Issuing Lender on behalf of any Credit Party as permitted by the
applicable banking laws of the jurisdiction of issuance and as permitted under
the banking laws of the United States as to overseas branches of national banks.
"BASE RATE" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are denominated in
(i) with respect to the Sterling Overdraft Facility, Sterling and bear interest
at a rate determined by reference to the Sterling base loan rate announced by
the Administrative Agent at its London offices from time to time and in effect
on such day and (ii) Dollars and bear interest at a rate determined by reference
to the Adjusted Base Rate.
"BASIC DOCUMENTS" means the Loan Documents, the Sylvania Acquisition
Agreement and any related agreement.
"BOARD" means the Board of Governors of the Federal Reserve System of the
United States of America.
"BORROWERS" means CML and each of its Domestic Subsidiaries.
"BORROWING" means Loans of the same Type, made, converted or continued on
the same date and, in the case of LIBOR Loans, as to which a single Interest
Period is in effect.
"BORROWING REQUEST" means a request by CML for a Borrowing in accordance
with Section 2.3.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day on
which commercial banks in Boston, Massachusetts are authorized or required by
law to remain closed; provided that, when used in connection with a LIBOR Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in U.S. dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, the sum for the Credit
Parties (determined on a consolidated basis without duplication in accordance
with GAAP) of the aggregate amount of expenditures (including the aggregate
amount of Capital Lease Obligations incurred during such period) made to acquire
or construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period computed in
accordance with GAAP; provided that such term shall not include any such
expenditures in connection with any replacement or repair of Property affected
by a Casualty Event.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and
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accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CASUALTY EVENT" means, with respect to any Property of any Person, any
loss of or damage to, or any condemnation or other taking of, such Property for
which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Lender
(or, for purposes of Section 2.14(b), by any lending office of such Lender or by
such Lender's or the Issuing Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"CLASS" when used in reference to any Loan, Borrowing or Commitment, refers
to whether such Loan, the Loans comprising such Borrowing or the Loans that a
Lender holding such Commitment is obligated to make, are Revolving Credit Loans
or Swing Loans.
"CML" means Chicago Miniature Lamp, Inc., an Oklahoma corporation.
"CO-AGENTS" means ABN AMRO Bank N.V., Corestates Bank, N.A., and First
Union National Bank in their capacity as co-agents for the Lenders hereunder.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL" means, collectively, all of the Property (including capital
stock) in which Liens are purported to be granted pursuant to the Collateral
Documents as security for all obligations of the Credit Parties hereunder.
"COLLATERAL DOCUMENTS" means the Pledge Agreements, the Security
Agreements, the Intellectual Property Security Agreements, the Mortgages, and
all other instruments or documents delivered by any Credit Party pursuant to
this Agreement or any of the other Loan Documents in order to grant to the
Administrative Agent, on behalf of the Lenders, a Lien on any real, personal or
mixed property of that Credit Party as security for any of its obligations
hereunder and under any Hedging Agreement.
"COMMITMENTS" means the Revolving Credit Commitments and the Swing Loan
Commitment, as applicable.
"COMPLIANCE CERTIFICATE" means a certificate signed by a Financial Officer,
in substantially the form of EXHIBIT F hereto, (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations demonstrating compliance with
Section 7.9 (including a statement of the Leverage Ratio for purposes of the
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definition of Applicable Margin), and (iii) stating whether any change in GAAP
or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 4.4 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate.
"CONFORMING LEASEHOLD INTEREST" means any Recorded Leasehold Interest as to
which the lessor has agreed in writing for the benefit of the Administrative
Agent (which writing has been delivered to the Administrative Agent), whether
under terms of the applicable lease, under the terms of Landlord Consent and
Estoppel, or otherwise, to the matters described in the definition of "Landlord
Consent and Estoppel" which interest, if a subleasehold interest or
sub-subleasehold interest, is not subject to any contrary restrictions contained
in a superior lease or sublease.
"CONSOLIDATED CASH FLOW COVERAGE RATIO" means, as at any date, the ratio of
(a) EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date MINUS Capital Expenditures for such period
MINUS the amount of any income taxes actually paid in cash for such period to
(b) all Debt Service for the Credit Parties (determined on a consolidated basis
without duplication in accordance with GAAP) for such period.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, as at any date, the ratio of
(a) EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Consolidated Interest Expense of the
Credit Parties (determined on a consolidated basis without duplication in
accordance with GAAP) for such periods.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum, for the
Credit Parties (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all interest in respect of
Indebtedness accrued or capitalized during such period (whether or not actually
paid during such period) PLUS (b) the net amounts payable (or MINUS the net
amounts receivable) under Hedging Agreements accrued during such period (whether
or not actually paid or received during such period) including fees, but
excluding (i) reimbursement of legal fees and other similar transaction costs
and (ii) payments required by reason of the early termination of Hedging
Agreements in effect on the date hereof PLUS (c) all fees, including letter of
credit fees and expenses, incurred hereunder after the Effective Date.
"CONSOLIDATED NET WORTH" means, at any date of determination, the
consolidated total assets of the Credit Parties (determined on a consolidated
basis without duplication in accordance with GAAP) MINUS consolidated total
liabilities of the Credit Parties (determined on a consolidated basis without
duplication in accordance with GAAP).
"CONSOLIDATED SUBSIDIARY" means, for any Person, each Subsidiary of such
Person (whether now existing or hereafter created or acquired), the financial
statements of which shall be (or should have been) consolidated with the
financial statements of such Person in accordance with GAAP.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise
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voting power, by contract or otherwise. "CONTROLLING" and "CONTROLLED" have
meanings correlative thereto.
"CREDIT PARTIES" means the Borrowers, the Guarantors and the Special Credit
Parties and for purposes of Sections 6.1 and 7.9 and the calculation of the
Applicable Margin (and all defined terms used in each such Section and in the
definition of Applicable Margin) shall include all Unrestricted Subsidiaries.
"DEBT SERVICE" means, for any period, the sum, for the Credit Parties
(determined on a consolidated basis without duplication in accordance with GAAP)
of the following: (a) all regularly scheduled payments or regularly scheduled
mandatory prepayments of principal of any Indebtedness (including the principal
component of any payments in respect of Capital Lease Obligations, but excluding
any prepayments pursuant to Section 2.10) made during such period PLUS (b) all
Consolidated Interest Expense for such period.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in SCHEDULE 4.6 annexed hereto.
"DISPOSITION" means any sale, assignment, transfer or other disposition of
any property (whether now owned or hereafter acquired) by any Credit Party to
any other Person other than another Credit Party excluding (a) the granting of
Liens to the Administrative Agent on behalf of the Lenders pursuant to the
Collateral Documents and (b) any sale, assignment, transfer or other disposition
of (i) any property sold or disposed of in the ordinary course of business and
on ordinary business terms, (ii) any property no longer used or useful in the
business of the Credit Parties and (iii) any Collateral under and as defined in
the Collateral Documents pursuant to an exercise of remedies by the
Administrative Agent thereunder.
"DISPOSITION INVESTMENT" means, with respect to any Disposition, any
promissory notes or other evidences of indebtedness or Investments received by
any Credit Party in connection with such Disposition.
"DOLLARS" or "$" refers to lawful money of the United States of America.
"DOLLAR AMOUNT" means (a) with respect to each Loan made or continued (or
to be made or continued), or each Letter of Credit issued (or to be issued), in
Dollars, the principal amount thereof and (b) with respect to each Loan made or
continued (or to be made or continued), or each Letter of Credit and each Bank
Guaranty issued (or to be issued), in an Alternative Currency, the amount of
Dollars which is equivalent to the principal amount of such Borrowing at the
most favorable spot exchange rate determined by the Administrative Agent at
approximately 11:00 a.m. (Boston time) two (2) Business Days before such
Borrowing is made, continued or issued (or to be made, continued or issued).
When used with respect to any other sum expressed in an Alternative Currency,
"Dollar Amount" shall mean the amount of Dollars which is equivalent to the
amount so expressed in such Alternative Currency at the most
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favorable spot exchange rate determined by the Administrative Agent to be
available to it at the relevant time.
"DOMESTIC SUBSIDIARY" means a Subsidiary of CML which is not a Foreign
Subsidiary.
"EBITDA" means, for any period, (x) Net Income for the Credit Parties
determined on a consolidated basis without duplication in accordance with GAAP
for such period and plus (i) all deduction for income taxes accrued during such
period, (ii) Consolidated Interest Expense, (iii) depreciation and amortization
and (iv) any other non-cash income or charges accrued for such period plus (y)
(except to the extent received or paid in cash by the Credit Parties) income or
loss attributable to equity in Affiliates for such period, but (z) excluding
from this calculation (i) any extraordinary and unusual gains or losses during
such period and (ii) the proceeds of any Casualty Events and Dispositions.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 5.1 are satisfied (or waived in accordance with Section 10.2).
"EFFECTIVE DATE MORTGAGE" has the meaning assigned to such term in Section
5.1(f)(i).
"EFFECTIVE DATE MORTGAGE POLICIES" has the meaning assigned to such term in
Section 5.1(f)(vi).
"EFFECTIVE DATE MORTGAGED PROPERTY" has the meaning assigned to such term
in Section 5.1(f)(i).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of any Credit Party directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"EQUITY RIGHTS" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including any stockholders' or voting trust agreements) for the issuance or
sale of, or securities convertible into, any additional shares of capital stock
of any class, or partnership or other ownership interests of any type in, such
Person.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any entity (whether or not incorporated) that,
together with CML, is treated as a single employer under Section 414(b), (c),
(m) or (o) of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to any Pension Plan,
(b) the existence with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived, (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Pension Plan, (d) the incurrence by CML or any of
its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Pension Plan, (e) the receipt by CML or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Pension Plan or Pension Plans or to appoint a trustee
to administer any Pension Plan or (f) the receipt by CML or any ERISA Affiliate
of any notice, or the receipt by any of Multiemployer Plan from CML or any ERISA
Affiliate of any notice of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EVENT OF DEFAULT" has the meaning assigned to such term in Section 8.1.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrowers hereunder, (a) income, net
worth or franchise taxes imposed on (or measured by) its net income or net worth
by the United States of America, or by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located or in
which it is taxable solely on account of some connection other than the
execution, delivery or performance of this Agreement or the receipt of income
hereunder, (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction in which the Borrowers are
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrowers under Section 2.18(b)), any withholding tax that
is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability to comply with Section 2.16(e), except to the
extent that such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrowers with respect to
such withholding tax pursuant to Section 2.16(a).
"EXISTING CREDIT AGREEMENT" means the Amended Restated Credit Agreement
dated as of October 30, 1996 among the Borrowers, Xxxxxxx'x National Bank of
Oklahoma (now known as NationsBank, N.A.) as agent and lender and The First
National Bank of Boston, (now BankBoston, N.A.) as lender and any other
outstanding loans, advances, letters of credit and other agreements or
facilities among the Borrowers and Xxxxxxx'x National Bank of Oklahoma (now
known as NationsBank, N.A.), The First National Bank of Boston (now BankBoston,
N.A.)
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or any other financial institution and any other agreement providing for loans
or advances to any Credit Party prior to the date hereof.
"FACILITIES" means any and all real property (including all buildings,
fixtures or other improvements located thereon) now or hereafter or heretofore
owned, leased, operated or used by any Credit Party or any of their respective
predecessors.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) 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 Boston, or, if such rate is not so published
for any day that is a Business Day, the average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer, principal accounting
officer, treasurer or controller of CML.
"FIRST PRIORITY" means, with respect to any Lien purported to be created in
any Collateral pursuant to any Security Document, that such Lien is the most
senior Lien (other than Liens permitted pursuant to Section 7.2 to the extent
not perfected by filing of any UCC financing statements) to which such
Collateral is subject.
"FLOOD HAZARD PROPERTY" means a Mortgaged Property located in an area
designated by the Federal Emergency Management Agency as having special flood or
mud slide hazards.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than that in which CML is located. For purposes of this
definition, the United States of America, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary of CML organized in a
jurisdiction other than the United States of America, any State thereof, or the
District of Columbia.
"FUNDED DEBT" means, for any Person, the Indebtedness of such Person as
described in clauses (a), (b) and (c) of the definition of "Indebtedness."
"GAAP" means generally accepted accounting principles, as in effect from
time to time, in the United States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
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"GUARANTY" means a guaranty, an endorsement, a contingent agreement to
purchase or to furnish funds for the payment or maintenance of, or otherwise to
be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guaranty of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including
causing a bank or other financial institution to issue a letter of credit or
other similar instrument for the benefit of another Person, but excluding
endorsements for collection or deposit in the ordinary course of business. The
terms "GUARANTY" and "GUARANTIED" used as a verb shall have a correlative
meaning.
"GUARANTIED OBLIGATIONS" has the meaning assigned to such term in Section
3.1.
"GUARANTORS" means the Foreign Subsidiaries which are also Restricted
Subsidiaries and any parent of CML organized by its shareholders.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENT" means any interest rate cap agreement, interest rate
swap agreement, interest rate collar agreement, interest rate insurance, foreign
currency exchange agreement, commodity price protection agreement or other
interest, currency exchange rate or commodity price hedging arrangement.
"INDEBTEDNESS" means, for any Person, without duplication: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by loan,
advance, the issuance and sale of debt securities or the sale of Property to
another Person subject to an understanding or agreement, contingent or
otherwise, to repurchase such Property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of Property or
services, other than trade accounts payable (other than for borrowed money)
arising, and accrued expenses incurred, in the ordinary course of business so
long as such trade accounts are payable within 90 days after the date the
respective goods are delivered or the respective services are rendered; (c)
Capital Lease Obligations of such Person; (d) obligations of such Person in
respect of letters of credit or similar instruments issued or accepted by banks
and other financial institutions for the account of such Person; (e)
Indebtedness of others secured by a Lien on the Property of such Person, whether
or not the respective indebtedness so secured has been assumed by such Person;
and (f) Indebtedness of others Guarantied by such Person. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
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"INDEMNIFIED TAXES" means all Taxes other than (a) Excluded Taxes and Other
Taxes and (b) amounts constituting penalties or interest imposed with respect to
Excluded Taxes or Other Taxes.
"INTELLECTUAL PROPERTY SECURITY AGREEMENTS" means the Intellectual Property
Security Agreement executed and delivered by each of Credit Parties on the
Effective Date and thereafter in accordance with Section 6.11, each
substantially in the form of EXHIBIT C annexed hereto, as such agreements may be
amended, supplemented or otherwise modified from time to time.
"INTEREST ELECTION REQUEST" means a request by CML to convert or continue a
Borrowing in accordance with Section 2.6.
"INTEREST PAYMENT DATE" means (a) with respect to any Base Rate Loan, each
Quarterly Date and (b) with respect to any LIBOR Loan, the last Business Day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a LIBOR Borrowing with an Interest Period of more than three
months' duration, each Business Day prior to the last day of such Interest
Period that would have been the last day of the Interest Period for such LIBOR
Loan had successive three month Interest Periods been applicable to such LIBOR
Loan.
"INTEREST PERIOD" means with respect to any LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as CML may elect; provided, that (i) if any Interest Period would
end on a day other than 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, (ii) any Interest Period that commences
on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period and (iii) such Interest Period is available for the applicable
Permitted Currency on the inter-bank currency deposits market in which the
Administrative Agent customarily funds LIBOR Borrowings. For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing. Notwithstanding the foregoing,
(x) if any Interest Period for any Revolving Credit Borrowing would
otherwise end after the Revolving Credit Maturity Date, such Interest
Period shall end on the Revolving Credit Maturity Date, and
(y) notwithstanding the foregoing clause (x), no Interest Period shall
have a duration of less than one month and, if the Interest Period for any
LIBOR Loan would otherwise be a shorter period, such Loan shall not be
available hereunder as a LIBOR Loan for such period.
"INVESTMENT" means, for any Person: (a) the acquisition (whether for cash,
Property, services or securities or otherwise) of capital stock, bonds, notes,
debentures, partnership or other
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ownership interests or other securities of any other Person or any agreement to
make any such acquisition (including any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such short sale); (b) the making of any deposit with, or advance, loan or
other extension of credit to, any other Person (including the purchase of
Property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such Property to such Person, but excluding
any such advance, loan or extension of credit having a term not exceeding 180
days representing the purchase price of inventory or supplies sold by such
Person in the ordinary course of business); or (c) the entering into of any
Guaranty of, or other contingent obligation with respect to, Indebtedness or
other liability of any other Person and (without duplication) any amount
committed to be advanced, lent or extended to such Person. Notwithstanding the
foregoing, Capital Expenditures and Acquisitions shall not be deemed
"INVESTMENTS" for purposes hereof.
"IP COLLATERAL" means, collectively, the Collateral under the Intellectual
Property Security Agreements.
"ISSUING LENDER" means BankBoston, in its capacity as the issuer of Letters
of Credit hereunder and any of its foreign branches as issuers of Bank
Guaranties.
"LANDLORD CONSENT AND ESTOPPEL" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the lessor
under the related lease, in such form as may be approved by the Administrative
Agent in its sole discretion.
"LEASEHOLD PROPERTY" means any leasehold interest of any Credit Party as
lessee under any lease of real property, other than any such leasehold interest
designated from time to time by Administrative Agent in its sole discretion as
not being required to be included in the Collateral.
"LC DISBURSEMENT" means a payment made by the Issuing Lender pursuant to a
Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time PLUS (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrowers at such time. The LC Exposure of any Revolving Credit Lender at
any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"LENDERS" means the Persons listed on SCHEDULE 2.1 annexed hereto
(including without limitation the Issuing Lender and the Swing Loan Lender) and
any other Person that shall have become a party hereto pursuant to an Assignment
and Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LEVERAGE RATIO" means, as at any date, the ratio of (a) the Funded Debt of
the Credit Parties (determined on a consolidated basis without duplication in
accordance with GAAP) to (b)
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EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date.
"LIBOR" when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing (whether in Dollars or an
Alternative Currency), are bearing interest at a rate determined by reference to
the Adjusted LIBO Rate.
"LIBO RATE" means, with respect to any LIBOR Borrowing for any Interest
Period, the rate appearing on Page 3750 of the Telerate Service or other
appropriate Telerate Service Page (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits of the applicable
Permitted Currency in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate of interest for deposits of the applicable Permitted
Currency with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO RATE"
with respect to such LIBOR Borrowing for such Interest Period shall be the rate
at which deposits of the applicable Permitted Currency of $5,000,000 (or the
Alternative Currency Amount thereof with respect to a Borrowing to be made in an
Alternative Currency), and for a maturity comparable to such Interest Period,
are offered by 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 Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (other than an
operating lease) (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.
"LOAN DOCUMENTS" means this Agreement, any promissory notes evidencing
Loans hereunder, the Collateral Documents and any other instruments or documents
delivered or to be delivered from time to time pursuant to this Agreement.
"LOANS" means the Revolving Credit Loans and the Swing Loans.
"MANAGER" means Fleet National Bank in its capacity as manager for the
Lenders hereunder.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Credit Parties taken as a whole, (b) the ability of any Credit Party to
perform any of their respective obligations under this Agreement or the other
Loan Documents or (c) the rights of or benefits available to the Lenders under
this Agreement and the other Loan Documents.
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"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans or Letters
of Credit), or obligations in respect of one or more Hedging Agreements, of any
one or more of the Credit Parties in an aggregate principal amount exceeding
$750,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of any Person in respect of any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that such Person would be required to pay if such Hedging Agreement
were terminated at such time.
"MATERIAL LEASEHOLD PROPERTY" means a Leasehold Property reasonably
determined by the Administrative Agent to be of material value as Collateral or
of material importance to the operations of the Credit Parties; provided,
however that a Leasehold Property with respect to which the aggregate amount of
all rents payable during any one fiscal year does not exceed $25,000 shall not
be a "Material Leasehold Property."
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"MORTGAGE" means (i) a security instrument (whether designated as a deed of
trust or a mortgage, leasehold mortgage, collateral assignment of leases and
rents or by any similar title) executed and delivered by any Credit Party in
such form as may be approved by the Administrative Agent in its sole discretion,
in each case with such changes thereto as may be recommended by Administrative
Agent's local counsel based on local laws or customary local practices, (ii) or
at Administrative Agent's option, in the case of an Additional Mortgaged
Property, an amendment to an existing Mortgage, in form satisfactory to
Administrative Agent, adding such Additional Mortgaged Property to the Real
Property Assets encumbered by such existing Mortgage, in either case as such
security instrument or amendment may be amended, supplemented or otherwise
modified from time to time. "MORTGAGES" means all such instruments, including
Effective Date Mortgages and any Additional Mortgages, collectively.
"MORTGAGED PROPERTY" means an Effective Date Mortgaged Property or an
Additional Mortgaged Property.
"NET CASH PAYMENTS" means,
(i) with respect to any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by any Credit Party in respect of such Casualty Event net of (A) reasonable
expenses incurred by any Credit Party in connection therewith and (B)
contractually required repayments of Indebtedness to the extent secured by
a Lien on such property and any income and transfer taxes payable by any
Credit Party in respect of such Casualty Event;
(ii) with respect to any Disposition, the aggregate amount of all cash
payments received by any Credit Party directly or indirectly in connection
with such Disposition, whether at the time of such Disposition or after
such Disposition under deferred payment arrangements or Investments entered
into or received in connection with such Disposition (including Disposition
Investments); provided that
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(A) Net Cash Payments shall be net of (I) the amount of any
legal, title, transfer and recording tax expenses, commissions and
other fees and expenses payable by any Credit Party in connection with
such Disposition and (II) any Federal, state and local income or other
taxes estimated to be payable by any Credit Party as a result of such
Disposition, but only to the extent that such estimated taxes are in
fact paid to the relevant Federal, state or local governmental
authority within twelve months of the date of such Disposition; and
(B) Net Cash Payments shall be net of any repayments by any
Credit Party of Indebtedness to the extent that (I) such Indebtedness
is secured by a Lien on the property that is the subject of such
Disposition and (II) the transferee of (or holder of a Lien on) such
property requires that such Indebtedness be repaid as a condition to
the purchase of such property; and
(iii) with respect to any offering of equity securities or any
incurrence of Indebtedness permitted pursuant to Section 7.1(f), the
aggregate amount of all cash proceeds received by any Credit Party
therefrom less all legal, underwriting and similar fees and expenses
incurred in connection therewith.
"NET INCOME" means, for any period, net income (or loss), excluding
extraordinary items, of the Credit Parties (determined in accordance with GAAP
on a consolidated basis).
"OBLIGATIONS" means, any and all obligations of the Credit Parties or any
of them to the Lenders of every kind and description, direct or indirect,
absolute or contingent, primary or secondary, due or become due, now existing or
hereafter arising, regardless of how they arise or by what agreement or
instrument they may be evidenced or whether evidenced by any agreement or
instrument, and including obligations to perform acts and to refrain from acting
as well as obligations to pay money.
"OPERATING LEASE OBLIGATIONS" means, with respect to the Credit Parties
means the obligations to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are not Capital Lease Obligations.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement and the other Loan Documents,
provided that there shall be excluded from "Other Taxes" all Excluded Taxes.
"PENSION PLAN" means any Plan that is a defined benefit pension plan
subject to the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
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"PERMITTED ACQUISITIONS" means acquisition by any of the Borrowers upon the
following conditions:
(a) The line of business acquired is substantially similar to the
Borrowers' existing business.
(b) Maximum additional Revolving Credit Loans for any single
acquisition or series of related acquisitions may not exceed $25,000,000.
(c) Any obligations due to a seller of any such acquired company or
any other debt incurred to finance such acquisition must be subordinated to
the obligations due the Lenders upon terms acceptable to the Required
Revolving Credit Lenders.
(d) A Borrower must be the surviving entity of any merger or other
corporate reorganization related to any such acquisition.
(e) The Borrowers must demonstrate on a pro forma basis that the
Borrowers and the acquired company would have complied with all financial
covenants on a combined basis based for the four quarters ending prior to
the date of the acquisition.
(f) No default or Events of Default shall exist or occur or be
continuing at the time of or after giving effect to any proposed
acquisition.
"PERMITTED CURRENCY" means Dollars or an Alternative Currency or each such
currency as the context requires.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guarantied 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 one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard and Poor's Ratings Service
or from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guarantied by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$250,000,000;
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(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
(e) loans to employees of the Credit Parties not to exceed $750,000 in
the aggregate outstanding at any time and an additional $750,000 for loans
to Affiliates in the aggregate outstanding at any time.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any employee benefit plan within the meaning of Section 3(3)
of ERISA in which CML or any ERISA Affiliate is an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENTS" means the Pledge Agreements executed and delivered by
certain of the Credit Parties on the Effective Date and thereafter in accordance
with Section 6.11, each substantially in the form of EXHIBIT A annexed hereto,
as such agreements may be amended, supplemented or otherwise modified from time
to time.
"POST-DEFAULT RATE" means, for Base Rate Loans, a rate per annum equal to
the Adjusted Base Rate PLUS the Applicable Margin PLUS 2%, and, for LIBOR Loans,
a rate per annum equal to the Adjusted LIBO Rate PLUS the Applicable Margin PLUS
2%.
"PROJECT LIGHTNING DISCUSSION MATERIALS" means the "Project Lightning
Discussion Materials" delivered by CML to the Administrative Agent at a
presentation in June 1997.
"PROPERTY" means any interest of any kind in property or assets, whether
real, personal or mixed, and whether tangible or intangible.
"PTO" means the United States Patent and Trademark Office or any successor
or substitute office in which filings are necessary or, in the opinion of the
Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"QUARTERLY DATES" means the last Business Day of February, May, August and
November in each year, the first of which shall be the first such day after the
Effective Date of this Agreement.
"REAL PROPERTY ASSET" means, at any time of determination, any fee
ownership or leasehold interest then owned by any Credit Party in any real
property.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with respect to
which a Recorded Document (as hereinafter defined) has been recorded in all
places necessary or desirable, in the Administrative Agent's reasonable
judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrances of the affected real property. For purposes of this
definition, the term "RECORDED DOCUMENT" means, with respect to any Leasehold
Property, (a) the lease evidencing such Leasehold Property or a memorandum
thereof, executed
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and acknowledged by the owner of the affected real property, as lessor, or (b)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to the Administrative Agent.
"REFUNDED SWING LOANS" has the meaning assigned to such term in Section
2.8.
"REFUNDING OR PARTICIPATION AMOUNTS" has the meaning specified in Section
2.8.
"REGISTER" has the meaning assigned to such term in Section 10.4.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"RENTAL OBLIGATIONS" means the maximum fixed rentals paid or payable by a
lessee under any lease during a specified period, excluding amounts paid or
payable on account of maintenance, utilities, ordinary repairs, insurance,
taxes, assessments and other similar charges, whether or not designated as
rental or additional rental.
"REQUIRED REVOLVING CREDIT LENDERS" means, at any time, Lenders having
Revolving Credit Loans, LC Exposure, Bank Guaranties and unused Revolving Credit
Commitments representing at least 51% of the sum of the total Revolving Credit
Exposure, LC Exposure, Bank Guaranties and unused Revolving Credit Commitments
at such time.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of any Credit
Party now or hereafter outstanding, except a dividend payable solely in shares
of that class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of any Credit
Party now or hereafter outstanding, (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of any Credit Party now or hereafter
outstanding, and (iv) any payment or prepayment of principal of, premium, if
any, or interest on, or redemption purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with respect
to any Subordinated Indebtedness.
"RESTRICTED SUBSIDIARY" means each Subsidiary of CML that is not an
Unrestricted Subsidiary.
"REVOLVING CREDIT AVAILABILITY PERIOD" means the period from and including
the Effective Date to but excluding the earlier of (a) the Revolving Credit
Maturity Date and (b) the date of termination of the Revolving Credit
Commitments.
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"REVOLVING CREDIT COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to make Revolving Credit Loans and to acquire
participations in Letters of Credit hereunder, as such commitment may be (a)
reduced from time to time pursuant to Sections 2.7 and 2.10 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.4. The initial maximum amount of each Lender's Revolving
Credit Commitment is set forth on SCHEDULE 2.1, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving Credit
Commitment, as applicable. The aggregate original maximum amount of the
Revolving Credit Commitments is $250,000,000.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Revolving Credit
Lender at any time, the sum of the outstanding principal amount of such Lender's
Revolving Credit Loans (including participations in Alternative Currency Loans
under Section 2.5(b)(iii)) and its LC Exposure PLUS its share of outstanding
Bank Guaranties at such time.
"REVOLVING CREDIT LENDER" means (a) initially, a Lender that has a
Revolving Credit Commitment set forth opposite its name on SCHEDULE 2.1 and (b)
thereafter, the Lenders from time to time holding Revolving Credit Loans or
Swing Loans or both and Revolving Credit Commitments, after giving effect to any
assignments thereof permitted by Section 10.4.
"REVOLVING CREDIT LOAN" means a Loan made pursuant to Section 2.1 that
utilizes the Revolving Credit Commitment.
"REVOLVING CREDIT MATURITY DATE" means the last Business Day in August,
2002.
"SECURITY AGREEMENTS" means the Security Agreements executed and delivered
by certain of the Credit Parties on the Effective Date and thereafter in
accordance with Section 6.11, each substantially in the form of EXHIBIT B
annexed hereto, as such agreements may be amended, supplemented or otherwise
modified from time to time or such documentation as required under the law
applicable to the Credit Party or its assets in which security is being granted
to the Administrative Agent.
"SPECIAL COUNSEL" means Xxxxxx & Dodge LLP, in its capacity as special
counsel to BankBoston, N.A,, as Administrative Agent of the credit facilities
contemplated hereby.
"SPECIAL CREDIT PARTY" means any Unrestricted Subsidiary or any Sylvania
Company to which the Lenders have made one or more Loans, directly or indirectly
though another Credit Party, but which Unrestricted Subsidiary or Sylvania
Company can only agree to repay and secure the actual Loans made to it and
cannot guaranty or secure any Loans (including the Sylvania Acquisition Loan)
not made directly to such Unrestricted Subsidiary or Sylvania Company. Special
Credit Parties have and will execute this Agreement solely for purposes of
acknowledging the representations set forth in Article IV to the extent
applicable to any such Special Credit Party and the covenants set forth in
Articles VI and VII.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one MINUS (i) with respect to LIBOR Loans denominated in Dollars, the aggregate
of the maximum reserve percentages
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(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) or (ii) with respect to LIBOR Loans denominated in an Alternative
Currency, the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the applicable governmental authority with respect to such
Alternative Currency. Such reserve percentages shall include those imposed
pursuant to such Regulation D. LIBOR Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"STERLING" means the lawful currency of the United Kingdom of Great Britain
and Northern Ireland.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of any Credit Party
consented to in writing by the Required Revolving Credit Lenders which matures
in its entirety later than the Loans and by its terms (or by the terms of the
instrument under which it is outstanding and to which appropriate reference is
made in the instrument evidencing such Subordinated Indebtedness) is made
subordinate and junior in right of payment to the Loans and to such Credit
Party's other obligations to the Lenders hereunder by provisions reasonably
satisfactory in form and substance to the Required Revolving Credit Lenders and
Special Counsel.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of
the general partnership interests are, as of such date, owned, controlled or
held, or (b) that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent. References herein to "SUBSIDIARIES" shall, unless
the context requires otherwise, be deemed to be references to Subsidiaries of
CML.
"SWING LOAN" has the meaning specified in Section 2.8.
"SWING LOAN COMMITMENT" means the commitment of the Swing Loan Lender to
make Swing Loans, as such commitment may be (a) reduced from time to time
pursuant to Sections 2.7 and 2.10 and (b) reduced or increased from time to time
pursuant to assignments by the Swing Loan Lender pursuant to Section 10.4, which
Commitment shall be deemed to be part of the Swing Loan Lender's Revolving
Credit Commitment if and to the extent of such Revolving Credit Commitment and
not in addition thereto.
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"SWING LOAN LENDER" means BankBoston, N.A., or such other Lender who shall
agree to act as the Swing Loan Lender.
"SWING LOAN REQUEST" has the meaning assigned to such term in Section 2.8.
"SWING LOAN SUBLIMIT" means a sublimit of the Revolving Credit Commitment
equal to $10,000,000.
"SYLVANIA" means Sylvania Lighting International B.V., a private company
with limited liability incorporated under the laws of the Netherlands.
"SYLVANIA ACQUISITION" means the acquisition by CML or a Subsidiary of CML
(provided such Subsidiary is a Credit Party) of all the outstanding shares of
capital stock of Sylvania and the other transactions contemplated by the
Sylvania Acquisition Agreement.
"SYLVANIA ACQUISITION AGREEMENT" means that certain Stock Purchase
Agreement dated August 18, 1997 by and among CML and the shareholders of
Sylvania in the form delivered to the Administrative Agent and the Lenders prior
to their execution of this Agreement.
"SYLVANIA ACQUISITION LOAN" means the Loan made on the date hereof as
further described in Section 2.1 hereof.
"SYLVANIA COMPANIES" means Sylvania and its Subsidiaries on the date of the
Sylvania Acquisition.
"SYNDICATION AGENT" means BancBoston Securities Inc. as syndication agent
and arranger.
"TAXES" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"TITLE COMPANY" means, collectively, Lawyer's Title Insurance Corporation,
and one or more other title insurance companies reasonably satisfactory to the
Administrative Agent.
"TRANSACTIONS" means (a) with respect to the Borrowers, the execution,
delivery and performance by the Borrowers of the Loan Documents to which it is a
party, the borrowing of Loans and the use of the proceeds thereof, and the
issuance of Letters of Credit hereunder and (b) with respect to any Credit Party
(other than the Borrowers), the execution, delivery and performance by such
Credit Party of the Loan Documents to which it is a party.
"TYPE" when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Adjusted Base Rate.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
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"UNRESTRICTED SUBSIDIARIES" means (a) any Foreign Subsidiary which is not
permitted under applicable U.S. or local law to guaranty the Loans or to grant
Liens to the Administrative Agent for the benefit of the Lenders in order to
secure the Loans, (b) any Foreign Subsidiary designated as such by the Board of
Directors of CML as set forth below if, at the time of such designation: (i)
neither the Borrowers nor any of the Restricted Subsidiaries either (A)
provides, except as permitted by this Agreement, credit support for, or
otherwise Guaranties, any Indebtedness of such Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness, but excluding
any credit support or other Guaranty that would not be prohibited hereby to
exist after giving effect to such designation), (B) is otherwise directly or
indirectly liable for any Indebtedness of such Subsidiary (excluding any
liability that would not be prohibited hereby to exist after giving effect to
such designation) or (C) has assigned a promissory note executed by such Foreign
Subsidiary as described in Section 7.1(e) to the Administrative Agent for the
benefit of the Lenders and (ii) no default with respect to any Indebtedness of
such Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) for which any Credit Party is not
liable would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Credit Parties to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its final scheduled maturity, (c) any Foreign Subsidiary of the Borrowers (other
than a Subsidiary existing on the date hereof or any successor to any such
Subsidiary (including any Person that owns any Property previously owned by any
such Subsidiary)) which at the time of determination shall have been designated
an Unrestricted Subsidiary by the Board of Directors of the Borrowers as
provided below, (d) any Subsidiary of an Unrestricted Subsidiary and (e) each
Foreign Subsidiary of the Borrowers designated as an Unrestricted Subsidiary in
Part (a) of SCHEDULE 4.13 annexed hereto. The Board of Directors of CML may,
subject to clauses (b) and (c) above, designate any Foreign Subsidiary of the
Borrowers to be an Unrestricted Subsidiary unless (i) such Subsidiary owns any
capital stock of, or owns or holds any Lien on any property of, any Credit
Party, (ii) such Subsidiary has assets having an aggregate fair market value of
more than $10,000, or (iii) at the time of such designation (either before or
after giving effect thereto), an Event of Default exists or would result
therefrom and the Administrative Agent acting upon the instructions of the
Required Revolving Credit Lenders shall have objected to such designation on or
before the tenth Business Day following the earlier of the date it receives
notice of such designation as provided in the following sentence or the date it
receives notice of such Event of Default as provided in Section 6.2 (d) hereof.
Any Unrestricted Subsidiary shall cease to be an Unrestricted Subsidiary by
designation of the Board of Directors of CML. CML shall furnish to the
Administrative Agent a certified copy of each resolution of its Board of
Directors evidencing each designation pursuant to this definition and a
certificate of a Financial Officer to the effect that such designation complied
with the conditions thereto set forth herein and (in the case of any Subsidiary
of the Borrowers being designated an Unrestricted Subsidiary) setting forth in
reasonable detail the computations necessary to determine whether the Borrowers
are in compliance with Section 7.9 hereof on the date of such designation (both
before and after giving effect thereto), and no such designation shall be
effective for purposes hereof until the Administrative Agent shall have received
such resolution and certificate. As of the Effective Date, Schedule 4.13
indicates which Subsidiaries are Unrestricted Subsidiaries.
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"WHOLLY OWNED SUBSIDIARY" means, with respect to any Person at any date,
any corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing 100% of the
equity or ordinary voting power (other than directors' qualifying shares) or, in
the case of a partnership, 100% of the general partnership interests are, as of
such date, directly or indirectly owned, controlled or held by such Person or
one or more Wholly Owned Subsidiaries of such Person or by such Person and one
or more Wholly Owned Subsidiaries of such Person.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
1.2 CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a "Revolving Credit
Loan" or "Swing Loan") or by Type (e.g., a "Base Rate Loan" or a "LIBOR Loan")
or by Class and Type (e.g., a "LIBOR Revolving Credit Loan" or a "Base Rate
Revolving Credit Loan"). In similar fashion, (i) Borrowings may be classified
and referred to by Class, by Type and by Class and Type, and (ii) Commitments
may be classified and referred to by Class.
1.3 TERMS GENERALLY. The definitions of terms herein shall apply equally to
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. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights. References in Articles
VI and VII in respect of the affirmative and negative covenants to be performed
by the Credit Parties shall be interpreted to mean, with respect to Article VI,
that CML will, and will cause each Restricted Subsidiary and Special Credit
Party to comply with such covenant, and, with respect to Article VII, that CML
will not, and will not permit any Restricted Subsidiary or Special Credit Party
to, violate such covenant.
1.4 ACCOUNTING TERMS; GAAP. 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 or similar uniform standards as may be
applicable to any Foreign Subsidiary; provided that, if CML notifies the
Administrative Agent that CML requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date
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hereof in GAAP or such similar uniform standard as may be applicable to any
Foreign Subsidiary or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies CML that the Required
Revolving Credit Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or such similar uniform standard as may be applicable to any
Foreign Subsidiary or in the application thereof, then such provision shall be
interpreted on the basis of GAAP or such similar uniform standard as may be
applicable to any Foreign Subsidiary as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
1.5 MULTIPLE BORROWERS. The term "Borrowers" refers to more than one
corporation. All references to the Borrowers are references to CML and its
Domestic Subsidiaries. All Obligations are joint and several between CML and
each such Domestic Subsidiary and the obligations of the Guarantors pursuant to
the Article III are joint and several with the Obligations. All representations
and covenants shall apply and be applied to each of the Credit Parties
separately as well as jointly and are made by each of the Credit Parties, other
than financial covenants contained in Section 7.9, which shall be applied on a
consolidated basis to the Credit Parties. The Borrowers designate CML to act on
behalf of the Borrowers for all purposes under this Agreement, including the
requesting of Revolving Credit Loans and Swing Loans hereunder, and reduction of
the Revolving Credit Commitment.
ARTICLE II
THE CREDITS
2.1 REVOLVING CREDIT COMMITMENTS. Subject to the terms and conditions set
forth herein, each Revolving Credit Lender agrees to make Revolving Credit Loans
to the Borrowers and Special Credit Parties from time to time during the
Revolving Credit Availability Period in an aggregate principal amount that will
not result in such Lender's Revolving Credit Loans exceeding such Lender's
Revolving Credit Commitment; provided that, based on the Dollar Amount of all
Borrowings, the total Revolving Credit Exposure shall not at any time exceed the
total Revolving Credit Commitments; provided further that, the aggregate amount
of Revolving Credit Loans comprising the Sylvania Acquisition Loan shall not
exceed $125,000,000; provided further that (a) the aggregate amount of Revolving
Credit Loans denominated as Alternative Currency Loans either to the Borrowers
or the Special Credit Parties PLUS the amount of the overdraft outstanding
pursuant to the Sterling Overdraft Facility shall not at any time exceed
$50,000,000 in Dollar Amount and (b) the aggregate principal amount of Revolving
Credit Loans made directly to or for the benefit of any Special Credit Party
shall not exceed the principal amount of such Special Credit Party's Funded Debt
outstanding on the date hereof and to be refinanced hereby without the prior
written consent of the Required Revolving Credit Lenders in their sole
discretion on a case by case basis as to amount and Alternative Currency (the
maximum amount and Alternative Currency of Special Credit Parties shall be
listed on Schedule 2 hereto if different from the existing Funded Debt of each
such Special Credit Party on the Effective Date).
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2.2 LOANS AND BORROWINGS.
(a) Each Loan of a particular Class (other than a Swing Loan made by the
Swing Loan Lender or an Alternative Currency Loan made by the Administrative
Agent) shall be made as part of a Borrowing consisting of Loans of such Class
made by the Lenders ratably in accordance with their respective Commitments of
such Class. The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder; provided that
the Revolving Credit Commitments of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13 and except with respect to Swing Loans, each
Borrowing shall be comprised entirely of Base Rate Loans or LIBOR Loans as the
Borrowers may request in accordance herewith. Each Lender at its option may make
any LIBOR Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrowers to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for a LIBOR Borrowing
denominated in Dollars, such Borrowing shall be in an aggregate amount at least
equal to $2,500,000 or any greater multiple of $1,000,000, and with respect to
each LIBOR Borrowing denominated in an Alternative Currency, the Dollar Amount
of such Borrowing shall be at least equal to $2,500,000 or any greater multiple
of $1,000,000. At the time that each Base Rate Borrowing (other than a Swing
Loan) is made, such Borrowing shall be in an aggregate amount that is at least
equal to $2,500,000 or any greater multiple of $1,000,000; provided that (i) a
Base Rate Borrowing of Revolving Credit Loans may be in an aggregate amount that
is equal to the entire unused balance of the total Revolving Credit Commitments,
and (ii) a Revolving Credit Base Rate Borrowing may be in an amount that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.4(e). At the time each Swing Loan is made, such Borrowing shall be in
an aggregate amount of $100,000 or any greater multiples of $100,000. Borrowings
of more than one Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of ten LIBOR Borrowings
outstanding of which no more than six LIBOR Borrowings may be in Dollars.
(d) Alternative Currency Loans shall be made as provided in Section 2.5 (b)
and shall in all other respects be subject to the terms which apply to Revolving
Credit Borrowings.
2.3 REQUESTS FOR BORROWINGS.
(a) To request a Revolving Credit Borrowing, CML on behalf of the Borrowers
or CML and any Special Credit Party, if the Loan is specifically made to or for
the benefit of any such Special Credit Party, shall notify the Administrative
Agent of such request by telephone (i) in the case of a LIBOR Borrowing
denominated in Dollars, not later than 11:00 a.m., Boston, Massachusetts time,
three Business Days before the date of the proposed Borrowing, (ii) in the case
of a LIBOR Borrowing denominated in an Alternative Currency, not later than
11:00 a.m., Boston, Massachusetts time, three Business Days before the date of
the proposed Borrowing or (iii) in the case of a Base Rate Borrowing not later
than 11:00 a.m., Boston, Massachusetts time,
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one Business Day before the date of the proposed Borrowing; provided that any
such notice of a Base Rate Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.4(e) may be given not later than 10:00
a.m., Boston, Massachusetts time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
CML and (if appropriate) such Special Credit Party.
(b) Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.2:
(i) the aggregate amount of such Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Base Rate Borrowing (for
Dollar denominated Loans only) or a LIBOR Borrowing;
(iv) in the case of a LIBOR Borrowing,
(A) whether such Borrowing is to be denominated in Dollars or in
an Alternative Currency, and
(B) the initial Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrowers' account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.5.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be a Base Rate Borrowing. If no Interest Period is specified
with respect to any requested LIBOR Borrowing, then the Borrowers shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section 2.3,
the Administrative Agent shall advise each Lender of the details thereof and of
the amount of such Lender's Loan to be made as part of the requested Borrowing.
2.4 LETTERS OF CREDIT AND BANK GUARANTIES.
(a) GENERAL. Subject to the terms and conditions set forth herein, in
addition to the Revolving Credit Loans provided for in Section 2.1(a), CML may
request the issuance of Letters of Credit denominated in Dollars or an
Alternative Currency for its own account by the Issuing Lender, in a form
reasonably acceptable to the Issuing Lender, at any time and from time to time
during the Revolving Credit Availability Period. Letters of Credit issued
hereunder shall constitute utilization of the Revolving Credit Commitments. In
the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by CML to, or entered into by CML
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with, the Issuing Lender relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN CONDITIONS.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), CML shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Lender) to the Issuing Lender and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
the date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section 2.4), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing
Lender, the Borrowers also shall submit a letter of credit application on the
Issuing Lender's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrowers shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the aggregate combined LC
Exposure and Bank Guaranties of the Issuing Lender (determined for these
purposes without giving effect to the participations therein of the Revolving
Credit Lenders pursuant to paragraph (e) of this Section 2.4) shall not exceed
$15,000,000 and (ii) the total Revolving Credit Exposure shall not exceed the
total Revolving Credit Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire (without giving
effect to any extension thereof by reason of an interruption of business) at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) provided that any
such Letter of Credit may provide for automatic extensions thereof to a date not
later than one year beyond its current expiration date, and (ii) the Revolving
Credit Maturity Date. No Letter of Credit may be extended beyond the Revolving
Credit Maturity Date.
(d) BANK GUARANTIES; NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION;
CERTAIN CONDITIONS. From time to time as permitted by applicable law, CML may
request the issuance for the benefit of itself the Borrowers or the Special
Credit Parties, Bank Guaranties (or the amendment, renewal or extension of an
outstanding Bank Guaranty). Each such request shall be hand delivered or
telecopied (or transmitted by other electronic communication, if arrangements
for such other electronic communication have been approved by the Issuing
Lender) to the Issuing Lender and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) of a
notice requesting the issuance of a Bank Guaranty, or identifying the Bank
Guaranty to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, and containing the requested date on which such Bank
Guaranty is to expire (which shall not extend beyond the Revolving Credit
Maturity Date), the amount of such Bank Guaranty, the name and address of the
party for which the Bank Guaranty is being issued and such other information as
shall be necessary to prepare, amend, renew or extend such Bank Guaranty. CML,
the applicable Borrower and/or the applicable
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Special Credit Party shall execute a counter indemnity agreement or similar
reimbursement agreement in form satisfactory to the Issuing Lender. A Bank
Guaranty shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Bank Guaranty the Borrowers
shall be deemed to represent and warrant that) after giving effect to such
issuance, amendment, renewal or extension (i) the aggregate combined LC Exposure
and Bank Guaranties of the Issuing Lender (determined for these purposes without
giving effect to the participations therein of the Revolving Credit Lenders
pursuant to paragraph (e) of this Section 2.4) shall not exceed $15,000,000 in
Dollar Amount less outstanding Letter of Credit Exposure and (ii) the total
Revolving Credit Exposure shall not exceed the total Revolving Credit
Commitments.
(e) PARTICIPATIONS. By the issuance of a Letter of Credit or Bank Guaranty
(or an amendment to a Letter of Credit or Bank Guaranty increasing the amount
thereof) by the Issuing Lender, and without any further action on the part of
the Issuing Lender, the Issuing Lender hereby grants to each Revolving Credit
Lender, and each Revolving Credit Lender hereby acquires from the Issuing
Lender, a participation in such Letter of Credit or Bank Guaranty equal to such
Revolving Credit Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit or such Bank Guaranty. In
consideration and in furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Lender, such Revolving Credit Lender's Applicable
Percentage of each LC Disbursement or Bank Guaranty Disbursement made by the
Issuing Lender and not reimbursed by the Borrowers on the date due as provided
in paragraph (f) of this Section 2.4, or of any reimbursement payment required
to be refunded to the Borrowers for any reason. Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit or Bank Guaranty is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or any
Bank Guaranty or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(f) REIMBURSEMENT. If the Issuing Lender shall make any LC Disbursement in
respect of a Letter of Credit or Bank Guaranty Disbursement, the Borrowers shall
reimburse the Issuing Lender in respect of such LC Disbursement or Bank Guaranty
Disbursement, as the case may be, by paying to the Administrative Agent an
amount in immediately available funds equal to the Dollar Amount of such LC
Disbursement or Bank Guaranty Disbursement not later than 12:00 noon, Boston,
Massachusetts time, on (i) the Business Day that CML receives notice of such LC
Disbursement or Bank Guaranty Disbursement, if such notice is received prior to
10:00 a.m., Boston, Massachusetts time; provided that any such same-day
Borrowing shall be a Swing Loan to the extent of the Swing Loan Availability at
such time, or (ii) the Business Day immediately following the day that CML
receives such notice, if such notice is not received prior to such time,
provided that, if such LC Disbursement or Bank Guaranty Disbursement is not less
than $500,000 in Dollar Amount, the Borrowers may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.3 that such
payment be financed with a Revolving Credit Base Rate Borrowing in an equivalent
amount and, to the extent so financed,
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the Borrowers' obligation to make such payment shall be discharged and replaced
by the resulting Revolving Credit Base Rate Borrowing.
If the Borrowers fail to make such payment when due, the Administrative
Agent shall notify each Revolving Credit Lender of the applicable LC
Disbursement or Bank Guaranty Disbursement, the payment then due from the
Borrowers in respect thereof and such Revolving Credit Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Revolving
Credit Lender shall pay to the Administrative Agent the Dollar Amount of its
Applicable Percentage of the payment then due from the Borrowers, in the same
manner as provided in Section 2.5 with respect to Revolving Credit Loans made by
such Lender (and Section 2.5 shall apply to the payment obligations of the
Revolving Credit Lenders, treating each such payment as a Loan for this
purpose), and the Administrative Agent shall promptly pay to the Issuing Lender
the amounts so received by it from the Revolving Credit Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrowers
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Lender or, to the extent that the Revolving Credit
Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Lender, then to such Lenders and the Issuing Lender as their interests may
appear. Any payment made by a Revolving Credit Lender pursuant to this paragraph
to reimburse the Issuing Lender for any LC Disbursement or Bank Guaranty
Disbursement shall not constitute a Loan and shall not relieve the Borrowers of
their obligation to reimburse such LC Disbursement or Bank Guaranty
Disbursement, as the case may be.
(g) OBLIGATIONS ABSOLUTE.
(i) The Borrowers' obligation to reimburse LC Disbursements and Bank
Guaranty Disbursements as provided in paragraph (f) of this Section 2.4
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (A) any lack of validity or
enforceability of any Letter of Credit or Bank Guaranty, or any term or
provision therein, (B) any draft or other document presented under a Letter
of Credit or Bank Guaranty proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any
respect, (C) payment by the Issuing Lender under a Letter of Credit or Bank
Guaranty against presentation of a draft or other document that does not
comply strictly with the terms of such Letter of Credit or Bank Guaranty
and (D) any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section
2.4, constitute a legal or equitable discharge of the Borrowers'
obligations hereunder.
(ii) Neither the Administrative Agent, the Lenders nor the Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer
of any Letter of Credit or Bank Guaranty by the Issuing Lender or any
payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in clause (g)(i) above), or any error,
omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of
Credit or Bank Guaranty (including any document required to make a drawing
thereunder), any error in interpretation of technical
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terms or any consequence arising from causes beyond the control of the
Issuing Lender; provided that the foregoing shall not be construed to
excuse the Issuing Lender from liability to the Borrowers to the extent of
any direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by the Borrowers to the extent permitted by
applicable law) suffered by the Borrowers that are caused by the Issuing
Lender's gross negligence or wilful misconduct when determining whether
drafts and other documents presented under a Letter of Credit or Bank
Guaranty comply with the terms thereof. Subject in all respects to the
foregoing, the parties hereto expressly agree that:
(A) the Issuing Lender may accept documents that appear on their
face to be in substantial compliance with the terms of a Letter of
Credit or Bank Guaranty without responsibility for further
investigation, regardless of any notice or information to the
contrary, and may make payment upon presentation of documents that
appear on their face to be in substantial compliance with the terms of
such Letter of Credit or Bank Guaranty;
(B) the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit or Bank Guaranty; and
(C) this clause (g)(ii) shall establish the standard of care to
be exercised by the Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit or Bank Guaranty
comply with the terms thereof (and the parties hereto hereby waive, to
the extent permitted by applicable law, any standard of care
inconsistent with the foregoing).
(h) DISBURSEMENT PROCEDURES. The Issuing Lender shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under any Letter of Credit or Bank Guaranty. The Issuing Lender shall
promptly notify the Administrative Agent and CML by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Lender has made or
will make an LC Disbursement or Bank Guaranty Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Borrowers of their obligation to reimburse the Issuing Lender and the Revolving
Credit Lenders with respect to any such LC Disbursement or Bank Guaranty
Disbursement.
(i) INTERIM INTEREST. If the Issuing Lender shall make any LC Disbursement
or Bank Guaranty Disbursement in respect of any Letter of Credit or any Bank
Guaranty, as the case may be, then, unless the Borrowers shall reimburse such LC
Disbursement in full on the date of such LC Disbursement or such Bank Guaranty
Disbursement in full on the date of such Bank Guaranty Disbursement, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement or Bank Guaranty Disbursement is made to but excluding the
date that the Borrowers reimburse such LC Disbursement or Bank Guaranty
Disbursement, at the rate per annum then applicable to Revolving Credit Base
Rate Loans; provided that, if the Borrowers fail to reimburse such LC
Disbursement or Bank Guaranty
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Disbursement when due pursuant to paragraph (f) of this Section 2.4, then
interest calculated in accordance with Section 2.12(c) shall accrue on the
unpaid amount thereof. Interest accrued pursuant to this paragraph shall be for
the account of the Issuing Lender, except that interest accrued on and after the
date of payment by any Revolving Credit Lender pursuant to paragraph (f) of this
Section 2.4 to reimburse the Issuing Lender shall be for the account of such
Lender to the extent of such payment.
(j) CASH COLLATERALIZATION. If either (i) an Event of Default shall occur
and be continuing and the Borrowers receive notice from the Administrative Agent
or the Required Revolving Credit Lenders demanding the deposit of cash
collateral pursuant to this paragraph, or (ii) the Borrowers shall be required
to provide cover for LC Exposure and any Bank Guaranty pursuant to Section
2.9(a) or 2.10(b), the Borrowers shall immediately deposit with the Issuing
Lender an amount in cash equal to, in the case of an Event of Default, the LC
Exposure and the amount of any Bank Guaranty as of such date plus any accrued
and unpaid interest thereon and, in the case of cover pursuant to Section 2.9(a)
or 2.10(b), the amount required under Section 2.9(a) or 2.10(b), as the case may
be; provided that the obligation to deposit cash collateral in an amount equal
to the LC Exposure and the amount of any Bank Guaranty plus any accrued and
unpaid interest thereon shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to any Credit
Party described in clause (g) or (h) of Section 8.1. Such deposit shall be held
by the Issuing Lender as collateral in the first instance for the LC Exposure or
Bank Guaranty under this Agreement and thereafter for the payment of any other
obligations of the Credit Parties hereunder.
2.5 FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan denominated in Dollars (other than a
Swing Loan) to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds of its Applicable Percentage of such
Loan by 1:00 p.m., Boston, Massachusetts time or, in the case of same-day
Borrowings, 2:00 p.m., Boston, Massachusetts time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the
Borrowers by promptly crediting the amounts so received, in like funds, to an
account of the Borrowers maintained with the Administrative Agent in Boston,
Massachusetts and designated by CML in the applicable Borrowing Request;
provided that Revolving Credit Loans made to finance the reimbursement of an LC
Disbursement under any Letter of Credit as provided in Section 2.4(e) shall be
remitted by the Administrative Agent to the Issuing Lender and Revolving Credit
Base Rate Loans made to finance the refunding of Swing Loans as provided in
Section 2.8(d)(i) shall be remitted by the Administrative Agent to the Swing
Loan Lender.
(b) FUNDING AND PARTICIPATION IN ALTERNATIVE CURRENCY LOANS AND LOANS TO
SPECIAL CREDIT PARTIES.
(i) Subject to the provisions of this Section 2.5(b), only the
Administrative Agent shall fund Alternative Currency Loans. For purposes of
determining the amount of each Lender's Commitment, Bank Guaranties shall be
treated as Alternative Currency
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Loans under this Section 2.5(b) and each Lender has agreed to fund the
Obligations under each such Bank Guaranty as if it were a Alternative Currency
Loan hereunder. If the Administrative Agent is unable to fund any Alternative
Currency Loan, because of conditions described in Section 2.14, then the
Administrative Agent may, in its sole discretion, designate one of the Lenders
(with such Lender's prior written consent) to fund such Alternative Currency
Loan. If the Administrative Agent is unable to designate any of the Lenders to
fund such Alternative Currency Loan due to circumstances applying to the Lenders
described under Section 2.14, then the Administrative Agent shall so notify the
Borrowers and the Borrowers may request a Loan in a different Alternative
Currency or in Dollars. If Alternative Currency Loans are to be made by a Lender
other than the Administrative Agent, such Lender shall wire transfer immediately
available funds in such Alternative Currency by 11:00 a.m., Boston,
Massachusetts time, on the date such Alternative Currency Loan is to be funded,
to the account of the Administrative Agent most recently designated by it for
such purpose by notice to such Lender or to a depository account designated by
the Administrative Agent. The Administrative Agent will make such Loans
available to the Borrowers by promptly crediting the amounts so received, in
like funds, to an account of the Borrowers maintained with the Administrative
Agent in Boston, Massachusetts or such depository account as may have been
designated by the Borrowers in the applicable Borrowing Request.
(ii) Subject to the provisions of this Section 2.5 (b), all Loans to or for
the benefit of Special Credit Parties shall be Alternative Currency Loans and
shall be made by the Administrative Agent. If the Administrative Agent is unable
to fund any Alternative Currency Loan to or for the benefit of any Special
Credit Party, because of conditions described in Section 2.14, then the
Administrative Agent may, in its sole discretion, designate one of the Lenders
to fund such Alternative Currency Loan. If the Administrative Agent is unable to
designate any of the Lenders to fund such Alternative Currency Loan due to
circumstances applying to the Lenders described under Section 2.14, then the
Administrative Agent shall so notify the Special Credit Party and subject to the
prior approval of the Administrative Agent, such Special Credit Party may
request a Loan in a different Alternative Currency or in Dollars. If Alternative
Currency Loans are to be made by a Lender other than the Administrative Agent,
such Lender shall wire transfer immediately available funds in such Alternative
Currency by 11:00 a.m., Boston, Massachusetts time, on the date such Alternative
Currency Loan is to be funded, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to such Lender or to a
depository account designated by the Administrative Agent. The Administrative
Agent will make such Loans available to the Special Credit Party by promptly
crediting the amounts so received, in like funds, to an account of the Borrowers
maintained with the Administrative Agent in Boston, Massachusetts or such
depository account as may have been designated by such Special Credit Party in
the applicable Borrowing Request.
(iii) Upon making or continuing an Alternative Currency Loan to the
Borrowers or any Special Credit Party, each of the Administrative Agent or the
Lender who made any such Alternative Currency Loan (without any further action
on the part of the Administrative Agent or such Lender) hereby grants to each
Revolving Credit Lender,
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and each Revolving Credit Lender hereby acquires from the Administrative Agent
or any such Lender, a participation in each such Alternative Currency Loan in an
amount equal to such Revolving Credit Lender's Applicable Percentage of the
principal amount of such Alternative Currency Loan. In consideration and in
furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Administrative Agent or the Lender making or continuing such Alternative
Currency Loan, such Revolving Credit Lender's Applicable Percentage of any
amount not repaid by the Borrowers or the Special Credit Parties under each
Alternative Currency Loan at maturity or upon acceleration as provided in
Section 8 hereof, or of any reimbursement payment required to be refunded to the
Borrowers or the Special Credit Parties, as the case may be, for any reason.
Each Revolving Credit Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Alternative
Currency Loans is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any continuation or extension of any
Alternative Currency Loan or the occurrence and continuance of a Default or
reduction or termination of the Revolving Credit Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(iv) The Administrative Agent or the Lender making any Alternative Currency
Loan shall distribute to the Lenders in accordance with each Revolving Credit
Lender's Applicable Percentage the Applicable Margin for LIBOR Borrowings paid
by the Borrowers or the Special Credit Parties, as applicable, under each
Alternative Currency Loan. Each Alternative Currency Loan shall in all other
respects be a Revolving Credit Borrowing for purposes of this Agreement.
(v) Each of the Revolving Credit Lenders and the Special Credit Parties
acknowledge and agree that any Alternative Currency Loan made, directly or
indirectly through another Credit Party, to any Special Credit Party shall be
limited as follows:
a. The amount of all Revolving Loans to Special Credit Parties shall
be limited as provided in Section 2.1.
b. No Loan to a Special Credit Party may mature after the Revolving
Credit Maturity Date.
c. To the extent permitted by applicable local law, each such Loan
shall be secured by the assets of the applicable Special Credit Party and
the Collateral securing such Loans shall only secure such Loans unless the
Special Credit Party enters into a Guaranty in favor of the Lenders with
respect to all of the Revolving Credit Loans, but in no circumstance shall
any Special Credit Party guaranty the repayment of the Sylvania Acquisition
Loan.
d. No default or event of default under any Guaranty by a Special
Credit Party in favor of the Lenders shall be a Default under the
underlying Loan
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Documents directly with each such Special Credit Party unless specifically
provided in such Loan Documents.
e. In the case of any indirect Alternative Currency Loan to a Special
Credit Party through another Credit Party, such Loans shall be on terms
identical to the terms, in the opinion of the Administrative Agent, of the
Alternative Currency Loans from the Lenders to such Credit Party (including
acceleration for nonperformance) and all documents and Liens relating to
such Loan shall be assigned to the Administrative Agent for the benefit of
the Lenders on terms satisfactory to the Administrative Agent.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing (other than a Swing Loan
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender's Applicable Percentage of such Borrowing, the Administrative Agent
may assume that such Lender has made such Applicable Percentage of such
Borrowing available on such date in accordance with paragraph (a) of this
Section 2.5 and may, in reliance upon such assumption, make available to the
Borrowers a corresponding amount. In such event, if a Lender has not in fact
made its Applicable Percentage of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrowers severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrowers to but excluding the date of payment
to the Administrative Agent, at the Federal Funds Effective Rate. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
(d) Notwithstanding any other provisions of this Agreement, all payments in
respect of Alternative Currency Loans by or to any Lender (other than the
funding of Alternative Currency Loans by the Administrative Agent or a Lender
designated under Section 2.5(b)(i)) shall be in the amount of immediately
available funds equal to the Dollar Amount of such Alternative Currency Loan
payment.
2.6 INTEREST ELECTIONS.
(a) Each Borrowing (other than a Swing Loan Borrowing) initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a
LIBOR Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrowers may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a LIBOR
Borrowing, may elect Interest Periods therefor, all as provided in this Section
2.6; provided however, that notwithstanding any other provision of this Section
2.6, no Swing Loan shall be converted from a Base Rate Borrowing to a LIBOR
Borrowing. The Borrowers may elect different options for continuations and
conversions with respect to different portions of the affected Borrowing, in
which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
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(b) To make an election pursuant to this Section 2.6, CML or as to Loans
made directly to Special Credit Parties, the Special Credit Party shall notify
the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.3 if the Borrowers were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by CML.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election Request applies and,
if different options for continuations or conversions are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a Base Rate Borrowing
or a LIBOR Borrowing; and
(iv) if the resulting Borrowing is a LIBOR Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a LIBOR Borrowing but does not
specify an Interest Period, then the Borrowers shall be deemed to have selected
an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each affected Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrowers fail to deliver a timely Interest Election Request
prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period (i)
with respect to a LIBOR Borrowing denominated in Dollars, such Borrowing shall
be converted to a Base Rate Borrowing or (ii) with respect to a LIBOR Borrowing
denominated in an Alternative Currency, such Borrowing shall be converted to a
Borrowing at the "base rate" for such Alternative Currency announced by the
Administrative Agent or its corresponding bank in its head office located in the
jurisdiction which issues such Alternative Currency. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Revolving Credit
Lenders, so notifies the Borrowers, then, so long as an Event of Default is
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continuing (i) no outstanding Borrowing may be converted to or continued as a
LIBOR Borrowing and (ii) unless repaid, each LIBOR Borrowing denominated in
Dollars shall be converted to a Base Rate Borrowing at the end of the Interest
Period applicable thereto.
2.7 TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, the Revolving Credit Commitments shall
terminate at the close of business on the Revolving Credit Maturity Date.
(b) The Borrowers may at any time terminate, or from time to time reduce,
the Revolving Credit Commitments or the Swing Loan Sublimit upon at least five
(5) Business Days prior written notice to the Administrative Agent; provided
that (i) each reduction of the Revolving Credit Commitments shall be in an
amount that is at least equal to $5,000,000 or any greater multiple of
$1,000,000, and (ii) the Borrowers shall not terminate or reduce (x) the
Revolving Credit Commitments if, after giving effect to any concurrent repayment
of the Loans in accordance with Section 2.9 or prepayment of the Loans in
accordance with Section 2.10, the total Revolving Credit Exposures would exceed
the total Revolving Credit Commitments or (y) the Swing Loan Sublimit if, after
giving effect to any concurrent repayment of the Swing Loans in accordance with
Section 2.9 or prepayment of the Loans in accordance with Section 2.10, the
aggregate principal amount of outstanding Swing Loans would exceed the Swing
Loan Sublimit, after giving effect to such termination or reduction.
(c) The Borrowers shall notify the Administrative Agent of any election to
terminate or reduce Revolving Credit Commitments or the Swing Loan Sublimit
under paragraph (b) of this Section 2.7 at least five Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrowers pursuant to this Section 2.7 shall be
irrevocable; provided that a notice of termination of Revolving Credit
Commitments or the Swing Loan Sublimit or both delivered by the Borrowers may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrowers (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of Revolving Credit
Commitments shall be permanent. Each reduction of Revolving Credit Commitments
shall be made ratably among the Revolving Credit Lenders in accordance with
their respective Revolving Credit Commitments.
2.8 SWING LOAN FACILITY.
(a) THE SWING LOAN. Subject to the terms and conditions hereinafter set
forth, upon notice by the Borrowers made to the Swing Loan Lender in accordance
with Section 2.8(b)(i) or as determined by the Swing Loan Lender to avoid
overdrawing Borrowers' account with the Swing Loan Lender in accordance with
Section 2.8(b)(ii) or to reimburse itself with respect to indemnification
obligations pursuant to Section 2.8(b)(iii), the Swing Loan Lender hereby agrees
to make Swing Loans to the Borrowers from time to time on any Business Day
during the period between the Effective Date and the Business Day immediately
prior to the expiration of the Revolving Credit Availability Period in an
aggregate principal amount not to exceed the Swing
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Loan Sublimit, and the Swing Loans shall be payable with interest accrued
thereon on such Business Day immediately prior to the expiration of the
Revolving Credit Availability Period. Amounts borrowed by the Borrowers under
this Section 2.8 may be repaid and reborrowed, subject to the conditions hereof.
Unless otherwise specifically set forth herein, Swing Loans shall constitute the
use of the Swing Loan Lender's Revolving Credit Commitment. Notwithstanding any
other provisions of this Agreement and in addition to the Swing Loan Sublimit
limitation set forth above (a) at no time shall the sum of (i) the aggregate
principal amount of all outstanding Swing Loans (after giving effect to all
amounts requested and the application of the proceeds thereof) PLUS (ii) the
aggregate principal amount of all outstanding Revolving Credit Loans (after
giving effect to all amounts requested and the application of the proceeds
thereof), PLUS (iii) the aggregate of LC Exposure and Bank Guaranties, exceeds
the aggregate amount of the Revolving Credit Commitments of all the Lenders and
(b) at no time shall the aggregate Revolving Credit Exposure of the Swing Loan
Lender (both in its capacity as the Swing Loan Lender and in its capacity as a
Revolving Credit Lender) exceed its Revolving Credit Commitment (in its capacity
as a Revolving Credit Lender); PROVIDED, HOWEVER, that subject to the
limitations set forth in this Section 2.8(a) from time to time the ratio of (x)
the sum of the aggregate Revolving Credit Exposure of the Swing Loan Lender
(both in its capacity as the Swing Loan Lender and in its capacity as a
Revolving Credit Lender) to (y) the sum of the aggregate Revolving Credit
Exposure of all Lenders (including the Swing Loan Lender both in its capacity as
the Swing Loan Lender and in its capacity as a Revolving Credit Lender) may
exceed its Applicable Percentage.
(b) REQUESTS FOR SWING LOANS.
(i) When the Borrowers desire the Swing Loan Lender to make a Swing
Loan, CML shall send to the Administrative Agent and the Swing Loan Lender
a written request (or telephonic notice, if thereafter promptly confirmed
in writing) (a "SWING LOAN REQUEST"), which request shall set forth (x) the
principal amount of the proposed Swing Loan, and (y) the proposed date of
Borrowing of such Swing Loan. Each such Swing Loan Request must be received
by the Swing Loan Lender not later than 1:00 p.m. (Boston, Massachusetts
time) on the proposed date of Borrowing of the Swing Loan being requested.
Each Swing Loan Request shall be irrevocable and binding on the Borrowers
and shall obligate the Borrowers to borrow the Swing Loan from the Swing
Loan Lender on the proposed date of Borrowing. Upon satisfaction of the
applicable conditions set forth in this Agreement, on the proposed date of
Borrowing the Swing Loan Lender shall make the Swing Loan available to the
Borrowers by crediting the amount of the Swing Loan to the Borrowers'
account with the Swing Loan Lender.
(ii) On each Business Day, the Swing Loan Lender shall determine the
balance of the Borrowers' accounts with the Swing Loan Lender at 3:00 p.m.
(Boston, Massachusetts time), and to the extent any such account would
otherwise be overdrawn, the Borrowers hereby authorize the Swing Loan
Lender to make a Swing Loan. Upon satisfaction of the applicable conditions
set forth in this Agreement, at or before the close of business on such
date on such Business Day the Swing Loan Lender shall make the Swing Loan
available to the Borrowers by crediting the amount of the Swing Loan to the
Borrowers' account with the Swing Loan Lender.
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(iii) On any Business Day on which the Swing Loan Lender shall be
required to pay any amount to any Person with respect to any
indemnification required to be given by such Swing Loan Lender as a
condition of release of any of the Existing Credit Agreements, the
Borrowers hereby authorize the Swing Loan Lender to make a Swing Loan and
to reimburse itself from the proceeds thereof.
(iv) Notwithstanding the foregoing, the Swing Loan Lender shall not
advance any Swing Loans after it has received notice from any Lender or any
Credit Party that a Default has occurred and stating that no new Swing
Loans are to be made until such Default has been cured or waived in
accordance with the provisions of this Agreement.
(c) INTEREST ON SWING LOANS. Each Swing Loan shall be a Base Rate Loan and,
except as otherwise provided in Section 2.12, shall bear interest for the
account of the Swing Loan Lender thereof until repaid in full at the rate per
annum equal to the Base Rate PLUS the Applicable Margin for Base Rate Loans. The
Borrowers promise to pay interest on the Swing Loans in arrears on each Interest
Payment Date with respect thereto. All such interest payable with respect to the
Swing Loans shall be payable for the account of the Swing Loan Lender except the
overdraft pursuant to the Sterling Overdraft Facility shall bear interest for
the account of the Swing Loan Lender thereof until repaid in full at the rate
per annum equal to the Base Rate (as set forth in clause (i) of the definition
thereof) PLUS the Applicable Margin for LIBOR Loans PLUS 0.25%.
(d) REFUNDINGS OF SWING LOANS; PARTICIPATIONS IN SWING LOANS.
(i) Except for Swing Loans made pursuant to Section 2.8(e), the Swing
Loan Lender, at any time in its sole and absolute discretion, may, on
behalf of the Borrowers (which hereby irrevocably directs the Swing Loan
Lender to act on its behalf) request each Revolving Credit Lender,
including BankBoston, in its capacity as a Revolving Credit Lender, to make
a Revolving Credit Loan in an amount equal to such Revolving Credit
Lender's Applicable Percentage of the amount of the Swing Loans (the
"REFUNDED SWING LOANS") outstanding on the date such notice is given.
Unless any of the Events of Default described in Section 8.1(g), (h) or (i)
shall have occurred (in which event the procedures of Section 2.8(d)(ii)
shall apply) each Revolving Credit Lender shall make the proceeds of its
Revolving Credit Loan available to the Administrative Agent, for the
account of the Swing Loan Lender, at the Administrative Agent's Head Office
prior to 11:00 a.m. Boston, Massachusetts time in funds immediately
available on the Business Day next succeeding the date such notice is
given. The proceeds of such Revolving Credit Loans shall be immediately
applied to repay the Refunded Swing Loans.
(ii) If, prior to the making of a Revolving Credit Loan pursuant to
Section 2.8(d)(i), an Event of Default described in Section 8.1(g), (h) or
(i) shall have occurred, each Revolving Credit Lender will, on the date
such Revolving Credit Loan was to have been made, purchase an undivided
participation interest in the Refunded Swing Loan in an amount equal to its
Applicable Percentage of such Refunded Swing Loan. Each Revolving Credit
Lender will immediately transfer to the Swing Loan
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Lender, in immediately available funds, the amount of its participation in
such Refunded Swing Loan.
(iii) Whenever, at any time after the Swing Loan Lender has received
from any Revolving Credit Lender such Revolving Credit Lender's
participation interest in a Refunded Swing Loan pursuant to Section
2.8(d)(ii) above, the Swing Loan Lender receives any payment on account
thereof, the Swing Loan Lender will distribute to such Revolving Credit
Lender its participation interest in such amount (appropriately adjusted,
in the case of interest payments, to reflect the period of time during
which such Revolving Credit Lender's participation interest was outstanding
and funded); provided, however, that in the event that such payment
received by the Swing Loan Lender is required to be returned, such
Revolving Credit Lender will return to the Swing Loan Lender any portion
thereof previously distributed by the Swing Loan Lender to it as such
payment is required to be returned by the Swing Loan Lender.
(iv) If any Revolving Credit Lender does not make available to the
Swing Loan Lender any amounts for the purpose of refunding a Swing Loan
pursuant to Section 2.8(d)(i) above or to purchase a participation interest
in a Swing Loan pursuant to Section 2.8(d)(ii) above (any such amounts
payable by any Revolving Credit Lender being referred to herein as
"REFUNDING OR PARTICIPATION AMOUNTS") on the applicable due date with
respect thereto, then the applicable Revolving Credit Lender shall pay to
the Swing Loan Lender forthwith on demand such Refunding or Participation
Amounts with interest thereon for each day from and including the date such
amount is made available to the Swing Loan Lender but excluding the date of
payment to the Swing Loan Lender, at the Federal Funds Effective Rate. If
such Lender pays such amount to the Swing Loan Lender, then such amount
shall constitute such Revolving Credit Lender's Loan included in such
refunding Borrowing or the consideration for the purchase of such
participation interest, as the case may be.
(v) The failure or refusal of any Revolving Credit Lender to make
available to the Swing Loan Lender at the aforesaid time and place the
amount of its Refunding or Participation Amounts (x) shall not relieve any
other Revolving Credit Lender from its several obligations hereunder to
make available to the Swing Loan Lender the amount of such other Revolving
Credit Lender's Refunding or Participation Amounts and (y) shall not impose
upon such other Revolving Credit Lender any liability with respect to such
failure or refusal or otherwise increase the Revolving Credit Commitment of
such other Revolving Credit Lender.
(vi) Each Revolving Credit Lender severally agrees that its obligation
to make available to the Swing Loan Lender its Refunding or Participation
Amount as described above shall (except to the extent expressly set forth
in Section 2.8(d)(iv)) be absolute and unconditional and shall not be
affected by any circumstance, including (v) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Credit Lender may
have against the Swing Loan Lender, the Borrowers or any other Person for
any reason whatsoever, (w) the occurrence or continuance of any Default,
the termination of the Revolving Credit Commitments or any other condition
precedent whatsoever, (x) any
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adverse change in the condition (financial or otherwise) of any Credit
Party or any other Person, (y) any breach of any of the Loan Documents by
any of the Credit Parties or any other Lender, or (z) any other
circumstance, happening or event, whether or not similar to any of the
foregoing.
(e) Subject to the restrictions on Alternative Currency Loans described in
Section 2.1 and the Swing Loan Sublimit, the Swing Loan Lender hereby agrees to
provide overdrafts to Badalex Limited ("BADALEX") denominated in Sterling (the
"STERLING OVERDRAFT FACILITY"); provided that the aggregate amount of any such
overdrafts pursuant to this subsection (e) shall not exceed $1,000,0000 in
Dollar Amount. Badalex hereby unconditionally promises to pay in Sterling (i) to
the Swing Loan Lender the then unpaid principal amount of such Lender's Sterling
Overdraft Facility Swing Loans on the Revolving Credit Maturity Date and (ii)
interest on the Sterling Overdraft Facility Swing Loans monthly in arrears on
the last day of each month with respect thereto. All such interest payable with
respect to the overdrafts shall be payable for the account of the Swing Loan
Lender.
2.9 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrowers hereby unconditionally promise to pay to the
Administrative Agent for the account of each Revolving Credit Lender the Dollar
Amount of the then unpaid principal amount of such Lender's Revolving Credit
Loans (including any Alternative Currency Loan), on the Revolving Credit
Maturity Date. The Special Credit Parties shall repay Loans as provided in the
Loan Documents with each such Special Credit Party. In addition, if following
any reduction in the Revolving Credit Commitments or at any other time the
aggregate principal amount of the Revolving Credit Exposure shall exceed the
Dollar Amount of the aggregate Revolving Credit Commitments, the Borrowers shall
first, to the extent required by the following sentence, repay the Swing Loans,
but only to such extent, second, to repay the Sylvania Acquisition Loan, third
to repay the Revolving Credit Loans (including any Alternative Currency Loans),
fourth, repay any remaining Swing Loans, and fifth, provide cover for LC
Exposure and the Bank Guaranties as specified in Section 2.4(j) in an aggregate
amount equal to such excess. If at any time either (a) the aggregate principal
amount of Swing Loans outstanding exceeds the lowest of (i) the Swing Loan
Sublimit or (ii) the Swing Loan Lender's Applicable Percentage of the total
Revolving Credit Commitment at such time or (b) the Swing Loan Lender's
Revolving Credit Exposure at such time exceeds the Swing Loan Lender's
Applicable Percentage of the total Revolving Credit Commitment at such time
after application of any reduction in the Revolving Credit Commitment, then the
Borrowers shall forthwith repay the Swing Loans then outstanding in an amount
equal to such excess, together with accrued interest.
(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 (or in the case of Swing Loans, the Swing Loan
Lender) 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
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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 (c)
or (d) of this Section 2.9 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 prepare, 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) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.4) 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).
2.10 PREPAYMENT OF LOANS.
(a) OPTIONAL PREPAYMENTS. The Borrowers shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to
prior notice in accordance with paragraph (d) of this Section 2.10 and, with
respect to LIBOR Loans, subject to Section 2.15(a) hereof; provided that any
such prepayment shall be first applied to the outstanding amount of the Sylvania
Acquisition Loan and when the Sylvania Acquisition Loan is paid in full any such
additional prepayment shall be applied to the other Obligations. Prepayments by
Special Credit Parties shall be governed by the Loan Documents with each such
Special Credit Party; provided that no prepayment by any Sylvania Company shall
be applied to the Sylvania Acquisition Loan.
(b) MANDATORY PREPAYMENTS. The Borrowers and Special Credit Parties, to the
extent any of the following apply to the Special Credit Parties, (provided that
any such payments shall be applied only to Obligations due specifically from
such Special Credit Parties, except to the extent any such Special Credit Party
may Guaranty the Obligations hereunder) shall make prepayments of the Loans in
the order of priority and with the restrictions provided in Section 2.10 (a)
(and reduce the Commitments hereunder) as follows:
(i) CASUALTY EVENTS. Within 90 days following the receipt by any
Credit Party of the proceeds of insurance, condemnation award or other
compensation in respect of any Casualty Event affecting any property of any
Credit Party (or upon such earlier date as such Credit Party, as the case
may be, shall have determined not to repair or replace the property
affected by such Casualty Event), the Borrowers shall prepay the Loans (and
provide cover for LC Exposure and the Bank Guaranties as specified in
Section 2.4(j)), and the Revolving Credit Commitments shall be subject to
automatic reduction, in an aggregate amount, if any, equal to 100% of the
Net Cash Payments from such Casualty
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Event not theretofore applied or committed to be applied to the repair or
replacement of such property (it being understood that if Net Cash Payments
committed to be applied are not in fact applied within twelve months of the
respective Casualty Event, then such proceeds shall be applied to the
prepayment of Loans, cover for LC Exposure and the Bank Guaranties and
reduction of Revolving Credit Commitments as provided in this clause (i) at
the expiration of such twelve-month period) but only if and to the extent
that the aggregate amount of such proceeds received after the Effective
Date on account of all Casualty Events is greater than $500,000 in excess
of the aggregate amount applied or committed to be applied after the
Effective Date to the repair or replacement of such property, such
prepayment and reduction to be effected in each case in the manner and to
the extent specified in clause (iv) of this Section 2.10(b).
(ii) INCURRENCE OF DEBT OR OFFERING OF EQUITY. Without limiting the
obligation of the Borrowers to obtain the consent of the Required Revolving
Credit Lenders to any incurrence of Indebtedness or sale of equity
securities not otherwise permitted hereunder, the Borrowers agree, on or
prior to the closing of any incurrence of debt pursuant to Section 7.1(h)
or sale of equity securities by any Credit Party to deliver to the
Administrative Agent a statement certified by a Financial Officer, in form
and detail reasonably satisfactory to the Administrative Agent, of the
estimated amount of the Net Cash Payments of such incurrence of debt or
sale of equity securities that will (on the date of such incurrence or
sale) be received by any Credit Party in cash and the Borrowers will prepay
the Loans hereunder (and provide cover for LC Exposure and the Bank
Guaranties as specified in Section 2.4(j)), and the Revolving Credit
Commitments hereunder shall be subject to automatic reduction, upon the
date from such incurrence of debt or sale of securities, in an aggregate
amount equal to 100% of such estimated amount of the Net Cash Payments from
such incurrence of debt or 50% of such estimated amount of the Net Cash
Payments from such sale of equity securities received by any Credit Party,
such prepayment and reduction to be effected in each case in the manner and
to the extent specified in clause (iv) of this Section 2.10(b).
(iii) SALE OF ASSETS. Without limiting the obligation of the Borrowers
to obtain the consent of the Required Revolving Credit Lenders to any
Disposition not otherwise permitted hereunder, the Borrowers agree, on or
prior to the occurrence of any Disposition by any Credit Party, to deliver
to the Administrative Agent a statement certified by a Financial Officer,
in form and detail reasonably satisfactory to the Administrative Agent, of
the estimated amount of the Net Cash Payments of such Disposition that will
(on the date of such Disposition) be received by any Credit Party in cash,
the Borrower will prepay the Loans hereunder (and provide cover for LC
Exposure and the Bank Guaranties as specified in Section 2.4(j)), and the
Revolving Credit Commitments hereunder shall be subject to automatic
reduction, as follows:
(x) upon the date of such Disposition, in an aggregate amount
equal to 100% of such estimated amount of the Net Cash Payments of
such Disposition, to the extent received by any Credit Party in cash
on the date of such Disposition (provided that the first $2,000,000 of
such Net Cash Payments in each fiscal year
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shall be applied to reduce the Sylvania Acquisition Loan and then
other Loans hereunder, but shall not reduce the total Revolving Credit
Commitments); and
(y) thereafter, on the date of receipt, to the extent any Credit
Party shall receive Net Cash Payments in cash under deferred payment
arrangements or Disposition Investments entered into or received in
connection with any Disposition, an amount equal to (A) 100% of the
aggregate amount of such Net Cash Payments MINUS (B) any transaction
expenses associated with Dispositions and not previously deducted in
the determination of Net Cash Payments PLUS (or MINUS, as the case may
be) (C) any other adjustment received or paid by any Credit Party
pursuant to the respective agreements giving rise to Dispositions and
not previously taken into account in the determination of the Net Cash
Payments.
Prepayment and reduction under each of the forgoing (x) or (y) to be
effected in each case in the manner and to the extent specified in
clause (iv) of this Section 2.10(b).
(iv) APPLICATION. Upon the occurrence of any of the events described
in the above paragraphs of this Section 2.10(b), the amount of the required
reductions and prepayments shall be applied to the Revolving Credit
Commitments ratably in accordance with the respective then-outstanding
aggregate amounts of such Revolving Credit Commitments and Loans; provided
that the Revolving Credit Commitments and Loans attributable to the
Sylvania Acquisition Loan shall be reduce first and then when repaid in
full other outstanding Loans and, then cover for LC Exposure, Bank
Guaranties and Loans to Special Credit Parties, in an amount equal to such
required reduction of Revolving Credit Commitments; provided that if as a
result of such reduction, either (x) the aggregate amount of the Revolving
Credit Exposure shall exceed the aggregate Revolving Credit Commitments or
a repayment of Swing Loans would be required by the second sentence of
Section 2.9(a), the Borrowers shall, first, to the extent required by the
second sentence of Section 2.9(a) repay Swing Loans, but only to such
extent, second, repay the Sylvania Acquisition Loan, third repay the other
Revolving Credit Loans (other than Swing Loans), fourth repay the remaining
Swing Loans, fifth, provide cover for LC Exposure and Bank Guaranties as
specified in Section 2.4(j) and sixth, provide cover for outstanding Loans
to Special Credit Parties, in an aggregate amount equal to such excess.
(c) NOTIFICATION OF PREPAYMENTS. The Borrowers shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a LIBOR Borrowing, not later than
11:00 a.m., Boston, Massachusetts time, three Business Days before the date of
prepayment or (ii) in the case of prepayment of a Base Rate Borrowing, not later
than 11:00 a.m., Boston, Massachusetts time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of Revolving Credit Commitments as
contemplated by Section 2.7, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.7.
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Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Revolving Credit Lenders of the contents
thereof. Each partial prepayment of any Borrowing under paragraph (a) of this
Section 2.10 shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.2.
(d) PREPAYMENTS ACCOMPANIED BY INTEREST. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.12 and any break funding
payment under Section 2.15.
2.11 FEES.
(a) The Borrowers agree to pay to the Administrative Agent for the account
of each Lender a commitment fee, which shall accrue on the daily average unused
amount of the respective Revolving Credit Commitments of such Lender during the
period from and including the Effective Date to but excluding the date on which
such Revolving Credit Commitment terminates at a rate per annum determined by
reference to the Leverage Ratio as at the end of the immediately preceding
fiscal quarter immediately preceding the delivery of the Compliance Certificate
but initially the Leverage Ratio shall be deemed to be greater than or equal to
2.50 but less than 3.25 to 1:
Range of
Leverage Ratio Commitment Fee (% per annum)
-------------- ----------------------------
Greater than or equal to 3.25 to 1 0.375%
Greater than or equal to
2.50 to 1 but less than 3.25 to 1 0.375%
Greater than or equal to
2.00 to 1 but less than 2.50 to 1 0.300%
Less than 2.00 to 1 0.250%
Accrued commitment fees shall be payable in arrears on each Quarterly Date
commencing on the first such date to occur after the date hereof and, in respect
of any Revolving Credit Commitments, on the date such Revolving Credit
Commitments terminate, commencing on the first such date to occur after the
Effective Date. All commitment fees shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day). For
purposes of determining the unused portion of each Lender's Commitment solely in
order to calculate the commitment fee under this Section 2.11(a), no Swing Loan
shall constitute the usage of any Lender's Revolving Credit Commitment.
(b) The Borrowers agree to pay with respect to Letters of Credit and Bank
Guaranties outstanding hereunder the following fees:
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(i) to the Administrative Agent for the account of each Revolving
Credit Lender a fee per annum equal to the Applicable Margin for LIBOR
Borrowings on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) and such Lender's Bank Guaranties during the period from and
including the Effective Date to but excluding the later of the date on
which such Lender's Revolving Credit Commitment terminates and the date on
which there shall no longer be any Letters of Credit or Bank Guaranties
outstanding hereunder, and
(ii) to the Issuing Lender (x) an annual fronting fee equal to the
product of 0.125% per annum TIMES the face amount of each Letter of Credit,
payable in arrears on each Quarterly Date, and (y) the Issuing Lender's
standard fees with respect to the issuance, amendment, renewal or extension
of any Letter of Credit or Bank Guaranty or processing of drawings
thereunder.
Accrued fees shall be payable in arrears on each Quarterly Date and on the date
the Revolving Credit Commitments terminate, commencing on the first such date to
occur after the date hereof, provided that any such fees accruing after the date
on which the Revolving Credit Commitments terminate shall be payable on demand.
All participation fees and fronting fees shall be computed on the basis of a
year of 365 days (or 366 days in a leap year) and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(c) The Borrowers agree to pay in Dollars with respect to Alternative
Currency Loans funded hereunder to the Administrative Agent or the Lender
providing the Alternative Currency Loan in accordance with Section 2.5(b) a
fronting fee equal to the Dollar Amount of the product of 0.125% TIMES the
original principal amount of such Alternative Currency Loan.
Accrued fees shall be payable in arrears on each Quarterly Date and on the date
the Revolving Credit Commitments terminate, commencing on the first such date to
occur after the date hereof, provided that any such fees accruing after the date
on which the Revolving Credit Commitments terminate shall be payable on demand.
All participation fees and fronting fees shall be computed on the basis of a
year of 365 days (or 366 days in a leap year) and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(d) The Borrowers agree to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed in
writing among the Borrowers and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds. Fees paid shall not be refundable under any
circumstances, absent manifest error in the determination thereof.
2.12 INTEREST.
(a) The Loans denominated in Dollars comprising each Base Rate Borrowing
shall bear interest at a rate per annum equal to the Adjusted Base Rate PLUS the
Applicable Margin.
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The overdrafts incurred in Sterling comprising each Sterling Overdraft Facility
Borrowing shall bear interest as provided in Section 2.8(e).
(b) The Loans comprising each LIBOR Borrowing shall bear interest at a rate
per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing PLUS the Applicable Margin.
(c) Notwithstanding the foregoing, (i) all amounts which are not paid when
due shall bear interest until paid in full at the Post-Default Rate and (ii)
during the period when any Event of Default shall have occurred and be
continuing for a period of 30 or more days (and the Administrative Agent, acting
on the instructions of the Required Revolving Credit Lenders, shall have
notified the Borrowers that the Post-Default Rate shall apply), the principal of
all Loans hereunder shall bear interest, after as well as before judgment, at
the Post-Default Rate.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued at the
Post-Default Rate shall be payable on demand, (ii) in the event of any repayment
or prepayment of any LIBOR Loan, accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment, (iii)
in the event of any conversion of any LIBOR Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion, (iv) all accrued interest on Revolving Credit
Loans and Swing Loans shall be payable upon expiration of the Revolving Credit
Commitments.
(e) All interest hereunder shall be computed on the basis of the Adjusted
LIBO Rate for a year of 365 days (or 366 days in a leap year), except that
interest computed by reference to Adjusted LIBO Rate or the Adjusted Base Rate
at times when the Adjusted Base Rate is based on the Federal Funds Rate shall be
computed on the basis of a year of 360 days, and in each case shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). The applicable Adjusted Base Rate, Adjusted LIBO Rate or LIBO Rate
shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
2.13 ALTERNATE RATE OF INTEREST. If prior to the commencement of any
Interest Period for a LIBOR Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) if such Borrowing is of a particular Class of Loans, the Administrative
Agent is advised by the Required Revolving Credit Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining
their Loans of such Class included in such Borrowing for such Interest Period;
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then the Administrative Agent shall give notice thereof to the Borrowers and the
affected Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrowers and such Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any such Borrowing to, or
continuation of any such Borrowing as, a LIBOR Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a LIBOR Borrowing, such Borrowing
shall be made as a Dollar Base Rate Borrowing.
2.14 INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
currency regulations or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Lender or limit their ability to provide the Borrower with Loans in
any Alternative Currency; or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or LIBOR
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation
to make any such Loan) or to increase the cost to such Lender or the Issuing
Lender of participating in, issuing or maintaining any Letter of Credit or to
reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), then the
Borrowers will pay to such Lender or the Issuing Lender, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Lender reasonably determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Lender's capital or
on the capital of such Lender's or the Issuing Lender's holding company, if any,
as a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued the
Issuing Lender, to a level below that which such Lender or the Issuing Lender or
such Lender's or the Issuing Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's or the Issuing
Lender's policies and the policies of such Lender's or the Issuing Lender's
holding company with respect to capital adequacy), then from time to time the
Borrowers will pay to such Lender or the Issuing Lender, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Lender, or such Lender's or the Issuing Lender's holding company, for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Lender setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Lender or
its holding company, as
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the case may be, as specified in paragraph (a) or (b) of this Section 2.14 shall
be delivered to the Borrowers and shall be conclusive so long as it reflects a
reasonable basis for the calculation of the amounts set forth therein and does
not contain any manifest error. The Borrowers shall pay such Lender or the
Issuing Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Lender to
demand compensation pursuant to this Section 2.14 shall not constitute a waiver
of such Lender's or the Issuing Lender's right to demand such compensation;
provided that the Borrowers shall not be required to compensate a Lender or the
Issuing Lender pursuant to this Section 2.14 for any increased costs or
reductions incurred more than six months prior to the date that such Lender or
the Issuing Lender, as the case may be, notifies the Borrowers of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
the Issuing Lender's intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the six-month period referred to above shall be extended to
include the period of retroactive effect thereof.
2.15 BREAK FUNDING PAYMENTS.
(a) In the event of (i) the payment of any principal of any LIBOR Loan
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (ii) the conversion of any LIBOR Loan other
than on the last day of the Interest Period applicable thereto, (iii) the
failure to borrow, convert, continue or prepay any LIBOR Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice is permitted to be revocable and is revoked in accordance herewith) or
(iv) the assignment of any LIBOR Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrowers pursuant to
Section 2.18, then, in any such event, the Borrowers shall compensate each
Lender for the loss, cost and expense attributable to such event.
(b) In the case of a LIBOR Loan, the loss to any Lender attributable to any
such event shall be deemed to include an amount determined by such Lender to be
equal to the excess, if any, of
(i) the amount of interest that such Lender would pay for a deposit
equal to the principal amount of such Loan for the period from the date of
such payment, conversion, failure or assignment to the last day of the then
current Interest Period for such Loan (or, in the case of a failure to
borrow, convert or continue, the duration of the Interest Period that would
have resulted from such borrowing, conversion or continuation) if the
interest rate payable on such deposit were equal to the Adjusted LIBO Rate
for such Interest Period,
OVER
(ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by
such Lender (or an affiliate of such
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Lender) for U.S. dollar deposits from other banks in the eurodollar market
at the commencement of such period.
(c) A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section 2.15 shall be
delivered to the Borrowers and shall be conclusive absent manifest error. The
Borrowers shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
2.16 TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrowers hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrowers shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.16) the Administrative Agent, Lender or the Issuing Lender
(as the case may be) receives 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
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify the Administrative Agent, each Lender and
the Issuing Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 2.16) paid by the Administrative Agent, such Lender or the Issuing
Lender, as the case may be (and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto during the period prior to the
Borrowers making the payment demanded under this paragraph (c)), whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrowers by a Lender or the
Issuing Lender, or by the Administrative Agent on its own behalf or on behalf of
a Lender or the Issuing Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrowers to a Governmental Authority, the Borrowers shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrowers are
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrowers (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrowers, such properly completed
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and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
2.17 PAYMENTS GENERALLY: PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) The Borrowers shall make each payment required to be made by each of
them hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or under Section 2.8, 2.14, 2.15 or 2.16, or otherwise) prior to
12:00 noon, Boston, Massachusetts time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at such of its offices in Boston, Massachusetts as shall be
notified to the relevant parties from time to time, except payments to be made
directly to the Issuing Lender as expressly provided herein and except that
payments pursuant to Sections 2.8, 2.14, 2.15, 2.16 and 10.3 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof, and the
Borrowers shall have no liability in the event timely or correct distribution of
such payments is not so made. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder under any circumstances,
including, without limitation during, or as a result of the exercise by the
Administrative Agent or the Lenders of remedies under the Collateral Documents
and applicable law, such funds shall be applied (i) first, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Except to the extent otherwise provided herein: (i) each borrowing of
Loans of a particular Class from the Lenders under Section 2.1 shall be made
from the relevant Lenders, each payment of commitment fee under Section 2.11 in
respect of Commitments of a particular Class shall be made for the account of
the relevant Lenders, and each termination or reduction of the amount of the
Commitments of a particular Class under Section 2.3 shall be applied to the
respective Commitments of such Class of the relevant Lenders, pro rata according
to the amounts of their respective Commitments of such Class; (ii) LIBOR Loans
of any Class having the same Interest Period shall be allocated pro rata among
the relevant Lenders according to the amounts of their Commitments of such Class
(in the case of the making of Loans) or their respective Loans of such Class (in
the case of conversions and continuations of Loans); (iii) each payment or
prepayment by the Borrowers of principal of Loans of a particular Class shall be
made for the account of the relevant Lenders pro rata in accordance with the
respective unpaid principal
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amounts of the Loans of such Class held by such Lenders; (iv) each payment by
the Borrowers of interest on Loans of a particular Class shall be made for
account of the relevant Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Lenders; and (v)
each payment by the Borrowers of participation fees in respect of Letters of
Credit shall be made for the account of the Revolving Credit Lenders pro rata in
accordance with the amount of participation fees then due and payable to the
Revolving Credit Lenders.
(d) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Loans (or participations in LC Disbursements) resulting in such Lender
receiving payment of a greater proportion of the aggregate principal amount of
its Loans (and participations in LC Disbursements) and accrued interest thereon
than the proportion of such amounts received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans (and LC Disbursements) of the other Lenders to the
extent necessary so that the benefit of such payments shall be shared by all the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans (and participations in LC
Disbursements); provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans (or participations in LC Disbursements) to any assignee or participant,
other than to any Credit Party or any subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrowers consent to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrowers rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrowers in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from the
Borrowers prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Lender entitled thereto (the
"APPLICABLE RECIPIENT") hereunder that the Borrowers will not make such payment,
the Administrative Agent may assume that the Borrowers have made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Applicable Recipient the amount due. In such event, if the
Borrowers have not in fact made such payment, then each Applicable Recipient
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Applicable Recipient with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(f) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.4(d), 2.4(e), 2.5(b), 2.8(d)(i) or (ii) or 2.17(e), then
the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Section or Sections until all such unsatisfied obligations are fully paid.
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2.18 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.14, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder, or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be,
in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrowers hereby agree to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.4), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrowers
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Credit Commitment is being assigned, the Issuing Lender), which
consents shall not unreasonably be withheld or delayed, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans (and participations in LC Disbursements), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrowers (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.14 or
payments required to be made pursuant to Section 2.16, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrowers to require such assignment and delegation cease to apply.
ARTICLE III
GUARANTY BY GUARANTORS
3.1 THE GUARANTY. Each Guarantor hereby jointly and severally guaranties to
each Lender, the Issuing Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to the Borrowers, all LC
Disbursements, all Bank Guaranty Disbursements and all other amounts from time
to time owing to the Lenders, the Issuing Lender or the Administrative Agent by
the Borrowers hereunder or under any other Loan Document, and all obligations of
the Borrowers to any Lender
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under any Hedging Agreement, in each case strictly in accordance with the terms
thereof (such obligations being herein collectively called the "GUARANTIED
OBLIGATIONS"). Notwithstanding anything in this Agreement to the contrary, if at
any time any of Sylvania Companies is a Guarantor hereunder Guarantied
Obligations, with respect to the Sylvania Companies only, shall specifically
exclude the Sylvania Acquisition Loan. In any event Guarantied Obligations shall
be limited by the laws of the jurisdiction governing each Guarantor; provided
that each Guarantor shall take all steps to put in place a guaranty in
accordance with the laws of the jurisdiction governing the Guarantor which
guaranties the Obligations to the fullest extent permitted by law. Each
Guarantor hereby further agrees that if the Borrowers shall fail to pay in full
when due (whether at stated maturity, by acceleration or otherwise) any of the
Guarantied Obligations, each Guarantor will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guarantied Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
3.2 OBLIGATIONS UNCONDITIONAL. Except to the extent the laws of any
jurisdiction would specifically limit the obligations of any Guarantor, the
obligations of each Guarantor under Section 3.1 are absolute and unconditional
irrespective of the value, genuineness, validity, regularity or enforceability
of this Agreement, the other Loan Documents or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guaranty of or security for any of the Guarantied Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 3.2 that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of the Guarantors
hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to such
Guarantors, the time for any performance of or compliance with any of the
Guarantied Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions hereof or of
the other Loan Documents or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guarantied Obligations shall be
accelerated, or any of the Guarantied Obligations shall be modified,
supplemented or amended in any respect, or any right hereunder or under the
other Loan Documents or any other agreement or instrument referred to
herein or therein shall be waived or any other guaranty of any of the
Guarantied Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
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(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent, the Issuing Lender or any Lender or Lenders as
security for any of the Guarantied Obligations shall fail to be perfected.
To the extent permitted under the law governing each such Guarantor, the
Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent, the Issuing Lender or any Lender exhaust any right, power or remedy or
proceed against the Borrowers hereunder or under the other Loan Documents or any
other agreement or instrument referred to herein or therein, or against any
other Person under other guaranty of, or security for, any of the Guarantied
Obligations.
3.3 REINSTATEMENT. The obligations of each Guarantor under this Article III
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Borrowers in respect of the Guarantied
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guarantied Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and each of the Guarantors agrees that it will
indemnify the Administrative Agent, the Issuing Lender and each Lender on demand
for all reasonable costs and expenses (including fees and expenses of counsel)
incurred by the Administrative Agent, any Lender or the Issuing Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
3.4 SUBROGATION. Each Guarantor hereby waives all rights of subrogation or
contribution, whether arising by contract or operation of law (including any
such right arising under the Federal Bankruptcy Code of 1978, as amended) or
otherwise by reason of any payment by it pursuant to the provisions of this
Article III and further agrees with the Borrowers for the benefit of each of its
creditors (including the Issuing Lender, each Lender and the Administrative
Agent) that any such payment by it shall constitute a contribution of capital by
such Guarantor to the Borrowers.
3.5 REMEDIES. Each Guarantor agrees that, as between such Guarantor and the
Lenders, the obligations of the Borrowers hereunder may be declared to be
forthwith due and payable as provided in Section 8.1 or Section 2.4(j), as
applicable (and shall be deemed to have become automatically due and payable in
the circumstances provided in Section 8.1 or Section 2.4(j), as applicable) for
purposes of Section 3.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrowers and that, in the event
of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Borrowers) shall forthwith become due and payable by such Guarantor for
purposes of Section 3.1.
3.6 INSTRUMENT FOR THE PAYMENT OF MONEY. Each Guarantor hereby acknowledges
that the guaranty in this Article III constitutes an instrument for the payment
of money, and consents and agrees that the Issuing Lender, any Lender or the
Administrative Agent, at its sole option, in the event of a dispute by the
Guarantors in the payment of any moneys due hereunder,
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shall have the right to summary judgment or such other expedited procedure as
may be available for a suit on a note or other instrument for the payment of
money.
3.7 CONTINUING GUARANTY. The guaranty in this Article III is a continuing
guaranty, and shall apply to all Guarantied Obligations whenever arising.
3.8 RIGHTS OF CONTRIBUTION. The Guarantors hereby agree, as between
themselves, that if any Guarantor shall become an Excess Funding Guarantor (as
defined below) by reason of the payment by such Guarantor of any Guarantied
Obligations, each other Guarantor shall, on demand of such Excess Funding
Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined below
and determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guarantied Obligations. The payment obligation of a
Guarantor to any Excess Funding Guarantor under this Section 3.8 shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Guarantor under the other provisions of this Article III and
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations.
For purposes of this Section 3.8, (i) "EXCESS FUNDING GUARANTOR" means, in
respect of any Guarantied Obligations, a Guarantor that has paid an amount in
excess of its Pro Rata Share of such Guarantied Obligations, (ii) "EXCESS
PAYMENT" means, in respect of any Guarantied Obligations, the amount paid by an
Excess Funding Guarantor in excess of its Pro Rata Share of such Guarantied
Obligations and (iii) "PRO RATA SHARE" means, for any Guarantor, the ratio
(expressed as a percentage) of (x) the amount by which the aggregate present
fair saleable value of all properties of such Guarantor (excluding any shares of
stock of, or ownership interest in, any other Guarantor) exceeds the amount of
all the debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder and any obligations of any other
Guarantor that have been Guarantied by such Guarantor) to (y) the amount by
which the aggregate fair saleable value of all properties of all of the Credit
Parties exceeds the amount of all the debts and liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of the Borrowers and the Guarantors hereunder and under the
other Loan Documents) of all of the Credit Parties, determined (A) with respect
to any Guarantor that is a party hereto on the Effective Date, as of the
Effective Date, and (B) with respect to any other Guarantor, as of the date such
Guarantor becomes a Guarantor hereunder.
3.9 GENERAL LIMITATION ON GUARANTY OBLIGATIONS. In any action or proceeding
involving any state or non-U.S. corporate law, or any state or Federal or
non-U.S. bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of any Guarantor under Section
3.1 would otherwise, taking into account the provisions of Section 3.8, be held
or determined to be void, invalid or unenforceable, or subordinated to the
claims of any other creditors, on account of the amount of its liability under
Section 3.1, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Lender, the Administrative Agent or any other Person, be
automatically limited and reduced to the highest amount that is
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valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
3.10 RELEASE OF COLLATERAL AND GUARANTIES. The Administrative Agent and the
Lenders agree that if all of the capital stock of any Guarantor that is owned by
the Credit Parties is sold to any Person as permitted by the terms of this
Agreement and the Collateral Documents, or if any Guarantor is merged or
consolidated with or into any other Person as permitted by the terms of this
Agreement and such Guarantor is not the continuing or surviving corporation, the
Administrative Agent shall, upon request of the Borrower (and upon the receipt
by the Administrative Agent of such evidence as the Administrative Agent or any
Lender may reasonably request to establish that such sale, designation, merger
or consolidation is permitted by the terms of this Agreement), terminate the
Guaranty of such Guarantor under this Article III and authorize the
Administrative Agent to release the Lien created by the Collateral Documents on
any capital stock of such Guarantor.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Credit Parties represents and warrants to the Lenders and the
Administrative Agent, as to itself and each other Credit Party, that:
4.1 ORGANIZATION; POWERS. Each Credit Party is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each Credit Party has all requisite power and authority under its
organizational documents to carry on its business as now conducted and, except
where the failure to be so qualified or in good standing, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
4.2 AUTHORIZATION; ENFORCEABILITY. The Transactions are within the
corporate power of each Credit Party and have been duly authorized by all
necessary corporate and, if required, stockholder action on the part of such
Credit Party. This Agreement has been duly executed and delivered by each Credit
Party and constitutes a legal, valid and binding obligation of such Credit
Party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, (b) will not violate any applicable law,
policy or regulation or the charter, by-laws or other organizational documents
of any Credit Party or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon any Credit Party, or any of its assets, or give rise to
a right thereunder to require any payment to be made by any Credit Party and (d)
except for the Liens created by the
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Collateral Documents, will not result in the creation or imposition of any Lien
on any asset of the Credit Parties.
4.4 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) The Borrowers have heretofore delivered to the Lenders the following
financial statements:
(i) the audited consolidated balance sheet and statements of earnings
(loss), stockholders' deficit and cash flows of CML and its Consolidated
Subsidiaries as of and for the fiscal years ended December 3, 1995 and
December 1, 1996, respectively, accompanied by an opinion of Ernst & Young
LLP, independent public accountants;
(ii) the unaudited consolidated balance sheet and statements of income
and cash flows of CML and its Consolidated Subsidiaries as of and for the
six-month period ended June 1, 1997, certified by a Financial Officer that
such financial statements fairly present (subject, in the case of such
balance sheet as at June 1, 1997 and such statements of income and cash
flows for the six months then ended, to normal year-end audit adjustments)
the consolidated financial condition of CML and its Consolidated
Subsidiaries as at such dates and the consolidated results of the
operations of CML and its Consolidated Subsidiaries for the periods ended
on such dates and that all such financial statements, including the related
schedules and notes thereto have been prepared in accordance with GAAP
applied consistently throughout the periods involved;
(iii) the audited consolidated balance sheet and statements of
earnings (loss), stockholders' deficit and cash flows of Sylvania and its
Consolidated Subsidiaries as of and for the fiscal year ended December 31,
1996;
(iv) the unaudited consolidated balance sheet and statements of and
cash flows of the Sylvania Companies as of and for the six-month period
ended June 30, 1997 (subject, in the case of such balance sheet as at June
30, 1997 and such statements of income and cash flows for the six months
then ended, to normal year-end audit adjustments);
(v) all related management letters from CML and its Consolidated
Subsidiaries from their independent public accountants;
(vi) the projected consolidated balance sheets and statements of
profit and loss and statements of cash flow for the fiscal years 1997
through 2001 (the "Projections"); and
(vii) the pro forma unaudited consolidated balance sheet and
statements of operations for the fiscal year 1997, and prepared by the
Borrowers under the assumption that the Sylvania Acquisition had occurred
at the beginning of the respective periods covered by such statements and
reflecting estimated purchase price accounting adjustments are accurate and
complete to the best of the Borrowers' knowledge.
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Such financial statements (except for the Projections) and management letters
present fairly, in all material respects, the respective actual or proforma
consolidated financial position and results of operations and cash flows of the
respective entities as of such respective dates and for such periods in
accordance with GAAP as to all U.S. Credit Parties or statements consolidated
and expressed in U.S. Dollars or other appropriate accounting standards as to
other financial statements, subject to year-end audit adjustments and the
absence of footnotes in the case of such unaudited or pro forma statements. The
Projections were prepared by the Borrowers in good faith and were based on
assumptions which were reasonable when made and which continue to be reasonable
on the date hereof.
(b) There has been no material adverse change in the business, assets,
operations, prospects or financial condition, of (i) the Credit Parties taken as
a whole since December 1, 1996, and (ii) Sylvania and its Subsidiaries since the
date of their most recent audited financial statements, except as disclosed by
Ernst and Young in reports submitted to the Administrative Agent prior to the
date hereof.
(c) None of the Credit Parties has on the date hereof any contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments in each case
that are material, except as referred to or reflected or provided for in the
balance sheets as at December 1, 1996 referred to above or as otherwise
expressly provided in this Agreement or the financial statements described in
this Section 4.4.
4.5 PROPERTIES.
(a) Each of the Credit Parties has good and marketable title to, or valid,
subsisting and enforceable leasehold interests in, all its real and personal
property material to its business.
(b) Each of the Credit Parties owns, or to its knowledge has acquired an
implied license to use, all trademarks, service marks, tradenames, copyrights,
patents and other intellectual property ("PROPRIETARY RIGHTS") which are
necessary for the conduct of its business in the manner that such businesses
have heretofore been conducted, including the computer software programs listed
on SCHEDULE 4.5 annexed hereto, and, to the knowledge of the Credit Parties, the
use thereof does not infringe upon the rights of any other Person, except for
such infringements that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect. No other Proprietary Rights
are necessary for the unimpaired continued operation of the Credit Parties'
businesses in the manner that such businesses heretofore have been conducted.
All such trademark applications and registrations, trademarks, registered
copyrights, patents and patent applications which are owned by or licensed to
any Credit Party are listed on SCHEDULE 4.5.
(c) As of the date hereof, SCHEDULE 4.5 contains a true, accurate and
complete list of (i) all owned Real Property Assets and (ii) all leases,
subleases or assignments of leases (together with all amendments, modifications,
supplements, renewals or extensions of any thereof) affecting each Real Property
Asset of any Credit Party, regardless of whether such Credit Party is the
landlord or tenant (whether directly or as an assignee or successor in interest)
under such
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lease, sublease or assignment. Expect as specified in SCHEDULE 4.5, each
agreement listed in clause (ii) of the immediately preceding sentence is in full
force and effect and the Borrowers have no knowledge of any default that has
occurred and is continuing thereunder, and each such agreement constitutes the
legal, valid and binding obligation of each applicable Credit Party, enforceable
against such Credit Party in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by equitable
principles.
4.6 LITIGATION AND ENVIRONMENTAL MATTERS.
(a) There are no actions, suits or proceedings by or before any arbitrator
or Governmental Authority pending against or, to the knowledge of any of the
Credit Parties, threatened against or affecting the Credit Parties (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Basic Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, none of the Credit Parties (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or any inquiry,
allegation, notice or other communication from any Governmental Authority
concerning its compliance with any Environmental Law or (iv) knows of any basis
for any Environmental Liability.
4.7 COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Credit Parties is in
compliance with all laws, regulations, policies and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
4.8 INVESTMENT AND HOLDING COMPANY STATUS. No Credit Party nor any of their
respective Subsidiaries is (a) an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940, as amended, (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended or (c) a "bank holding company"
as defined in, or subject to regulation under, the Bank Holding Company Act of
1956, as amended.
4.9 TAXES. Each of the Credit Parties and their respective Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Credit Party has set aside on its
books adequate reserves with respect thereto in accordance with GAAP or (b) to
the extent that the failure to do so could not reasonably be expected to result
in a Material Adverse Effect.
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4.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $100,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $100,000 the fair market value of
the assets of all such underfunded Plans.
4.11 DISCLOSURE. The Project Lightning Discussion Materials, a copy of
which previously has been delivered to each Lender and the Administrative Agent,
completely and accurately describes in all material respects the business,
principal properties and assets of the Credit Parties, including CML and
Sylvania. The Credit Parties have disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which any Credit Party is
subject, and all other matters known to any Credit Party, that, individually or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect. Notwithstanding the forgoing, all information in respect of Sylvania and
its Subsidiaries is limited to the materials presented to the Lenders and the
best knowledge of the Credit Parties (except to the extent Sylvania and its
Subsidiaries become Credit Parties). The management structure of CML after
giving effect to the Sylvania Acquisition is as set forth on SCHEDULE 4.11
annexed hereto. The information, reports, financial statements, exhibits and
schedules furnished in writing by or on behalf of the Credit Parties to the
Administrative Agent or any Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Basic Documents or
included herein or therein or delivered pursuant hereto or thereto, when taken
as a whole do not contain any untrue statement of material fact or omit to state
any material fact necessary to make the statements herein or therein, in light
of the circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Credit Parties to the
Administrative Agent and the Lenders in connection with this Agreement and the
other Basic Documents and the transactions contemplated hereby and thereby will
be true, complete and accurate in every material respect, or (in the case of
projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the Borrowers that
could reasonably be expected to have a Material Adverse Effect that has not been
disclosed herein, in the other Basic Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Administrative Agent for use in connection with the transactions
contemplated hereby or thereby.
4.12 CAPITALIZATION. As of the date hereof, the capital structure and
principal ownership (those parties holding more than 5% of the outstanding
shares of CML) of CML, both before and after giving effect to the Sylvania
Acquisition, are correctly described in SCHEDULE 4.12 annexed hereto. The
authorized, issued and outstanding capital stock of CML consists, on the date
hereof, of the common stock described on SCHEDULE 4.12, all of which is duly and
validly issued and outstanding, fully paid and nonassessable. Except as set
forth in SCHEDULE 4.12, as of the date hereof, (x) there are no outstanding
Equity Rights with respect to
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CML and (y) there are no outstanding obligations of any Credit Party to
repurchase, redeem, or otherwise acquire any shares of capital stock of any
Credit Party nor are there any outstanding obligations of any Credit Party to
make payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
any Credit Party.
4.13 SUBSIDIARIES.
(a) Set forth in SCHEDULE 4.13 annexed hereto is a complete and correct
list of all of the Subsidiaries of the Credit Parties as of the date hereof
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Upon the refinancing of the Existing Credit Agreements and the
release of the Liens related thereto, (x) each Credit Party and its respective
Subsidiaries owns, free and clear of Liens (other than Liens created pursuant to
the Collateral Documents), and has the unencumbered right to vote, all
outstanding ownership interests in each Person shown to be held by it in
SCHEDULE 4.13, (y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
(b) Except as set forth in SCHEDULE 4.13, as of the date of this Agreement,
none of the Subsidiaries of CML is subject to any indenture, agreement,
instrument or other arrangement containing any provision of the type described
in Section 7.8, other than any such provision the effect of which has been
unconditionally, irrevocably and permanently waived.
4.14 MATERIAL INDEBTEDNESS, LIENS AND AGREEMENTS.
(a) SCHEDULE 4.14 annexed hereto is a complete and correct list, as of the
date of this Agreement, of all Material Indebtedness or any extension of credit
(or commitment for any extension of credit) to, or guaranty by, any Credit Party
the aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) $750,000 (or the Alternative Currency Amount thereof), and the
aggregate principal or face amount outstanding or that may become outstanding
with respect thereto is correctly described in SCHEDULE 4.14.
(b) SCHEDULE 4.14 is a complete and correct list, as of the date of this
Agreement, of each Lien securing Indebtedness of any Person the aggregate
principal or face amount of which equals or exceeds (or may equal or exceed)
$100,000 and covering any property of the Credit Parties, and the aggregate
Indebtedness secured (or which may be secured) by each such Lien and the
Property covered by each such Lien is correctly described in SCHEDULE 4.14.
(c) SCHEDULE 4.14 is a complete and correct list, as of the date of this
Agreement, of each contract and arrangement to which any Credit Party is a party
for which breach, nonperformance, cancellation or failure to renew would have a
Material Adverse Effect.
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True and complete copies of each agreement listed on SCHEDULE 4.14 have been
delivered to the Administrative Agent, together with all amendments, waivers and
other modifications thereto. All such agreements are valid, subsisting, in full
force and effect, are currently binding and after the Sylvania Acquisition will
continue to be binding upon each Credit Party that is a party thereto and, to
the best knowledge of the Credit Parties, binding upon the other parties thereto
in accordance with their terms. The Credit Parties are not in default under any
such agreements. The Credit Parties have good commercial working relationships
with respect to the other parties listed in SCHEDULE 4.14, and, except at the
request of a Credit Party, no such other party has canceled or otherwise
terminated its relationship with such Credit Party, or during the last twelve
months decreased materially its services or supplies to such Credit Party or its
usage or purchase of services or products of such Credit Party, as the case may
be. No Credit Party knows of any plan or intention of any such other party, and
nor has it received any written threat from any such other party, to terminate,
to cancel or otherwise materially and adversely modify its relationship with a
Credit Party or to decrease materially or limit its services or supplies to a
Credit Party or its usage or purchase of services or products of a Credit Party.
The licenses and other agreements listed in Part (b) of SCHEDULE 4.5
collectively entitle the Credit Parties to use all Proprietary Rights material
to the conduct of the business of CML as presently conducted and as proposed to
be conducted after the Sylvania Acquisition.
4.15 FEDERAL RESERVE REGULATIONS. No Credit Party nor any of its
Subsidiaries is engaged principally or as one of its important activities in the
business of extending credit for the purpose of purchasing or carrying margin
stock (as defined in Regulation U of the Board). The value of all margin stock
owned by the Borrowers does not constitute more than 25% of the value of the
assets of the Borrowers.
4.16 BURDENSOME RESTRICTIONS. No Credit Party is a party to or otherwise
bound by any indenture, loan or credit agreement or any lease or other agreement
or instrument or subject to any charter, corporate or partnership restriction
which would, or in the exercise of reasonable judgement could, foreseeably have
a Material Adverse Effect.
4.17 FORCE MAJEURE. Since the date of the most recent financial statements
referred to in Section 4.4(a)(i) to the Effective Date, the business, properties
and other assets of the Credit Parties have not been materially and adversely
affected in any way as the result of any fire or other casualty, strike, lockout
or other labor trouble, embargo, sabotage, confiscation, contamination, riot,
civil disturbance, activity of armed forces or act of God.
4.18 LABOR RELATIONS. No Credit Party is engaged in any unfair labor
practice that could have a Material Adverse Effect on the any of the Credit
Parties. There is (i) no significant unfair labor practice complaint pending
against any of the Credit Parties or, to the best of their joint and several
knowledge, threatened against any of them, before the National Labor Relations
Board or similar regulatory body, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement or similar labor agreement is so pending against any of the Credit
Parties or, to the best of their joint and several knowledge, threatened against
any of them, (ii) no significant strike, labor dispute, slowdown or stoppage is
pending against any of the Credit Parties or, to the best of their joint and
several knowledge, threatened against any of the Credit Parties and (iii) to the
best of the knowledge of
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any of the Credit Parties, no union or labor organization question existing with
respect to the employees of any of the Credit Parties and, to best of their
joint and several knowledge, except to the extent a union or labor organization
is already representing such employees, no union or labor organization
organizing activities are taking place.
ARTICLE V
CONDITIONS
5.1 EFFECTIVE DATE. The obligations of the Lenders to make Loans, and of
the Issuing Lender to issue Letters of Credit, hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 10.2):
(a) COUNTERPARTS OF AGREEMENT. The Administrative Agent shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(b) NOTES. The Administrative Agent shall have received for each Lender
that shall have requested a promissory note, a duly completed and executed
promissory note for such Lender.
(c) CORPORATE STRUCTURE. The corporate organizational structure, capital
structure and ownership of the Credit Parties, both before and after giving
effect to the Sylvania Acquisition, shall be as set forth on SCHEDULES 4.12 AND
4.13.
(d) CORPORATE MATTERS. The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or Special Counsel may
reasonably request relating to the organization, existence and good standing of
each Credit Party, the authorization of the Transactions and any other legal
matters relating to the Credit Parties, this Agreement, the other Loan Documents
or the Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(e) SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY. To the extent not
otherwise satisfied pursuant to Section 5.1(f), the Administrative Agent shall
have received evidence satisfactory to it that the Credit Parties shall have
taken or caused to be taken all such actions, executed and delivered or caused
to be executed and delivered all such agreements, documents and instruments, and
made or caused to be made all such filings and recordings (other than the filing
or recording of items described in clauses (iii), (iv) and (v) below) that may
be necessary or, in the opinion of the Administrative Agent, desirable in order
to create in favor of the Administrative Agent, for the benefit of the Lenders,
a valid and (upon such filing and recording) perfected First Priority security
interest in the entire personal and mixed property Collateral in the United
States, Canada, Germany, the United Kingdom and Costa Rica. Such actions shall
include the following (or their applicable local equivalent):
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(i) COLLATERAL DOCUMENTS. Delivery to the Administrative Agent of all
the Collateral Documents, duly executed by the applicable party thereto,
together with accurate and complete schedules to all such Collateral
Documents;
(ii) STOCK CERTIFICATES AND INSTRUMENTS. Delivery to the
Administrative Agent of (A) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank and
otherwise satisfactory in form and substance to the Administrative Agent)
representing all capital stock pledged pursuant to the Pledge Agreements
and (B) all promissory notes or other instruments (duly endorsed, where
appropriate, in a manner satisfactory to the Administrative Agent)
evidencing any Collateral;
(iii) LIEN SEARCHES AND UCC TERMINATION STATEMENTS. Delivery to the
Administrative Agent of (A) the results of a recent search, by a Person
satisfactory to the Administrative Agent, of all effective UCC financing
statements and fixture filings and all judgment and tax lien filings which
may have been made with respect to any personal or mixed property of any
Credit Party, together with copies of all such filings disclosed by such
search, and (B) UCC termination statements duly executed by all applicable
Persons for filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or
fixture filings in respect of Liens permitted to remain outstanding
pursuant to the terms of this Agreement);
(iv) UCC FINANCING STATEMENTS AND FIXTURE FILINGS. Delivery to the
Administrative Agent of UCC financing statements and, where appropriate,
fixture filings, duly executed by each applicable Credit Party with respect
to all personal and mixed property Collateral of such Credit Party, for
filing in all jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interests created
in such Collateral pursuant to the Collateral Documents;
(v) PTO COVER SHEETS, ETC. Delivery to the Administrative Agent of all
cover sheets or other documents or instruments required to be filed with
the PTO in order to create or perfect Liens in respect of any IP
Collateral;
(vi) PERFECTION CERTIFICATE. Delivery to the Administrative Agent of a
perfection certificate dated the Effective Date substantially in the form
of SCHEDULE I annexed to the form of Security Agreement annexed hereto duly
executed by a Financial Officer;
(vii) OPINIONS OF LOCAL COUNSEL. Delivery to the Administrative Agent
of an opinion of counsel (which counsel shall be reasonably satisfactory to
the Administrative Agent) under the laws of Massachusetts, Illinois,
Oklahoma, New Jersey, the Netherlands, the United Kingdom, the Province of
Ontario, Canada and Costa Rica dealing with the creation and perfection of
the security interests in favor of the Administrative Agent in such
Collateral and such other matters governed by the laws of such jurisdiction
regarding such security interests as the Administrative Agent may
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reasonably request, in each case in form and substance reasonably
satisfactory to the Administrative Agent.
(f) EFFECTIVE DATE MORTGAGES; EFFECTIVE DATE MORTGAGE POLICIES; ETC..
The Administrative Agent shall have received the following (or their
applicable local equivalent) from each Credit Party on or prior to the
Effective Date with respect to each Real Property Asset located in the
United States, Canada, Germany and the United Kingdom:
(i) EFFECTIVE DATE MORTGAGES. Fully executed and notarized
Mortgages, Deeds of Trust or equivalent real estate lien document
under applicable local law (each a "EFFECTIVE DATE MORTGAGE" and,
collectively, the "EFFECTIVE DATE MORTGAGES"), in proper form for
recording in all appropriate places in all applicable jurisdictions,
encumbering each Real Property Asset listed and marked with an
asterisk ("*") in SCHEDULE 4.5 (each a "EFFECTIVE DATE MORTGAGED
PROPERTY" and, collectively, the "EFFECTIVE DATE MORTGAGED
PROPERTIES");
(ii) SURVEYS. As to each Effective Date Mortgaged Property,
copies of all existing surveys, surveyors certificates and such
additional surveys or surveyor certificates as the Administrative
Agent may reasonably require;
(iii) RECORDED LEASEHOLD INTERESTS. In the case of each Real
Property Asset listed in clause (ii) of SCHEDULE 4.5, copies of all
leases between any Credit Party and any landlord or tenant;
(iv) LANDLORD CONSENTS AND ESTOPPELS. In the case of each Real
Property Asset listed in clause (ii) of SCHEDULE 4.5 in which the
Administrative Agent is taking an Effective Date Mortgage, a Landlord
Consent and Estoppel with respect thereto and where required by the
terms of any lease, the consent of the mortgagee, ground lessor or
other party;
(v) MATTERS RELATING TO FLOOD HAZARD PROPERTIES. (A) As to all
U.S. Real Property Assets evidence reasonably acceptable to the
Administrative Agent as to whether any Effective Date Mortgaged
Property is a Flood Hazard Property and (B) if there are any such
Flood Hazard Properties, evidence that the applicable Credit Party has
obtained flood insurance with respect to each Flood Hazard Property in
amounts approved by the Administrative Agent, or evidence acceptable
to the Administrative Agent that such insurance is not available;
(vi) ENVIRONMENTAL INDEMNITY. An environmental indemnity
agreement, substantially in the form of EXHIBIT D annexed hereto, with
respect to the indemnification of the Administrative Agent and the
Lenders for any liabilities that may be imposed on or incurred by any
of them as a result of any Hazardous Materials;
(vii) TITLE INSURANCE. (A) ALTA mortgagee title insurance
policies or unconditional commitments (or their applicable local
equivalent) therefor (the "EFFECTIVE DATE MORTGAGE POLICIES") issued
by the Title Company with respect to the Effective Date
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Mortgaged Properties listed (AND MARKED WITH AN ASTERISK) in SCHEDULE
4.5, in amounts not less than the respective amounts designated
therein with respect to any particular Effective Date Mortgaged
Properties, insuring fee simple title to, or a valid leasehold
interest in, each such Effective Date Mortgaged Property vested in
such Credit Party and assuring the Administrative Agent that the
applicable Effective Date Mortgages create valid and enforceable First
Priority mortgage Liens on the respective Effective Date Mortgaged
Properties encumbered thereby, subject only to a standard exceptions
as may be reasonably acceptable by the Administrative Agent, which
Effective Date Mortgage Policies (I) shall include all endorsements
for matters reasonably requested by the Administrative Agent and (II)
shall provide for affirmative insurance and such reinsurance as the
Administrative Agent may reasonably request, all of the foregoing in
form and substance reasonably satisfactory to the Administrative
Agent; and (B) evidence satisfactory to the Administrative Agent that
such Credit Party has (I) delivered to the Title Company all
certificates and affidavits required by the Title Company in
connection with the issuance of the Effective Date Mortgage Policies
and (II) paid to the Title Company or to the appropriate Governmental
Authorities all expenses and premiums of the Title Company in
connection with the issuance of the Effective Date Mortgage Policies
and all recording and stamp taxes (including mortgage recording and
intangible taxes) payable in connection with recording the Effective
Date Mortgages in the appropriate real estate records and as to each
Effective Date Mortgage on property outside of the United States, such
title certificate is customarily taken by a lending institution in
such jurisdiction;
(viii) TITLE REPORTS. With respect to each Effective Date
Mortgaged Property listed (AND MARKED WITH AN ASTERISK) in SCHEDULE
4.5, a title report issued by the Title Company or in non-U.S.
jurisdictions the equivalent customary title report with respect
thereto, dated not more than 30 days prior to the Effective Date and
satisfactory in form and substance to the Administrative Agent;
(ix) COPIES OF DOCUMENTS RELATING TO TITLE EXCEPTIONS. Copies of
all recorded documents listed as exceptions to title or otherwise
referred to in the Effective Date Mortgage Policies or in the title
reports delivered pursuant to Section 5.1(f)(vii); and
(x) OPINIONS OF LOCAL COUNSEL. An opinion of counsel (which
counsel shall be reasonably satisfactory to the Administrative Agent)
in each state or country in which a Effective Date Mortgaged Property
is located with respect to the enforceability of the form(s) of
Effective Date Mortgages to be recorded in such state and such other
matters as the Administrative Agent may reasonably request, in each
case in form and substance reasonably satisfactory to the
Administrative Agent.
(g) REAL ESTATE APPRAISALS. The Administrative Agent shall have received
appraisals from one or more independent real estate appraisers satisfactory to
the Administrative Agent, in form, scope and substance satisfactory to the
Administrative Agent and satisfying the requirements of any applicable laws and
regulations, concerning any Effective Date Mortgaged Properties listed in clause
(i) of SCHEDULE 4.5 to the extent available prior to the Effective Date and the
Borrowers shall use their best efforts to provide the remaining appraisals, in
each case to
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the extent required under such laws and regulations as determined by the
Administrative Agent in its sole discretion.
(h) ENVIRONMENTAL REPORTS. The Administrative Agent shall have received
reports and other information, in form, scope and substance satisfactory to the
Administrative Agent, regarding environmental matters relating to the Facilities
, which reports shall include a Phase I environmental assessment for each of the
Facilities listed in clause (i) of SCHEDULE 4.5 (and so identified thereon)
which conforms to the ASTM Standard Practice for Environmental Site Assessments:
Phase I Environmental Site Assessment Process E 1527-94 (or its applicable local
equivalent) and a transaction screen (or its applicable local equivalent) for
each of the Facilities listed in clause (ii) of SCHEDULE 4.5 (and so identified
thereon) which conforms to the ASTM Standard Practice for Environmental Site
Assessments: Transaction Screen Process E 1528-96. Such reports shall be
conducted by one or more environmental consulting firms reasonably satisfactory
to the Administrative Agent.
(i) EVIDENCE OF INSURANCE. The Administrative Agent shall have received a
certificate from the Credit Parties' insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
Section 6.5 is in full force and effect and that the Administrative Agent on
behalf of the Lenders has been named as additional insured and loss payee
thereunder to the extent required under Section 6.5.
(j) MANAGEMENT; EMPLOYMENT CONTRACTS. The management structure of CML and
its Subsidiaries, after giving effect to the Sylvania Acquisition, shall be as
set forth on SCHEDULE 4.11, and the Administrative Agent shall have received
copies of, and shall be satisfied with the form and substance of (i) any and all
employment contracts with senior management of CML and its Subsidiaries, (ii)
any and all shareholders' agreements among any of the shareholders of CML and
its Subsidiaries, (iii) any and all consulting agreements with and Persons and
(iv) any stock option plans, phantom stock incentive programs and similar
arrangements provided by CML and its Subsidiaries to any Person; provided, that
any the foregoing which relate to Sylvania and its Subsidiaries which is not
provided by Sylvania prior to the consummation of the Sylvania Acquisition will
be provided by the Borrowers no later than 90 days after the Effective Date.
(k) NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION OF
WAITING PERIODS, ETC.. Except as set forth on SCHEDULE 5.1 annexed hereto, the
Borrowers shall have obtained all permits, licenses, authorizations or consents
from all Governmental Authorities and all consents of other Persons with respect
to Material Indebtedness, Liens and agreements listed on SCHEDULE 4.14 (and so
identified thereon), in each case that are necessary or advisable in order to
consummate the Sylvania Acquisition, the other transactions contemplated by the
Basic Documents, and are required for the continued operation of the business
conducted by CML and Sylvania, in substantially the same manner as conducted
prior to the consummation of the Sylvania Acquisition and each of the foregoing
shall be in full force and effect, in each case other than those the failure to
obtain or maintain which, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect. Without limiting the
scope of the foregoing, the Credit Parties shall have obtained all third party
consents necessary to cause the assignment to the Lenders for security purposes
of all agreements required to be listed in
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SCHEDULE 4.14. All applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the Sylvania
Acquisition or the financing thereof. No action, request for stay, petition for
review or rehearing, reconsideration or appeal with respect to any of the
foregoing shall be pending, and the time for any applicable Governmental
Authority to take action to set aside its consent on its own motion shall have
expired.
(l) CONSUMMATION OF THE SYLVANIA ACQUISITION.
(i) All conditions to the Sylvania Acquisition, including those set
forth in the Sylvania Acquisition Agreement, respectively, shall have been
satisfied or the fulfillment of any such conditions shall have been waived
with the consent of the Administrative Agent;
(ii) the Sylvania Acquisition shall have become effective in
accordance with the terms of the Sylvania Acquisition Agreement;
(iii) the aggregate consideration paid by CML in connection with the
Sylvania Acquisition shall not exceed $165,000,000 as adjusted pursuant to
the Sylvania Acquisition Agreement (plus $55,000,000 in assumed liabilities
and the payment of $144,000 in dividends for each of September and October
1997);
(iv) the Administrative Agent shall have received copies of all
instruments and agreements relating to the Sylvania Acquisition; and
(v) the Administrative Agent shall have received an certificate of an
officer of the Borrower to the effect set forth in clauses (i)-(iv) above
and stating that the Borrower will proceed to consummate the Sylvania
Acquisition immediately upon the making of the Sylvania Acquisition Loan.
(m) EXISTING CREDIT AGREEMENTS. The Administrative Agent shall have
received evidence that the principal of and interest on, and all other amounts
owing in respect of, the Existing Credit Agreements except for the Existing
Credit Agreements set forth in SCHEDULE 5.1 shall have been, or shall
simultaneously be, repaid in full, that the "Commitments" thereunder shall have
been terminated and that all Guaranties in respect of, and all Liens securing,
any such obligations shall have been released (or arrangements for such release
satisfactory to the Administrative Agent shall have been made); provided that
all outstanding Alternative Currency Loans under the Existing Credit Agreements
shall be funded at closing by the Lenders and all outstanding letter of credits
with either be replaced or backing Letters of Credit will be issued by the
Issuing Lender.
(n) FINANCIAL STATEMENTS; PROJECTIONS; PRO FORMA BALANCE SHEET. The
Administrative Agent shall have received from the Credit Parties the certified
financial statements, the Projections and pro forma balance sheet referred to in
Section 4.4 hereof and shall have received from Ernst & Young a due diligence
report, acceptable to the Administrative Agent in its sole discretion, in
respect of the Sylvania and its Subsidiaries and respective businesses.
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(o) FINANCIAL COVENANTS. The Administrative Agent shall have received a
certificate of a Financial Officer, in form and detail satisfactory to the
Administrative Agent, setting forth calculations necessary to demonstrate
compliance with the financial covenants contained in Section 7.9 on a pro forma
basis after giving effect to the Loans to be made on the Effective Date and the
completion of the Sylvania Acquisition.
(p) LEVERAGE RATIO. The Administrative Agent shall have received a
certificate of a Financial Officer, in form and detail satisfactory to the
Administrative Agent, setting forth the Leverage Ratio as at the Effective Date.
(q) SOLVENCY ASSURANCES. The Administrative Agent shall have received a
certificate from a Financial Officer to the effect that, as of the Effective
Date and after giving effect to the initial Loans hereunder and to the other
Transactions:
(i) the aggregate value of all properties of the Credit Parties at
their present fair saleable value (i.e., the amount that may be realized
within a reasonable time, considered to be six months to one year, either
through collection or sale at the regular market value, conceiving the
latter as the amount that could be obtained for the property in question
within such period by a capable and diligent businessman from an interested
buyer who is willing to purchase under ordinary selling conditions), exceed
the amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of the Credit
Parties,
(ii) the Credit Parties will not, on a consolidated basis, have an
unreasonably small capital with which to conduct their business operations
as heretofore conducted and
(iii) the Credit Parties will have, on a consolidated basis,
sufficient cash flow to enable them to pay their debts as they mature.
Such certificate shall include a statement to the effect that the financial
projections and assumptions underlying such analysis are fair and reasonable and
accurately computed.
(r) FINANCIAL OFFICER CERTIFICATE. The Administrative Agent shall have
received a certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer, confirming compliance with the conditions
set forth in paragraphs (a) and (b) of Section 5.2.
(s) NO MATERIAL ADVERSE EFFECT. There shall have occurred no Material
Adverse Effect (in the reasonable opinion of the Administrative Agent) since
December 1, 1996 in the case of the Borrowers.
(t) OPINIONS OF COUNSEL. The Administrative Agent shall have received
favorable written opinions (addressed to the Administrative Agent and the
Lenders and dated the Effective Date) of (i) Xxxxxxx, Xxxx & Xxxxx LLP, counsel
to the Credit Parties, substantially in the form of EXHIBIT G annexed hereto and
covering such matters relating to the Credit Parties, this Agreement, the other
Loan Documents or the Transactions as the Required Revolving Credit
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Lenders shall request (and each Credit Party hereby requests such counsel to
deliver such opinion) and (ii) local counsel in Oklahoma, Illinois, New Jersey,
the Province of Ontario, Canada, Costa Rica, the United Kingdom and Germany.
(u) FEES AND EXPENSES. The Administrative Agent shall have received all
fees and other amounts due and payable on or prior to the Effective Date,
including, without limitation to the extent invoiced, reimbursement or payment
of all legal, examination and related fees and expenses required to be
reimbursed or paid by the Borrowers hereunder.
(v) OTHER DOCUMENTS. The Administrative Agent shall have received such
other documents as the Administrative Agent or any Lender or Special Counsel
shall have reasonably requested.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans, and of the Issuing
Lender to issue Letters of Credit, hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section
10.2) at or prior to 12:00 p.m., Boston, Massachusetts time, on November 15,
1997 (and, in the event such conditions are not so satisfied or waived, the
Revolving Credit Commitments shall terminate at such time).
5.2 EACH EXTENSION OF CREDIT. The obligation of each Lender to make a Loan
on the occasion of any Borrowing, and of the Issuing Lender to issue, amend,
renew or extend any Letter of Credit or any Bank Guaranty, is subject to the
satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
each Credit Party set forth in this Agreement and the other Loan Documents shall
be true and correct on and as of the date of such Borrowing, or (as applicable)
the date of issuance, amendment, renewal or extension of such Letter of Credit,
both before and after giving effect thereto and to the use of the proceeds
thereof (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, such representation or warranty shall be or
have been true and correct as of such specific date).
(b) NO DEFAULTS. At the time of and immediately after giving effect to such
Borrowing, or (as applicable) the date of issuance, amendment, renewal or
extension of such Letter of Credit or Bank Guaranty, no Default shall have
occurred and be continuing and the Credit Parties shall be in compliance with
each covenant, condition and agreement contained in this Agreement.
The making of each Loan shall be deemed to be a representation and warranty
by the Borrowers on the date of the Borrowing or the date of issuance,
amendment, renewal or extension of a Letter of Credit or a Bank Guaranty as to
the accuracy of the facts referred to in subsections (a) and (b) of this Section
5.2.
ARTICLE VI
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AFFIRMATIVE COVENANTS
Until the Revolving Credit Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit and Bank Guaranties shall have
expired or terminated and all LC Disbursements and Bank Guaranty Disbursements
shall have been reimbursed, each of the Credit Parties covenants and agrees with
the Lenders that:
6.1 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Credit Parties will
furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of
each fiscal year of the Credit Parties:
(i) consolidated and consolidating statements of income, retained
earnings and cash flows of the Credit Parties for such fiscal year and the
related consolidated and consolidating balance sheets of the Credit Parties
as at the end of such fiscal year, setting forth in each case in
comparative form the corresponding consolidated and consolidating figures
for the preceding fiscal year;
(ii) an opinion (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of
such audit) of independent certified public accountants of recognized
national standing stating that said consolidated financial statements
referred to in the preceding clause (i) fairly present the consolidated
financial condition and results of operations of the Credit Parties as at
the end of, and for, such fiscal year in accordance with GAAP, and a
statement of such accountants to the effect that, in making the examination
necessary for their opinion, nothing came to their attention that caused
them to believe that the Credit Parties were not in compliance with Section
7.9, insofar as such Section relates to accounting matters; and
(iii) a certificate of a Financial Officer in the form of EXHIBIT E
annexed hereto stating that the consolidating financial statements referred
to in the clause (i) fairly present the respective individual
unconsolidated financial condition and results of operations of each of the
Credit Parties, in each case in accordance with GAAP consistently applied,
as at the end of, and for, such fiscal year;
(b) as soon as available and in any event within 45 days after the end of
each quarterly fiscal period of each fiscal year of the Credit Parties:
(i) consolidated and consolidating statements of income, retained
earnings and cash flows of the Credit Parties for such period and for the
period from the beginning of the respective fiscal year to the end of such
period, and the related consolidated and consolidating balance sheets of
the Credit Parties as at the end of such period, setting forth in each case
in comparative form the corresponding consolidated and consolidating
figures for the corresponding period in the preceding fiscal year (except
that, in the case of balance sheets, such comparison shall be to the last
day of the prior fiscal year) and
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including (i) separate statements of income for CML and its Consolidated
Subsidiaries (except Sylvania and its Consolidated Subsidiaries) (ii)
separate statements of income for Sylvania and its Consolidated
Subsidiaries and (iii) separate statements of income, retained earnings,
cash flow and balance sheet, for each Special Credit Party obligated,
directly or indirectly, for an Alternative Currency Loan; and
(ii) a certificate of a Financial Officer, which certificate shall
state that said consolidated financial statements referred to in the
preceding clause (i) fairly present the consolidated financial condition
and results of operations of the Credit Parties and that said consolidating
financial statements referred to in the preceding clause (i) fairly present
the respective individual unconsolidated financial condition and results of
operations of each of the Credit Parties, in each case in accordance with
generally accepted accounting principles, consistently applied, as at the
end of, and for, such period (subject to normal year-end audit adjustments
and the omission of footnotes);
(c) promptly upon receipt by the Credit Parties, all management letters
from their independent certified public accountants;
(d) concurrently with any delivery of financial statements under clause (a)
and (b) above, a Compliance Certificate duly executed by a Financial Officer;
(e) as soon as available and in any event within 30 days after the
beginning of the fiscal year of CML, statements of forecasted consolidated
income for the Credit Parties for each fiscal month in such fiscal year and a
forecasted consolidated balance sheet of the Credit Parties, together with
supporting assumptions which were reasonable when made, as at the end of each
fiscal month, all prepared in good faith in reasonable detail and consistent
with CML's and CML's past practices in preparing projections and otherwise
reasonably satisfactory in scope to the Administrative Agent;
(f) promptly after the same become publicly available, copies of all
registration statements, regular periodic or other reports and press releases
filed by the Credit Parties with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange;
(g) promptly upon the mailing thereof to the shareholders of CML generally,
copies of all financial statements, reports and proxy statements so mailed; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of any Credit
Party, or compliance with the terms of this Agreement, as the Administrative
Agent or any Lender may reasonably request.
6.2 NOTICES OF MATERIAL EVENTS. The Credit Parties will furnish to the
Administrative Agent prompt written notice of the following:
(a) the occurrence of any Default (delivered no later than five Business
Days after such occurrence);
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(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any Credit
Party or any Affiliate thereof that, if adversely determined, could reasonably
be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Credit Parties in an aggregate amount exceeding $100,000; and
(d) any other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.2 shall be accompanied by a statement
of a Financial Officer or other executive officer of CML setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
6.3 EXISTENCE; CONDUCT OF BUSINESS. Each of the Credit Parties will cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation, dissolution or any
discontinuance or sale of such business permitted under Section 7.4.
6.4 PAYMENT OF OBLIGATIONS.
(a) Each of the Credit Parties will pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
such Credit Party has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
(b) No Credit Party will file any consolidated tax return with any
Unrestricted Subsidiary prior to having entered into a tax sharing agreement,
approved by the Required Revolving Credit Lenders, that (i) obligates such
Unrestricted Subsidiary to reimburse the Credit Parties for the portion of any
tax liability equal to the proportionate contribution of such Unrestricted
Subsidiary to the taxable income of the Credit Parties and (ii) obligates the
Credit Parties to reimburse such Unrestricted Subsidiary for the portion of any
tax savings or benefits resulting exclusively from the operations of such
Unrestricted Subsidiary, on account of the filing of such consolidated tax
return.
6.5 MAINTENANCE OF PROPERTIES; INSURANCE. Each of the Credit Parties will
(a) keep and maintain all property material to the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies, as may be
required by law and such other insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations, including business
interruption
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insurance. Without limiting the generality of the foregoing, each Credit Party
will (i) maintain or cause to be maintained flood insurance with respect to each
Flood Hazard Property in amounts approved by the Administrative Agent, or
provide evidence acceptable to the Administrative Agent that such insurance is
not available and (ii) maintain or cause to be maintained replacement value
casualty insurance on its Property under such policies of insurance, in each
case with such insurance companies, in such amounts, with such deductibles, and
covering such terms and risks as are at all times satisfactory to the
Administrative Agent in its commercially reasonable judgment. Each such policy
of insurance shall (x) in the case of each liability insurance policy, name the
Administrative Agent for the benefit of the Lenders as an additional insured
thereunder as its interests may appear and (y) in the case of each business
interruption and casualty insurance policy, contain a loss payable clause or
endorsement, satisfactory in form and substance to the Administrative Agent that
names the Administrative Agent for the benefit of the Lenders as the loss payee
thereunder for any covered loss and provides for at least 30 days prior written
notice to the Administrative Agent of any modifications or cancellation of such
policy.
6.6 BOOKS AND RECORDS; INSPECTION RIGHTS. Each of the Credit Parties will
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. Each of the Credit Parties will permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested, provided that, so long as no Default has occurred
and is continuing, all such visits shall be at reasonable times during regular
business hours of such Credit Party and neither the Administrative Agent nor any
Lender shall visit any Credit Party more frequently than once each fiscal
quarter, and provided further that after the occurrence and during the
continuance of any Default the Administrative Agent and the Lenders may visit at
any reasonable times and as often as the Administrative Agent or such Lender
reasonably deems necessary. The Borrowers, in consultation with the
Administrative Agent, will arrange for a meeting to be held at least once every
year with the Lenders hereunder at which the business and operations of the
Credit Parties are discussed.
6.7 FISCAL YEAR. To enable the ready and consistent determination of
compliance with the covenants set forth in Section 7 hereof, the Credit Parties
will not change the last day of their fiscal year from Sunday closest to
December 1 of each year, or the last day of the first three fiscal quarters in
each of its fiscal years from February, May and August, respectively.
6.8 COMPLIANCE WITH LAWS. Each of the Credit Parties will comply with all
laws, rules, regulations and orders including Environmental Laws, of any
Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
6.9 COMPLIANCE WITH AGREEMENTS. Each of the Credit Parties will comply in
all material respects with each term, condition and provision of all leases,
agreements and other instruments entered into in the conduct of its business
including any agreement listed on
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SCHEDULE 4.14; provided that the Credit Parties may contest any such lease,
agreement and other instrument in good faith so long as adequate reserves are
maintained in accordance with GAAP.
6.10 USE OF PROCEEDS.
(a) The proceeds of the Sylvania Acquisition Loan will be used only for the
Sylvania Acquisition;
(b) Loans to Special Credit Parties shall be used only for (i) the
refinancing of Existing Credit Agreements of the Special Credit Party and (ii)
for general working capital purposes of the Special Credit Party;
(c) All other Revolving Credit Loans will be used only for (i) the
refinancing of Existing Credit Agreements (except for the Existing Credit
Agreements described in paragraph (b)(i) above), (ii) expenses incurred in
connection with this Agreement and related transactions and (iii) for general
working capital purposes of the Borrowers;
(d) No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations G, U and X.
6.11 CERTAIN OBLIGATIONS RESPECTING RESTRICTED SUBSIDIARIES AND SPECIAL
CREDIT PARTIES.
(a) ADDITIONAL RESTRICTED SUBSIDIARIES. In the event that any Credit Party
shall form or acquire any new Restricted Subsidiary after the date hereof, the
applicable Credit Party shall cause such new Restricted Subsidiary within five
Business Days of such formation or acquisition:
(i) to execute and deliver to the Administrative Agent the following
documents: (1) a counterpart to this Agreement (and thereby to become a
party to this Agreement, as a "Borrower" hereunder if such Subsidiary is a
Domestic Subsidiary or as a "Guarantor" hereunder if such Subsidiary is a
Foreign Subsidiary), (2) a Pledge Agreement, (3) a Security Agreement, (4)
an Intellectual Property Security Agreement, (5) Mortgages and (6) such
other instruments documents and agreements as may be required by the
Administrative Agent;
(ii) to take such action (including delivering such shares of stock
and executing and delivering such UCC financing statements or its
applicable local equivalent) as shall be necessary to create and perfect
valid and enforceable First Priority Liens consistent with the provisions
of the applicable Collateral Documents; and
(iii) to deliver such proof of corporate action, incumbency of
officers and other documents as is consistent with those delivered by each
Restricted Subsidiary pursuant to Section 5.1 upon the Effective Date or as
the Administrative Agent shall have reasonably requested.
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(b) ADDITIONAL SPECIAL CREDIT PARTIES. At any time that the Lenders make
Loans to any Unrestricted Subsidiary or Sylvania Company such Unrestricted
Subsidiary or Sylvania Company shall become a Special Credit Party and shall, if
not already a party, execute this Agreement. The execution of this Agreement or
the grant of any security for Loans made to any Special Credit Party shall not
bind any such Special Credit Party to terms of this Agreement other than the
representation in Article IV and the covenants set forth in Articles VI and VII
and such other provisions which specifically relate to the Special Credit
Parties. No security interest or lien granted to the Agent or any of the Lenders
by any Special Credit Party which is a Sylvania Company shall secure the
Sylvania Acquisition Loan. Each new Special Credit Party shall become a
Guarantor of all Loans other than the Sylvania Acquisition Loan, to the extent
permitted under the law governing such Special Credit Party or its assets.
(c) OWNERSHIP OF RESTRICTED SUBSIDIARIES. Except as expressly permitted by
this Agreement, no Credit Party shall sell, transfer or otherwise dispose of any
shares of stock in any Restricted Subsidiary owned by it, nor permit any
Restricted Subsidiary to issue any shares of stock of any class whatsoever to
any Person other than to a Credit Party. Each of the Credit Parties will take
such action from time to time as shall be necessary to ensure that the
percentage of the equity capital of any class or character owned by it in any
Restricted Subsidiary on the date hereof (or, in the case of any newly formed or
newly acquired Restricted Subsidiary, on the date of formation or acquisition)
is not at any time decreased, other than by reason of transfers to another
Credit Party. In the event that any additional shares of stock shall be issued
by any Credit Party, the respective holder of such shares of stock shall
forthwith deliver to the Administrative Agent pursuant to a Pledge Agreement the
certificates evidencing such shares of stock, accompanied by undated stock
powers executed in blank and to take such other action as the Administrative
Agent shall request to perfect the security interest created therein pursuant to
such Pledge Agreement.
6.12 ERISA. The Credit Parties will maintain each Plan in compliance with
all material applicable requirements of ERISA and of the Code and with all
applicable rulings and regulations issued under the provisions of ERISA and of
the Code and will not and not permit any of the ERISA Affiliates to (a) engage
in any transaction in connection with which CML or any of the ERISA Affiliates
would be subject to either a civil penalty assessed pursuant to Section 502(i)
of ERISA or a tax imposed by Section 4975 of the Code, (b) fail to make full
payment when due of all amounts which, under the provisions of any Plan, CML or
any ERISA Affiliate is required to pay as contributions thereto, or permit to
exist any accumulated funding deficiency (as such term is defined in Section 302
of ERISA and Section 412 of the Code), whether or not waived, with respect to
any Plan or (c) fail to make any payments to any Multiemployer Plan that CML or
any of the ERISA Affiliates may be required to make under any agreement relating
to such Multiemployer Plan or any law pertaining thereto.
6.13 ENVIRONMENTAL MATTERS; REPORTING. Each of the Credit Parties will
observe and comply with, all laws, rules, regulations and orders of any
government or government agency relating to health, safety, pollution, hazardous
materials or other environmental matters to the extent non-compliance could
result in a material liability or otherwise have a material adverse effect on
the Credit Parties taken as a whole. The Credit Parties will give the
Administrative Agent prompt written notice of any violation as to any
environmental matter by any Credit Party
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and of the commencement of any judicial or administrative proceeding relating to
health, safety or environmental matters (a) in which an adverse result would
have a Material Adverse Effect on any operating permits, air emission permits,
water discharge permits, hazardous waste permits or other permits held by any
Credit Party which are material to the operations of such Credit Party, or (b)
which will or threatens to impose a material liability on such Credit Party to
any Person or which will require a material expenditure by such Credit Party to
cure any alleged problem or violation.
6.14 CONFORMING LEASEHOLD INTERESTS; MATTERS RELATING TO ADDITIONAL REAL
PROPERTY COLLATERAL.
(a) If any Credit Party acquires any Material Leasehold Property, each of
the Credit Parties shall, or shall cause such Restricted Subsidiary to, use its
best efforts (without requiring such Credit Party to relinquish any material
rights or incur any material obligations or to expend more than a nominal amount
of money over and above the reimbursement, if required, of the landlord's
out-of-pocket costs, including attorneys' fees) to cause such Leasehold Property
to be a Conforming Leasehold Interest.
(b) From and after the Effective Date, in the event that (i) any Credit
Party acquires any fee interest in real property or any Material Leasehold
Property, or the Administrative Agent determines in its sole discretion to place
a Mortgage on any Real Property Asset owned on the Effective Date by any Credit
Party if a Mortgage was not placed on any such Real Property Asset as of the
Effective Date, (ii) at the time any Person becomes a Restricted Subsidiary and
such Person owns or holds any fee interest in real property or any Material
Leasehold Property, or (iii) any Loan is extended to any Special Credit Party
and such Special Credit Party may extend a lien on its freehold or fee Real
Property Assets, excluding as to each of the foregoing cases any such Real
Property Asset the encumbering of which requires the consent of any applicable
lessor or (in the case of clause (ii) above) any then-existing senior
lienholder, where the Credit Parties are unable to obtain such lessor's or
senior lienholder's consent or granting such a lien would violate applicable law
(any such non-excluded Real Property Asset described in the foregoing clause
(i), (ii) or (iii) being an "ADDITIONAL MORTGAGED PROPERTY"), such Credit Party,
Restricted Subsidiary or Special Credit Party, as the case may be, with
Additional Mortgaged Property shall deliver to the Administrative Agent all of
the items required to be delivered for each Effective Date Mortgaged Property,
as soon as practicable after such Person acquires such Additional Mortgaged
Property. Notwithstanding the foregoing, the Additional Mortgaged Property of
Sylvania or any of its Subsidiaries shall not secure the Sylvania Acquisition
Loan and to the extent restricted by local law and the Additional Mortgaged
Property of any Special Credit Party will only secure the Obligations of such
Special Credit Party.
6.15 ADDITIONAL SECURITY INTERESTS.
(a) The Credit Parties shall use their best efforts to satisfy, not later
than 90 days after the Effective Date, the requirements of Sections 5.1(e) and
(f) with respect to any personal or mixed property of any Restricted Subsidiary
or Subsidiary of CML not delivered at closing or Real Property Asset any
Restricted Subsidiary or Subsidiary of CML, including, without limitation,
delivery of a Pledge of 65% of the shares of Sylvania.
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(b) Any agreement by which any of the Sylvania Companies guaranty the
Obligations here under or become Special Credit Parties or grant liens of any
nature to the Administrative Agent shall specifically provide that such
Obligations undertaken or secured exclude the Obligations arising from the
Sylvania Acquisition Loan.
(c) As soon as possible, the Restricted Subsidiaries and Unrestricted
Subsidiaries, where permitted under local law, shall amend their charters to
provide that they will not undertake any additional debt for borrowed money
without the consent of the Administrative Agent unless their board of directors
or other equivalent governing body determines that such additional debt is in
the best interest of such Restricted Subsidiary or Unrestricted Subsidiary and
the Administrative Agent declines or cannot under the terms of this Agreement
make a Loan to such Restricted Subsidiary or Unrestricted Subsidiary.
(d) Any Special Credit Party shall not be required under any Loan to agree
to repay anything more than the actual Loan or Loans made to such Special Credit
Party or secure more than such specific Loan if in the reasonable judgment of
the Administrative Agent, such Special Credit Party's undertaking or securing
additional Obligations would (i) cause such Special Credit Party to violate
Section 6.15(b), (ii) violate the law of the jurisdiction governing such Special
Credit Party or (iii) could reasonably render any Obligation undertaken or
security granted void or voidable or might subordinate the Obligations of such
Special Credit Party to the Lenders to the obligations due any other Person.
Notwithstanding the foregoing no Sylvania Company shall guaranty, provide
Collateral to secure or in any way be obligated for, the Sylvania Acquisition
Loan.
6.16 REFINANCING OF EXISTING CREDIT AGREEMENTS. On or before September 30,
1997, each Existing Credit Agreement listed on SCHEDULE 5.1 shall have been
repaid in full and the "Commitments" thereunder shall have been terminated
and/or assigned to the Administrative Agent and all Guaranties in respect of,
and all Liens securing, any such obligations shall have been released or notice
of such termination, release or assignment shall have been irrevocably given in
accordance with the terms thereof.
6.17 ADEQUATE CAPITAL. To the extent that the Administrative Agent in its
reasonable discretion determines that any Credit Party (except CML) has failed
to maintain adequate capital as required by local law applicable to such Credit
Party, the Credit Parties shall contribute such funds in cash to the affected
Credit Party to the extent necessary for it to comply with local law.
ARTICLE VII
NEGATIVE COVENANTS
Until the Revolving Credit Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit and Bank Guaranties shall have expired or
terminated and all LC Disbursements and Bank Guaranty Disbursement shall have
been reimbursed, each of the Credit Parties covenants and agrees with the
Lenders that:
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7.1 INDEBTEDNESS. No Credit Party will create, incur, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness created hereunder or permitted to any Lender under the
terms hereof, including certain Hedging Agreements with the Administrative
Agent;
(b) Indebtedness existing on the date hereof not required to be repaid and
set forth in SCHEDULE 4.14;
(c) Indebtedness of any Credit Party to any other Credit Party;
(d) Indebtedness of Foreign Subsidiaries to lending institutions located in
such Foreign Subsidiary's jurisdiction of organization not in excess of the
amounts and set forth in SCHEDULE 7.1;
(e) Indebtedness of any Foreign Subsidiary which is not a Guarantor to CML;
provided that such Indebtedness shall not exceed the principal amount of the
promissory note executed by each such Foreign Subsidiary for such Indebtedness
which has been assigned to the Administrative Agent for the benefit of the
Lenders;
(f) Guaranties by any Credit Party of Indebtedness of any other Credit
Party;
(g) Indebtedness of any Credit Party (determined on a consolidated basis
without duplication in accordance with GAAP) for Funded Debt secured by Liens
permitted under Section 7.2(i) in an aggregate principal amount not in excess of
$15,000,000 at any one time outstanding; and
(h) Additional Indebtedness of any Credit Party (determined on a
consolidated basis without duplication in accordance with GAAP) for Funded Debt
in an aggregate principal amount, which when added to Indebtedness incurred
pursuant to Section 7.1(e) and 7.1 (g) does not exceed $20,000,000 at any one
time outstanding.
7.2 LIENS. No Credit Party will create, incur, assume or permit to exist
any Lien on any Property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Liens created under the Collateral Documents;
(b) any Lien on any property or asset of any Credit Party existing on the
date hereof and set forth in SCHEDULE 4.14 or any Lien securing Indebtedness
which does not have to be scheduled under the terms of this Agreement, provided
that (i) such Lien shall not apply to any other property or asset of any Credit
Party and (ii) such Lien shall secure only those obligations which it secures on
the date hereof and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
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(c) Liens imposed by any Governmental Authority for taxes, assessments or
charges not yet due or (in the case of property taxes and assessments not
exceeding $100,000 in the aggregate more than 90 days overdue) which are being
contested in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of any Credit Party in accordance
with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens, and vendors' Liens imposed by statute or common law not
securing the repayment of Indebtedness, arising in the ordinary course of
business which are not overdue for a period of more than 60 days or which are
being contested in good faith and by appropriate proceedings and Liens securing
judgments (including pre-judgment attachments) but only to the extent for an
amount and for a period not resulting in an Event of Default under Section
8.1(j) hereof;
(e) pledges or deposits under worker's compensation, unemployment insurance
and other social security legislation;
(f) deposits to secure the performance of bids, tenders, trade contracts
(other than for borrowed money), leases (other than capital leases), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the use of Property or
minor imperfections in title thereto which, in the aggregate, are not material
in amount, and which do not, in the aggregate, materially detract from the value
of the Property of any Credit Party or interfere with the ordinary conduct of
the business of any Credit Party;
(h) Liens consisting of bankers' liens and rights of setoff, in each case,
arising by operation of law, and Liens on documents presented in letters of
credit drawings; and
(i) Liens on fixed or capital assets, including real or personal property,
acquired, constructed or improved by any Credit Party, provided that (A) such
Liens secure Indebtedness (including Capital Lease Obligations) permitted by
Section 7.1(h), (B) such Liens and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets and (D) such security interests shall not apply to any other property or
assets of any Credit Party.
7.3 CONTINGENT LIABILITIES. No Credit Party will Guaranty the Indebtedness
or other obligations of any Person, or Guaranty the payment of dividends or
other distributions upon the stock of, or the earnings of, any Person, except:
(a) endorsements of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business,
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(b) Guaranties of obligations of any Credit Party by any other Credit
Party;
(c) Guaranties in effect on the date hereof which are disclosed in SCHEDULE
4.14 an any replacement thereof which do not exceed the limits set forth on
SCHEDULE 4.14; and
(d) obligations in respect of Letters of Credit and Bank Guaranties.
7.4 FUNDAMENTAL CHANGES. No Credit Party will enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution). No Credit Party will acquire
any business or property from, or capital stock of, or be a party to any
Acquisition of, any Person except Permitted Acquisitions, purchases of inventory
and other property to be sold or used in the ordinary course of business,
Investments permitted under Section 7.5 and Capital Expenditures permitted under
Section 7.9(e). No Credit Party will convey, sell, lease, transfer or otherwise
dispose of, in one transaction or a series of transactions, any part of its
business or property, whether now owned or hereafter acquired, including,
receivables and leasehold interests, but excluding (x) obsolete or worn-out
property, tools or equipment no longer used or useful in its business, (y)
Dispositions permitted under the terms of this Agreement and (z) any inventory
or other property sold or disposed of in the ordinary course of business and on
ordinary business terms).
Notwithstanding the foregoing provisions of this Section 7.4:
(a) any Restricted Subsidiary may be merged or consolidated with or into
any other Restricted Subsidiary; provided that if any such transaction shall be
between a Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned Subsidiary
shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its property (upon voluntary liquidation or otherwise)
to any Subsidiary that is a Wholly Owned Subsidiary of CML; provided that
Chicago Miniature Lamp-Sylvania I B.V. may sell, lease, transfer or otherwise
dispose of any or all of its property only to Chicago Miniature Lamp-Sylvania II
B.V., its Wholly Owned Subsidiary; provided further that if any such sale is by
a Restricted Subsidiary to a Subsidiary of CML not a Restricted Subsidiary, then
such Subsidiary shall have assumed all of the obligations of such Restricted
Subsidiary hereunder and under the applicable Collateral Documents and (if not
theretofore so pledged) all of the issued and outstanding capital stock of such
Subsidiary shall be pledged under the Pledge Agreement executed by the
applicable Credit Party and (if not theretofore so encumbered) all the assets of
such Subsidiary shall become subject to a Lien in favor of the Administrative
Agent pursuant to a Security Agreement and an Intellectual Property Security
Agreement; and
(c) the capital stock of any Restricted Subsidiary may be sold, transferred
or otherwise disposed of to CML or any Subsidiary that is a Wholly Owned
Subsidiary of CML; provided that if any such sale, transfer or disposition is to
a Subsidiary of CML not a Restricted Subsidiary, then such Subsidiary shall have
become a Restricted Subsidiary hereunder and all of the issued and outstanding
capital stock of such Subsidiary shall be pledged under the Pledge Agreement
executed by the applicable Credit Party and all the assets of such Subsidiary
shall
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become subject to a Lien in favor of the Administrative Agent pursuant to a
Security Agreement and an Intellectual Property Security Agreement.
7.5 INVESTMENTS; HEDGING AGREEMENTS.
(a) No Credit Party will make or permit to remain outstanding any
Investment, except:
(i) Investments by CML in capital stock of a Credit Party to the
extent outstanding on the date of the financial statements of CML or any
Consolidated Subsidiary referred to in Section 4.4 hereof, advances by any
Credit Party to any other Credit Party in the ordinary course of business
and capital contributions by any Credit Party to any other Credit Party;
(ii) Permitted Investments;
(iii) Operating deposit accounts with banks; and
(iv) Investments in Unrestricted Subsidiaries not exceeding
$10,000,000 in the aggregate at any one time outstanding.
(b) No Credit Party will enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which such Credit Party is exposed in the conduct of its
business or the management of its liabilities.
7.6 RESTRICTED JUNIOR PAYMENTS. No Credit Party will declare or make any
Restricted Junior Payment at any time; provided, however, that nothing herein
shall be deemed to prohibit the making of any dividend or distribution by any
Restricted Subsidiary to CML or any other Restricted Subsidiary which is its
parent. Nothing in this Agreement shall limit the ability of CML to acquire its
public shares (other than the shares held by Persons who are Affiliates of CML
on the date hereof) in a stock redemption authorized by its Board of Directors
and which stock redemption (i) will not violate actually or on a proforma basis
after such stock redemption any covenants in Section 7.9, and (ii) in the
aggregate with all other stock redemptions, will not require or permit payments
to acquire stock in excess of $15,000,000.
7.7 TRANSACTIONS WITH AFFILIATES. Except as expressly permitted by this
Agreement, no Credit Party will, directly or indirectly, (a) make any Investment
in an Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
property to an Affiliate; (c) merge into or consolidate with an Affiliate, or
purchase or acquire property from an Affiliate; or (d) enter into any other
transaction directly or indirectly with or for the benefit of an Affiliate
(including guaranties and assumptions of obligations of an Affiliate); provided
that:
(i) any Affiliate who is an individual may serve as a director,
officer, employee or consultant of any Credit Party and receive reasonable
compensation for his or her services in such capacity; and
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(ii) the Credit Parties may engage in and continue the transactions
with or for the benefit of Affiliates which are described in SCHEDULE 7.7
annexed hereto.
7.8 RESTRICTIVE AGREEMENTS. No Credit Party will , directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of any Credit
Party to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Credit Party to pay dividends or other
distributions with respect to any shares of its capital stock or to make or
repay loans or advances to any other Credit Party or to Guaranty Indebtedness of
any other Credit Party; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on SCHEDULE 7.8 annexed hereto (but shall apply to any
extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition) (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Restricted Subsidiary pending such sale; provided such restrictions
and conditions apply only to the Restricted Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
7.9 CERTAIN FINANCIAL COVENANTS.
(a) MAXIMUM LEVERAGE RATIO. The Credit Parties will not permit the Leverage
Ratio at any time during the periods below to exceed the ratio set opposite such
period below:
Period Ratio
------ -----
From the Effective Date through the day prior to the end of 3.75 to 1
fiscal year 1998
From the last day of fiscal year 1998 through the end of 3.50 to 1
fiscal year 1999
From the last day of fiscal year 1999 through the day 3.00 to 1
prior to the end of fiscal year 2000
From the last day of fiscal year 2000 and thereafter 2.75 to 1
(b) CONSOLIDATED INTEREST COVERAGE RATIO. The Credit Parties will not
permit the Consolidated Interest Coverage Ratio to be less than 3.50 to 1 at any
time.
(c) CONSOLIDATED CASH FLOW COVERAGE RATIO. The Credit Parties will not
permit Consolidated Cash Flow Coverage Ratio at any time during the periods
below to be less than the ratio set opposite such period below:
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Period Ratio
------ -----
From the Effective Date
through the day prior fiscal
year end 1999 1.30 to 1
From the last day of fiscal year
1999 and at all times thereafter 1.50 to 1
(d) MINIMUM NET WORTH. The Credit Parties will not permit Consolidated Net
Worth at any time to be less than the sum of (i) $154,000,000 PLUS (ii) 75% of
positive Net Income for each fiscal year ending after the date of such balance
sheet.
(e) CAPITAL EXPENDITURES. The Credit Parties will not permit the aggregate
amount of Capital Expenditures for any fiscal year to exceed $40,000,000 and may
carry forward into the next fiscal year (but not beyond) 25% of such Capital
Expenditure limitation if not used in the current fiscal year; provided that
Capital Expenditures shall not exceed $50,000,000 in any fiscal year.
7.10 LINES OF BUSINESS. No Credit Party shall engage to any substantial
extent in any line or lines of business activity other than (a) the businesses
engaged in by the Credit Parties as of the Effective Date and any related
business and (b) such other lines of business as may be consented to by the
Required Revolving Credit Lenders.
7.11 CALCULATION OF FINANCIAL COVENANTS. For purposes of calculating the
financial covenants set forth in Section 7.9 (a),(b) and (c) (i) for the fiscal
period ending the end of August 1997, the Borrowers shall use the actual results
of the Borrowers and the Guarantors for the four quarters through the fiscal
quarter ending August 1997 and the actual results of the Sylvania Companies for
the six months through June 30, 1997 multiplied by 2 and then combined together
to make each calculation made subject to this Section, (ii) for the fiscal
quarter ending the end of November, 1997, the Borrower shall use the actual
results of the Borrowers and the Guarantors for the four quarters then ended and
the actual results of the Sylvania Companies from September 1, 1997 through the
end of November 1997 multiplied by 4 and then combined together to make each
calculation made subject to this Section , (iii) for the fiscal quarter ending
the end of February, 1998, the Borrower shall use the actual results of the
Borrowers for the four quarters then ended for the Borrowers and the Guarantors
and the actual results of the Sylvania Companies from September 1, 1997 through
the end of February 1998 multiplied by 2 and then combined together to make each
calculation mad subject to this Section , (iv) for the fiscal quarter ending the
end of May, 1998 the Borrowers shall use the actual results of the Borrowers and
the Guarantors for the four fiscal quarters then ended and the actual results of
the Sylvania Companies from September 1, 1997 through the end of May, 1998
multiplied by 1.33 and then combined together to make each calculation made
subject to this Section and (v) for each fiscal quarter ending one and after the
end of August 1998, the Borrower shall use the consolidated results of the
Borrowers, the Guarantors and the Sylvania Companies for the four quarter then
ended to make the calculations under Section 7.9 (a), (b) and (c).
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ARTICLE VIII
EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT.
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Credit Parties shall fail to pay any principal of, or interest on,
any Loan or any reimbursement obligation in respect of any LC Disbursement or
Bank Guaranty Disbursement, or other amount payable under this Agreement or any
fee payable under this Agreement or any other agreement to the Administrative
Agent or the Lenders, when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or otherwise;
provided that interest is paid within two Business Days of such due date;
(b) any representation or warranty made or deemed made by or on behalf any
Credit Party in or in connection with this Agreement, any of the other Basic
Documents or any amendment or modification hereof or thereof, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement, any of the other Basic Documents or any
amendment or modification hereof or thereof, shall prove to have been incorrect
when made or deemed made in any material respect;
(c) the Credit Parties (i) shall fail to observe or perform any covenant,
condition or agreement contained in Sections 6.1(a) through (f), inclusive, 6.2,
6.3, 6.4, 6.5(b), 6.6, 6.8, 6.9, 6.10, 6.11, 6.12, 6.14, 6.16, 6.17 or in
Article VII, or (ii) shall fail to observe or perform any other covenant,
condition or agreement contained in Article VI and such failure shall continue
unremedied for a period of 15 days after the earlier of (x) actual knowledge by
an officer of any Credit Party or (y) notice thereof from the Administrative
Agent (given at the request of any Lender) to the Borrower;
(d) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clauses (a), (b) or (c) of this Article) or any other Loan Document, and such
failure shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent (given at the request of the Required Revolving
Credit Lenders) to the Borrowers;
(e) any Credit Party shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable;
(f) any event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or
without the giving of notice, the lapse of time or both) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
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(g) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of any Credit Party or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for any Credit
Party or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(h) any Credit Party shall (i) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (g) of this Article, (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official
for any Credit Party or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(i) any Credit Party shall become unable, admit in writing or fail
generally to pay its debts as they become due;
(j) a final judgment or judgments for the payment of money in excess of
$5,000,000 in the aggregate (exclusive of judgment amounts fully covered by
insurance where the insurer has admitted liability in respect of such judgment)
or in excess of $12,500,000 in the aggregate (regardless of insurance coverage)
shall be rendered by one or more courts, administrative tribunals or other
bodies having jurisdiction against any Credit Party and the same shall not be
discharged (or provision shall not be made for such discharge), or a stay of
execution thereof shall not be procured, within 60 days from the date of entry
thereof and the relevant Credit Party shall not, within said period of 60 days,
or such longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal;
(k) an ERISA Event shall have occurred that, in the opinion of the Required
Revolving Credit Lenders, when taken together with all other ERISA Events
that.have occurred, could reasonably be expected to result in a Material Adverse
Effect;
(l) a reasonable basis shall exist for the assertion against any Credit
Party (or there shall have been asserted against any Credit Party) claims or
liabilities, whether accrued, absolute or contingent, based on or arising from
the generation, storage, transport, handling or disposal of Hazardous Materials
by any Credit Party or any of its Subsidiaries or Affiliates, or any predecessor
in interest of any Credit Party or any of its Subsidiaries or Affiliates, or
relating to any site or facility owned, operated or leased by any Credit Party
or any of its Subsidiaries or Affiliates, which claims or liabilities (insofar
as they are payable by any Credit Party or any of its Subsidiaries but after
deducting any portion thereof which is reasonably expected to be paid by other
credit worthy Persons jointly and severally liable therefor), in the judgment of
the Required
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Revolving Credit Lenders are reasonably likely to be determined adversely to any
Credit Party or any of its Subsidiaries, and the amount thereof is, singly or in
the aggregate, reasonably likely to have a Material Adverse Effect;
(m) any of the following events shall occur and be continuing:
(i) a thirty-five percent (35%) or more of the outstanding voting
stock of CML shall be acquired, directly or indirectly, by a Person (or
group of Persons acting in concert) who owns on the date hereof less than
five percent (5%) of the voting stock of CML; or
(ii) any of Xxxxx X. Xxxx or Xxxxxx Xxxxxxx shall cease to be employed
by CML in the position each held on the Effective Date.
(n) any of the following shall occur: (i) the Liens created by the
Collateral Documents shall at any time (other than by reason of the
Administrative Agent relinquishing such Lien) cease to constitute valid and
perfected Liens on the Collateral intended to be covered thereby; (ii) except
for expiration in accordance with its respective terms, any Collateral Document
shall for whatever reason be terminated, or shall cease to be in full force and
effect; or (iii) the enforceability of any Collateral Document shall be
contested by any Credit Party; or
(o) any Guarantor shall assert that its obligations hereunder or under the
Collateral Documents shall be invalid or unenforceable;
then, and in every such event (other than an event with respect to the Credit
Parties described in clause (g) or (h) of Section 8.1 hereof, and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Revolving Credit Lenders shall, by notice to
the Credit Parties, take either or both of the following actions, at the same or
different times: (i) terminate the Revolving Credit Commitments, and thereupon
the Revolving Credit Commitments shall terminate immediately and (ii) declare
the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Credit Parties accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Credit Parties; and in
case of any event with respect to the Credit Parties described in clause (g) or
(h) of this Section 8.1, the Revolving Credit Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Credit Parties
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Credit Parties, and the Administrative Agent shall be
permitted to exercise such rights as secured party and mortgagee under the
Collateral Documents to the extent permitted by applicable law.
8.2 RECEIVERSHIP. Without limiting the generality of the foregoing or
limiting in any way the rights of the Lenders under the Collateral Documents or
otherwise under applicable law,
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at any time after (i) the entire principal balance of any Loan shall have become
due and payable (whether at maturity, by acceleration or otherwise) and (ii) the
Administrative Agent shall have provided to the Credit Parties not less than ten
(10) days' prior written notice of its intention to apply for a receiver, the
Administrative Agent shall be entitled to apply for and have a receiver
appointed under state or federal law by a court of competent jurisdiction in any
action taken by the Administrative Agent to enforce the Lenders' rights and
remedies hereunder and under the Collateral Documents in order to manage,
protect, preserve, sell and otherwise dispose of all or any portion of the
Collateral and continue the operation of the business of the Credit Parties, and
to collect all revenues and profits thereof and apply the same to the payment of
all expenses and other charges of such receivership, including the compensation
of the receiver, and to the payment of the Loans and other fees and expenses due
hereunder and under the Collateral Documents as aforesaid until a sale or other
disposition of such Collateral shall be finally made and consummated. THE CREDIT
PARTIES HEREBY IRREVOCABLY CONSENT TO AND WAIVE ANY RIGHT TO OBJECT TO OR
OTHERWISE CONTEST THE APPOINTMENT OF RECEIVER AS PROVIDED ABOVE. THE CREDIT
PARTIES (I) GRANT SUCH WAIVER AND CONSENT KNOWINGLY AFTER HAVING DISCUSSED THE
IMPLICATIONS THEREOF WITH COUNSEL, (II) ACKNOWLEDGE THAT (A) THE UNCONTESTED
RIGHT TO HAVE A RECEIVER APPOINTED FOR THE FOREGOING PURPOSES IS CONSIDERED
ESSENTIAL BY THE ADMINISTRATIVE AGENT IN CONNECTION WITH THE ENFORCEMENT OF THE
LENDERS' RIGHTS AND REMEDIES HEREUNDER AND UNDER THE COLLATERAL DOCUMENTS, AND
(B) THE AVAILABILITY OF SUCH APPOINTMENT AS A REMEDY UNDER THE FOREGOING
CIRCUMSTANCES WAS A MATERIAL FACTOR IN INDUCING THE LENDERS TO MAKE THE LOANS TO
THE BORROWER; AND (III) AGREE TO ENTER INTO ANY AND ALL STIPULATIONS IN ANY
LEGAL ACTIONS, OR AGREEMENTS OR OTHER INSTRUMENTS IN CONNECTION WITH THE
FOREGOING AND TO COOPERATE FULLY WITH THE ADMINISTRATIVE AGENT AND THE LENDERS
IN CONNECTION WITH THE ASSUMPTION AND EXERCISE OF CONTROL BY THE RECEIVER OVER
ALL OR ANY PORTION OF THE COLLATERAL. THE LENDERS ACKNOWLEDGE AND AGREE THAT
NOTHING IN THIS SECTION 8.2 SHALL BE DEEMED TO CONSTITUTE A WAIVER OF THE CREDIT
PARTIES' RIGHT TO FILE FOR PROTECTION UNDER TITLE 11 OF THE UNITED STATES CODE
AT ANY TIME PRIOR TO THE APPOINTMENT OF A RECEIVER.
ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1 APPOINTMENT AND AUTHORIZATION. Each of the Lenders and the Issuing
Lender hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such actions and
powers as are reasonably incidental thereto.
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9.2 BANKBOSTON'S RIGHTS AS LENDER. BankBoston shall have the same rights
and powers in its capacity as a Lender hereunder as any other Lender and may
exercise the same as though BankBoston were not the Administrative Agent, and
BankBoston and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Credit Party or any Subsidiary
or other Affiliate of any thereof as if it were not the Administrative Agent
hereunder.
9.3 DUTIES AS EXPRESSLY STATED. The Administrative Agent shall not have any
duties or obligations except those expressly set forth in this Agreement and the
other Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by this Agreement and the other Loan Documents that the
Administrative Agent is required to exercise in writing by the Required
Revolving Credit Lenders, and (c) except as expressly set forth herein and in
the other Loan Documents, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any Credit Party or any of their respective Subsidiaries that is
communicated to or obtained by BankBoston or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Revolving
Credit Lenders or, if provided herein, with the consent or at the request of the
Required Revolving Credit Lenders, or in the absence of its own gross negligence
or wilful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrowers or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement or the other Loan Documents, (ii) the contents of any certificate,
report or other document delivered hereunder or under any of the other Loan
Documents or in connection herewith of therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or in any other Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, the other Loan Documents or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article V or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall not, except to the extent expressly instructed by
the Required Lenders with respect to collateral security under the Collateral
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document; provided, however, that
the Administrative Agent shall not be required to take any action which exposes
the Administrative Agent to personal liability or which is contrary to the Loan
Documents or applicable law.
9.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to be made by the proper Person,
and shall not incur any liability for relying thereon. The Administrative Agent
may
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consult with legal counsel (who may be counsel for the Borrowers), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts. During any litigation or in preparation
therefor, the Administrative Agent may choose its own legal counsel.
9.5 ACTION THROUGH SUB-ADMINISTRATIVE AGENTS. The Administrative Agent may
perform any and all of its duties, and exercise its rights and powers, by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its duties
and exercise its rights and powers through its Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to its activities in connection with the syndication of the credit
facilities provided for herein as well as activities as the Administrative
Agent.
9.6 RESIGNATION OF ADMINISTRATIVE AGENT AND APPOINTMENT OF SUCCESSOR
ADMINISTRATIVE AGENT. Subject to the appointment and acceptance of a successor
Administrative Agent, as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Lender and the
Borrowers. Upon any such resignation, the Required Revolving Credit Lenders
shall have the right, in consultation with the Borrowers, to appoint a successor
Administrative Agent. If no successor shall have been so appointed and shall
have accepted such appointment within 30 days after such retiring Administrative
Agent gives notice of its resignation, then such retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Lender, appoint a successor
Administrative Agent, which shall be a bank with an office in Boston,
Massachusetts or New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent, by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. The fees payable by the Borrowers
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed among the Borrowers and such successor.
After an Administrative Agent's resignation hereunder, the provisions of this
Article and Section 10.3 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
9.7 LENDERS' INDEPENDENT DECISIONS. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Issuing
Lender or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, the Issuing Lender or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement and the other Loan Documents, any related
agreement or any document furnished hereunder or thereunder. Except as
explicitly provided herein, the Administrative Agent has no duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect to such operations,
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business, property, condition or creditworthiness, whether such information
comes into its possession on or before the first Event of Default or at any time
thereafter.
9.8 OBLIGATIONS OF CO-AGENTS AND MANAGER. The rights, privileges and
benefits of the foregoing provisions of this Section 9 shall extend to ABN AMRO
Bank N.V., CoreStates Bank, N.A., and First Union National Bank in their
capacity as Co-Agents and Fleet National Bank in its capacity as Manager. After
the Closing Date, none of the Co- Agents or Manager shall have any obligations
or duties to any Credit Party, Administrative or Documentary Agent or any
Lender.
ARTICLE X
MISCELLANEOUS
10.1 NOTICES. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(a) if to any Credit Party, to 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 Attention of Xxxxxx Xxxxxxxxx (Telecopy No. (000) 000-0000), with a copy
to Xxxxxxx, Xxxx & Xxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention of Xxxxxxx Xxxxxxxxxx, Esq. (Telecopy No. 617-951-8736);
(b) if to the Administrative Agent, to BankBoston, 000 Xxxxxxx Xxxxxx, Mail
Code 01-07-05, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention of Xxxxxxx Xxxxxxxx, Vice
President (Telecopy No. (000) 000-0000), with a copy to Xxxxxx & Dodge LLP, Xxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention of Xxxxxxx X. Xxxxxxxxxx,
Esq. (Telecopy No. 617- 227-4420); and
(c) if to any Lender (including to BankBoston in its capacity as the
Issuing Lender and Swing Loan Lender), to it at its address (or telecopy number)
set forth in SCHEDULE 2.1.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. 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 date of receipt.
10.2 WAIVERS; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the Issuing Lender or
any Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of
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any other right or power. The rights and remedies of the Administrative Agent,
the Issuing Lender and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Credit Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section 10.2, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Credit Parties and the
Required Revolving Credit Lenders or by the Credit Parties and the
Administrative Agent with the written consent of the Required Revolving Credit
Lenders; provided that no such agreement shall:
(i) increase the Revolving Credit Commitment of any Lender without the
written consent of such Lender or increase the aggregate Revolving Credit
Commitments without the written consent of each Lender;
(ii) reduce the principal amount of any Loan, LC Disbursement or Bank
Guaranty Disbursement or reduce the rate of interest thereon, or reduce any
fees payable hereunder, without the written consent of each Lender affected
thereby;
(iii) postpone the scheduled date of payment of the principal amount
of any Loan, LC Disbursement or Bank Guaranty Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of
any Revolving Credit Commitment, or postpone the ultimate expiration date
of any Letter of Credit or Bank Guaranty beyond the Revolving Credit
Maturity Date, without the written consent of each Lender affected thereby;
(iv) change Section 2.10 in a manner that would alter the application
of prepayments thereunder, or change Section 2.17(b), (c) or (d) in a
manner that would alter the pro rata sharing of payments required thereby,
without in each case the written consent of each Lender;
(v) alter the rights or obligations of the Borrowers to prepay Loans
without the written consent of each Lender;
(vi) change any of the provisions of this Section 10.2 or the
definition of "Required Revolving Credit Lenders", or any other provision
hereof specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or under any other Loan Document or
make any determination or grant any consent hereunder or thereunder,
without the written consent of each Lender;
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(vii) release any of the Guarantors from their obligations in respect
of its Guaranty under Article III or release any Collateral, except as
expressly permitted in this Agreement, without the written consent of each
Lender;
(viii) waive any of the conditions precedent specified in Section 5.1
without the written consent of each Lender; or
(ix) change any provisions of any Loan Document in a manner which by
its terms adversely affects the rights in respect of payments due to
Lenders holding Loans of any Class differently than those holding Loans of
any other Class without the written consent of Lenders holding a majority
in interest of the outstanding Loans and unused commitments of each
affected Class (in addition to any other consent required under any other
clause of this Section);
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, the Issuing Lender or the
Swing Loan Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Lender or the Swing Loan Lender, as the case
may be.
(c) None of the Collateral Documents nor any provision thereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Credit Parties party thereto, and by the
Administrative Agent with the written consent of the Required Revolving Credit
Lenders.
10.3 EXPENSES; INDEMNITY: DAMAGE WAIVER.
(a) The Credit Parties jointly and severally agree to pay, or reimburse the
Administrative Agent, the Syndication Agent or Lenders for paying, (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent, the
Syndication Agent and their Affiliates, including the reasonable fees, charges
and disbursements of Special Counsel, in connection with the syndication of the
credit facilities provided for herein, the preparation of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by the Issuing Lender in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder, (iii) all fees and charges generally charged by the Administrative
Agent, the Syndication Agent or any Lender related to any exam of the books and
record of the Credit Parties provided for in this Agreement, (iv) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Lender,
the Syndication Agent or any Lender, including the fees, charges and
disbursements of any counsel for such Administrative Agent, Issuing Lender, the
Syndicated Agent or Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section 10.3, or in connection with the Loans
made or Letters of Credit issued hereunder, including in connection with any
workout, restructuring or negotiations in respect thereof, and (v) all Other
Taxes levied by any Governmental Authority in respect of this Agreement or any
of the other Loan Documents or any other document referred to herein or
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therein and all costs, expenses, taxes, assessments and other charges incurred
in connection with any filing, registration, recording or perfection of any
security interest contemplated by any Security Document or any other document
referred to therein.
(b) The Credit Parties jointly and severally agree to indemnify the
Administrative Agent, the Issuing Lender, the Syndication Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "INDEMNITEE") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee and settlement
costs, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, the other Loan Documents or any agreement or instrument contemplated
hereby, the performance by the parties hereto and thereto of their respective
obligations hereunder or thereunder or the consummation of the Transactions or
any other transactions contemplated hereby or thereby, (ii) any Loan or Letter
of Credit the use of the proceeds therefrom (including any refusal by the
Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by any
Credit Party or any of their subsidiaries, or any Environmental Liability
related in any way to any Credit Party or any of their subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (are determined by a
court of competent jurisdiction by final and nonappealable judgment to have)
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Credit Parties fail to pay any amount required
to be paid by them to the Administrative Agent or the Syndication Agent under
paragraph (a) or (b) of this Section 10.3, each Lender severally agrees to pay
to the Administrative Agent such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent or the
Syndication Agent in its capacity as such. To the extent that the Credit Parties
fail to pay any amount required to be paid by them to the Issuing Lender under
paragraph (a) or (b) of this Section 10.3, each Revolving Credit Lender
severally agrees to pay to the Issuing Lender such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, none of the Credit Parties
shall assert, and each Credit Party hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, the other Loan
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Documents or any agreement or instrument contemplated hereby or thereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section 10.3 shall be payable promptly after
written demand therefor.
10.4 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that no Credit Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by any Credit Party
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Lender, the Swing Loan Lender and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment and the Loans at the time owing to it); provided
that
(i) except in the case of an assignment to a Lender or an Affiliate of
a Lender, that is not a Foreign Lender, the Administrative Agent and CML
(and, in the case of an assignment of all or a portion of a Revolving
Credit Commitment or any Lender's obligations in respect of its LC Exposure
and Bank Guaranties, the Issuing Lender) must give their prior written
consent to such assignment which consent shall not be unreasonably withheld
or delayed).
(ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Revolving Credit Commitment, the amount of the Revolving
Credit Commitment 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 not be less
than $5,000,000 unless each of CML and the Administrative Agent otherwise
consent; provided that for such purposes, the amount of outstanding Loans
and unused Commitments shall be determined without regard to any Swing
Loans then outstanding,
(iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement,
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and
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(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire;
provided further that any consent of CML otherwise required under this paragraph
shall not be required if an Event of Default under clause (g) or (h) of Section
8.1 has occurred and is continuing.
(c) Upon acceptance and recording with the Administrative Agent in the
Register pursuant to paragraph (e) of this Section 10.4, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.3). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with paragraph (b) of this Section 10.4 and which complies
with paragraph (f) of this Section 10.4 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (f) of this Section and shall otherwise
convey no rights hereunder.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrowers, shall maintain at one of its offices in Boston, Massachusetts a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, the identity of the Swing
Loan Lender and the amount of the Swing Loan Sublimit, and the Revolving Credit
Commitment of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Issuing Lender and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrowers, the
Issuing Lender and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section 10.4
and any written consent to such assignment required by paragraph (b) of this
Section 10.4, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph. Upon recording such
Assignment and Acceptance, the Administrative Agent shall deliver to the
Lenders, the Issuing Lender and the Credit Parties a revised copy of SCHEDULE
2.1 reflecting the current information.
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(f) Any Lender may, without the consent of any Borrower, the Administrative
Agent or the Issuing Lender, sell participations to one or more banks or other
entities (a "PARTICIPANT") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Revolving
Credit Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative Agent, the Issuing
Lender and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to
Section 10.2(b), or the first proviso to Section 10.2(c), that affects such
Participant. Subject to paragraph (g) of this Section 10.4, the Borrowers agree
that each Participant shall be entitled to the benefits of Sections 2.14, 2.15
and 2.16 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section 10.4.
(g) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrowers'
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the
Borrowers are notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.16(e) as though it were a Lender.
(h) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or assignment to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
(i) Anything in this Section 10.4 to the contrary notwithstanding, no
Lender may assign or participate any interest in any Loan held by it hereunder
to any Credit Party or any of its Affiliates or Subsidiaries without the prior
consent of each Lender.
(j) The Credit Parties agree that during the Revolving Credit Availability
Period they shall provide to Syndication Agent and the Lenders such information
describing the Credit Parties, the Revolving Credit Commitments and the
Transactions (including pro-forma financial projections for the remainder of the
Revolving Credit Availability Period in form and substance satisfactory to the
Administrative Agent), and such information may be distributed by the
Administrative Agent or any Lender, on a confidential basis, to prospective
assignees of all or a portion of the Administrative Agent's or such Lender's
rights and obligations under this Agreement. In addition, the management,
financial and accounting personnel of the Credit Parties and their advisors
will, at the request of the Syndication Agent, meet and consult with the
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Syndication Agent, the Administrative Agent, the Lenders or potential Lenders at
reasonable times to answer questions and provide information during the
syndicated process.
10.5 SURVIVAL. All covenants, agreements, representations and warranties
made by the Credit Parties herein and in the other Loan Documents, and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement and the other Loan Documents, shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the other Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect so
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement or the other Loan Documents is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16 and 10.3 and Article IX shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Revolving Credit Commitments or the termination of this Agreement
or any other Loan Document or any provision hereof or thereof.
10.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Whenever there is a
reference in any Collateral Document or UCC Financing Statement to the "Credit
Agreement" to which the Administrative Agent, the Lenders and the Credit Parties
are parties, such reference shall be deemed to be made to this Agreement among
the parties hereto. Except as provided in Section 5.1, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.7 SEVERABILITY. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
10.8 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
to the fullest extent
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permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of the
Borrowers against any of and all the obligations of the Borrowers now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section 10.8 are in addition to any other rights and remedies (including other
rights of setoff) which such Lender may have.
10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) This Agreement shall be construed in accordance with and governed by
the law of the Commonwealth of Massachusetts.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS AND OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
MASSACHUSETTS COURT (OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT).
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, THE ISSUING
LENDER OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT AGAINST ANY CREDIT PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN ANY
COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION 10.9. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.1.
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NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
10.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, ADMINISTRATIVE AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.10.
10.11 HEADINGS. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
10.12 SUCCESSOR FACILITY. This Agreement is intended to be a successor to
the Prior Agreement. Upon the execution and delivery of this Agreement, the
Prior Agreement shall be superseded and replaced in its entirety by the terms of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWERS:
---------
CHICAGO MINIATURE LAMP, INC.
CHICAGO MINIATURE LAMP -
SYLVANIA LIGHTING INTERNATIONAL, INC.
CML AIR, INC.
CML BALLAST ,INC.
CML FIBEROPTICS, INC.
ELECTRO FIBEROPTICS CORP.
POWER LIGHTING PRODUCTS, INC. (f/k/a/ Valmont
Electric, Inc.
VBT, INC.
By______________________________
Name: Xxxxx X. Xxxx
Title: President
WITH RESPECT TO THE STERLING OVERDRAFT FACILITY
BADALEX LIMITED
By______________________________
Name: Xxxxx X. Xxxx
Title: President
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109
GUARANTORS
----------
A&S ELECTRIC spol s.r.o. Gmbh
ALBA LIGHT DESIGN GmbH
ALBA SPEZIALLAMPEN GmbH
ALBA SPEZIALLAMPEN HOLDING, GmbH
ALBA TECHNOLOGY (M) Sdr. Bhd.
XXXXXX GmbH
BADALEX LIMITED
BSC XXXXXX GmbH & CO.
CCC DE MEXICO, S.A. DE C.V.
CHICAGO MINIATURE LAMP EUROPE LIMITED
CHICAGO MINIATURE LAMP - SYLVANIA
LIGHTING INTERNATIONAL I, B.V.
IDI INTERNACIONAL S.A.
W. XXXXXXXX GmbH und Co. KG
X. XXXXXXXX GRUNDSTUCKSGESELLSCHAFT
GmbH und CO.
By______________________________
Name: Xxxxx X. Xxxx
Title: Director
CHICAGO MINIATURE LAMP (CANADA) INC.
By______________________________
Name: Xxxxx X. Xxxx
Title: President
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Administrative Agent
--------------------
BANKBOSTON, N.A.
as Administrative Agent
By_____________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Co-Agents:
---------
ABN AMRO BANK N.V.
as Co-Agent
By___________________________ By_________________________________
Name: Name:
Title: Title:
CORESTATES BANK, N.A.
as Co-Agent
By_____________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
as Co-Agent
By_____________________________________
Name:
Title:
Manager:
-------
FLEET NATIONAL BANK
as Manager
By_____________________________________
Name:
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Title:
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112
LENDERS:
-------
BANKBOSTON, N.A.
By_____________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By___________________________ By_________________________________
Name: Name:
Title: Title:
CORESTATES BANK, N.A.
By_____________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By_____________________________________
Name:
Title:
FLEET NATIONAL BANK
By_____________________________________
Name:
Title:
BAYERISCHE VEREINSBANK AG
By_____________________________________
Name:
Title:
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113
MELLON BANK, N.A.
By_____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By_____________________________________
Name:
Title:
BANK OF SCOTLAND
By_____________________________________
Name:
Title:
NATEXIS BANQUE (BFCE)
By_____________________________________
Name:
Title:
IMPERIAL BANK
By_____________________________________
Name:
Title:
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KREDIETBANK N.V.
By_____________________________________
Name:
Title:
By_____________________________________
Name:
Title:
LLOYDS BANK PLC
By_____________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
By_____________________________________
Name:
Title:
USTRUST
By_____________________________________
Name:
Title:
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The following have become parties to this Agreement as of the date set
forth next to their respective signatures:
SPECIAL CREDIT PARTIES
----------------------
---------------------------------------
Dated: __________________ By_____________________________________
Name:
Title:
1
116
The following have become parties to this Agreement as of the date set
forth next to their respective signatures:
ADDITIONAL BORROWERS/GUARANTORS:
-------------------------------
---------------------------------------
Dated: __________________ By_____________________________________
Name:
Title:
1
117
SCHEDULE 2.1
COMMITMENTS
REVOLVING CREDIT
LENDER COMMITMENT
------ ----------------
BANKBOSTON, N.A. $36,000,000.00
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABN AMRO Bank, N.V. $18,000,000.00
Xxx Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attention: Mr. Xxxx Xxxxxx
CoreStates Bank $18,000,000.00
0000 Xxxxxxxx Xxxxxx
X.X. 0-0-0-00
Xxxxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
First Union $18,000,000.00
Xxx Xxxxx Xxxxx Xxxxxx
XX-00
Xxxxxxxxx, XX 00000-0000
Attention: Xx. Xxx Xxxxxxx
Fleet National Bank $18,000,000.00
0 Xxxxxxx Xxxxxx
XX-XX-X00X
Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Xxxxxx Bank, N.A. $18,000,000.00
0 Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Attention: Mr. Xxxxxxx Xxxxxx
1
000
Xxxxx Xxxxxx Bank $18,000,000.00
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Bayerische Vereinsbank $18,000,000.00
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
The Bank of Nova Scotia $11,000,000.00
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Bank of Scotland $11,000,000.00
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxx
NATEXIS Banque (BFCE) $11,000,000.00
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxx
Imperial Bank $11,000,000.00
0000 X. XxXxxxxxx Xxxx.
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxx
Kredietbank $11,000,000.00
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxx
Xxxxx'x Bank $11,000,000.00
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
2
119
Attention: Xx. Xxxx Xxxxxxxxx
Sumitomo Bank, Ltd. $11,000,000.00
0 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Mr. Al De Gemmis
USTrust $11,000,000.00
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxx
TOTAL: $250,000,000.00
===============
3
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FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT dated as of December 31, 1997
(this "AMENDMENT"), among CHICAGO MINIATURE LAMP, INC. and its DOMESTIC
SUBSIDIARIES (collectively the "BORROWERS"), THE GUARANTORS PARTY TO THE CREDIT
AGREEMENT DEFINED BELOW (the "GUARANTORS"), THE SPECIAL CREDIT PARTIES PARTY TO
THE CREDIT AGREEMENT, THE LENDERS PARTY TO THE CREDIT AGREEMENT (the "LENDERS"),
THE CO-AGENTS PARTY TO THE CREDIT AGREEMENT, comprised of ABN AMRO BANK N.V.,
CORESTATES BANK, N.A., and FIRST UNION NATIONAL BANK, FLEET NATIONAL BANK as
Manager, and BANKBOSTON, N.A., as Administrative and Documentary Agent (the
"ADMINISTRATIVE AGENT").
WHEREAS, pursuant to the Credit Agreement (as defined below), the
Lenders have agreed to make Revolving Credit Loans to the Borrowers in an
aggregate principal amount not in excess of the Revolving Credit Commitment; and
WHEREAS, the Credit Parties, the Lenders and the Administrative Agent
wish to amend the Credit Agreement to revise certain provisions of the Credit
Agreement as provided below and to waive any event of default arising from the
failure to deliver the Fiscal Year 1998 projections by December 31, 1997;
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, the parties hereby agree as follows:
1. REFERENCE TO CREDIT AGREEMENT.
Reference is made to the Amended and Restated Credit Agreement dated as
of October 30, 1997 (as the same may be further amended and restated from time
to time, the "CREDIT AGREEMENT") among the Borrowers, the Guarantors, the
Special Credit Parties party thereto, the Lenders, ABN Amro Bank, N.V.,
Corestates Bank, N.A. and First Union National Bank as Co-Agents, Fleet National
Bank as Manager and the Administrative Agent. Capitalized terms used herein
which are defined in the Credit Agreement have the same meanings herein as
therein, except to the extent that such meanings are amended hereby.
2. AMENDMENTS.
The Credit Parties, the Lenders and the Administrative Agent agree that
the Credit Agreement is hereby amended, effective as of the date hereof, as
follows:
(A) AMENDMENT OF SECTION 1.1 OF THE CREDIT AGREEMENT:
DEFINITIONS. The following definitions are substituted in Section 1.1 of the
Credit Agreement:
i. "DISPOSITION" means any sale, assignment,
transfer or other disposition of any property
(whether now owned or hereafter acquired) by any
Credit Party to any other Person other than another
Credit Party excluding (a) the granting of Liens to
the Administrative Agent on behalf of the Lenders
pursuant to the Collateral Documents, (b) any sale,
assignment, transfer or other disposition of (i) any
property sold or disposed of in the ordinary course
of business and
121
on ordinary business terms,
(ii) any property no longer used or useful in the
business of the Credit Parties, (iii) any Collateral
under and as defined in the Collateral Documents
pursuant to an exercise of remedies by the
Administrative Agent thereunder and (iv) any property
sold outside the previous exceptions with a book
value or appraised value (which ever is higher) of
equal to or less than $2,500,000, and which in the
aggregate with the book or appraised value (whichever
is higher) of all property sold in other sales of a
similar nature during any calendar year, would not
equal or exceed $5,000,000.
ii. "INTEREST PERIOD" means with respect to
any LIBOR Borrowing, the period commencing on the
date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one,
two, three or six months and if available four or
five months thereafter, as CML may elect; provided,
that (i) if any Interest Period would end on a day
other than 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, (ii) any Interest Period that commences
on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding
day in the last calendar month of such Interest
Period) shall end on the last Business Day of the
last calendar month of such Interest Period and (iii)
such Interest Period is available for the applicable
Permitted Currency on the inter-bank currency
deposits market in which the Administrative Agent
customarily funds LIBOR Borrowings. For purposes
hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and
thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
Notwithstanding the foregoing,
(x) if any Interest Period for any Revolving Credit Borrowing
would otherwise end after the Revolving Credit Maturity Date, such
Interest Period shall end on the Revolving Credit Maturity Date, and
(y) notwithstanding the foregoing clause (x), no Interest
Period shall have a duration of less than one month and, if the
Interest Period for any LIBOR Loan would otherwise be a shorter period,
such Loan shall not be available hereunder as a LIBOR Loan for such
period.
iii. "ISSUING LENDER" means BankBoston or
such other Lender who has agreed with the
Administrative Agent and the Credit Parties to be
bound to the terms of this Agreement relative to
being an Issuing Lender, in their respective capacity
as the issuer of Letters of Credit hereunder and any
foreign branch of BankBoston or such other Lender as
issuers of Bank Guaranties.
(B) AMENDMENT TO SECTION 2.3 (a) OF THE CREDIT AGREEMENT.
The following is hereby substituted for Section 2.3 (a) of the Credit
Agreement:
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122
2.3 (a) To request a Revolving Credit Borrowing, CML on behalf
of the Borrowers or CML and any Special Credit Party, if the
Loan is specifically made to or for the benefit of any such
Special Credit Party, shall notify the Administrative Agent of
such request by telephone (i) in the case of a LIBOR Borrowing
denominated in Dollars, not later than 11:00 a.m., Boston,
Massachusetts time, three Business Days before the date of the
proposed Borrowing, (ii) in the case of a LIBOR Borrowing
denominated in an Alternative Currency, not later than 9:00
a.m., Boston, Massachusetts time, two Business Days before the
date of the proposed Borrowing or (iii) in the case of a Base
Rate Borrowing not later than 11:00 a.m., Boston,
Massachusetts time, one Business Day before the date of the
proposed Borrowing; provided that any such notice of a Base
Rate Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.4(e) may be given
not later than 10:00 a.m., Boston, Massachusetts time, on the
date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a
written Borrowing Request in a form approved by the
Administrative Agent and signed by CML and (if appropriate)
such Special Credit Party.
(C) AMENDMENT OF SECTION 2.4 (b) OF THE CREDIT AGREEMENT.
The following is hereby substituted for Section 2.4 (b) of the Credit
Agreement:
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or
the amendment, renewal or extension of an outstanding Letter
of Credit), CML shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have
been approved by each Issuing Lender) to an Issuing Lender
(but only if such Issuing Lender has agreed to be bound as an
Issuing Lender hereunder in a writing delivered to the
Administrative Agent) and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit
is to expire (which shall comply with paragraph (c) of this
Section 2.4), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the applicable
Issuing Lender, the Borrowers also shall submit a letter of
credit application on such Issuing Lender's standard form in
connection with any request for a Letter of Credit. A Letter
of Credit shall be issued, amended, renewed or extended only
if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrowers shall be deemed to represent
and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the aggregate combined LC
Exposure and Bank Guaranties of all of the Issuing Lenders
(determined for these purposes without giving effect to the
participations therein of the Revolving Credit Lenders
pursuant to paragraph (e) of this Section 2.4) shall not
exceed $15,000,000 and (ii) the total Revolving Credit
Exposure shall not exceed the total Revolving Credit
Commitments.
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123
(D) AMENDMENT OF SECTION 2.4 (f) OF THE CREDIT AGREEMENT.
The following is hereby substituted for Section 2.4(f) of the Credit
Agreement:
2.4 (f) REIMBURSEMENT. If any Issuing Lender shall make any LC
Disbursement or Bank Guaranty Disbursement, the Borrowers
shall reimburse the Issuing Lender in respect of such LC
Disbursement or Bank Guaranty Disbursement, as the case may
be, by paying to the Administrative Agent an amount in
immediately available funds equal to the Dollar Amount of such
LC Disbursement or Bank Guaranty Disbursement not later than
12:00 noon, Boston, Massachusetts time, on (i) the Business
Day that CML receives notice of such LC Disbursement or Bank
Guaranty Disbursement, if such notice is received prior to
10:00 a.m., Boston, Massachusetts time; provided that any such
same-day Borrowing shall be a Swing Loan to the extent of the
Swing Loan Availability at such time, or (ii) the Business Day
immediately following the day that CML receives such notice,
if such notice is not received prior to such time, provided
that, if such LC Disbursement or Bank Guaranty Disbursement is
not less than $500,000 in Dollar Amount, the Borrowers may,
subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.3 that such payment be
financed with a Revolving Credit Base Rate Borrowing in an
equivalent amount and, to the extent so financed, the
Borrowers' obligation to make such payment shall be discharged
and replaced by the resulting Revolving Credit Base Rate
Borrowing. Regardless of the source of such reimbursement, the
Administrative Agent will make payment of the amount of such
reimbursement to the applicable Issuing Lender upon receipt of
payment from the Borrowers.
If the Borrowers fail to make such payment when due,
the Administrative Agent shall notify each Revolving Credit
Lender of the applicable LC Disbursement or Bank Guaranty
Disbursement, the payment then due from the Borrowers in
respect thereof and such Revolving Credit Lender's Applicable
Percentage thereof. Promptly following receipt of such notice,
each Revolving Credit Lender shall pay to the Administrative
Agent the Dollar Amount of its Applicable Percentage of the
payment then due from the Borrowers, in the same manner as
provided in Section 2.5 with respect to Revolving Credit Loans
made by such Lender (and Section 2.5 shall apply to the
payment obligations of the Revolving Credit Lenders, treating
each such payment as a Loan for this purpose), and the
Administrative Agent shall promptly pay to the applicable
Issuing Lender the amounts so received by it from the
Revolving Credit Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrowers
pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the applicable Issuing Lender or,
to the extent that the Revolving Credit Lenders have made
payments pursuant to this paragraph to reimburse the
applicable Issuing Lender, then to such Lenders and the
applicable Issuing Lender as their interests may appear. Any
payment made by a Revolving Credit Lender pursuant to this
paragraph to reimburse the applicable Issuing Lender for any
LC Disbursement or Bank Guaranty Disbursement shall not
constitute a Loan and shall not relieve the Borrowers of their
obligation to reimburse such LC Disbursement or Bank Guaranty
Disbursement, as the case may be.
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(E) AMENDMENT OF SECTION 6.1 (e) OF THE CREDIT AGREEMENT.
The following is hereby substituted for Section 6.1 (e):
6.1 (e) as soon as available and in any event within
30 days after the beginning of the fiscal year of CML (except
the fiscal year starting December 1, 1997 for which such
delivery shall be within 60 days after the beginning of such
fiscal year), statements of forecasted consolidated income for
the Credit Parties for each fiscal quarter in such fiscal year
and a forecasted consolidated balance sheet of the Credit
Parties, together with supporting assumptions which were
reasonable when made, as at the end of each fiscal quarter,
all prepared in good faith in reasonable detail and consistent
with CML's and CML's past practices in preparing projections
and otherwise reasonably satisfactory in scope to the
Administrative Agent;
(F) AMENDMENT OF SECTION 8.1(m)(II) OF THE CREDIT
AGREEMENT. The following is hereby substituted for Section 8.1(m)(ii) of
the Credit Agreement:
8.1 (m) (ii) any of Xxxxx X. Xxxx or Xxxxxx Xxxxxxx shall
cease to be employed by CML in the position each held on the
Effective Date; provided that if Xxxxxx Xxxxxxx shall cease to
be employed by CML in his current position at any time one
year or more after the Effective Date, it shall not be an
Event of Default if (i) CML promptly upon receiving notice of
Xx. Xxxxxxx'x proposed or actual change of status notifies the
Administrative Agent of such actual or proposed change of
status with details as to timing of such change of status and
(ii) upon the earlier of ninety (90) days (a) after CML
receives notice of Xx. Xxxxxxx'x change of status or (b) Xx.
Xxxxxxx'x actual change of status, Xx. Xxxxxxx is replaced by
such individual or individuals as are reasonably satisfactory
to the Required Revolving Credit Lenders.
3. WAIVER. The Required Revolving Credit Lenders do hereby
waive any Event of Default arising from the failure to deliver the projections
as required under Section 6.1 (e) of the Credit Agreement prior to this
Amendment.
4. NO DEFAULT; REPRESENTATIONS AND WARRANTIES, ETC.
The Credit Parties hereby confirm that: (a) the representations and
warranties of the Credit Parties contained in Article IV of the Credit Agreement
are true on and as of the date hereof as if made on such date (except to the
extent that such representations and warranties expressly relate to an earlier
date); (b) the Credit Parties are in compliance in all material respects with
all of the terms and provisions set forth in the Credit Agreement on their part
to be observed or performed thereunder; and (c) after giving effect to this
Amendment, no Event of Default specified in Article VII of the Credit Agreement,
nor any event which with the giving of notice or expiration of any applicable
grace period or both would constitute such an Event of Default, shall have
occurred and be continuing.
5. CONDITIONS TO THIS AMENDMENT.
-5-
125
Concurrently herewith (and as conditions to the Lenders' consent to
this Amendment), the Credit Parties will furnish the Administrative Agent with
the following:
(a) Appropriate corporate resolutions, if necessary, and such
other certificates, instruments and documents as the Administrative Agent may
reasonably request for the purpose of implementing or effectuating the
provisions of the Credit Agreement, as hereby amended, or this Amendment.
(b) Such other documents and instruments as the Administrative
Agent may reasonably require in order to put this Amendment into full force and
effect.
6. MISCELLANEOUS.
(a) Except to the extent specifically amended hereby, the
Credit Agreement, the Loan Documents and all related documents shall remain in
full force and effect. Whenever the terms or sections amended hereby shall be
referred to in the Credit Agreement, Loan Documents or such other documents
(whether directly or by incorporation into other defined terms), such defined
terms shall be deemed to refer to those terms or sections as amended by this
Amendment.
(b) This Amendment may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an original,
but all counterparts shall together constitute one instrument.
(c) This Amendment shall be governed by the laws of the
Commonwealth of Massachusetts and shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
(d) The Credit Parties agree to pay all reasonable expenses,
including legal fees and disbursements incurred by the Lenders in connection
with this Amendment and the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
which shall be deemed to be a sealed instrument as of the date first above
written.
BORROWERS:
CHICAGO MINIATURE LAMP, INC.
CHICAGO MINIATURE LAMP -
SYLVANIA LIGHTING INTERNATIONAL, INC.
CML AIR, INC.
CML BALLAST ,INC.
CML FIBEROPTICS, INC.
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126
ELECTRO FIBEROPTICS CORP.
POWER LIGHTING PRODUCTS, INC.
(f/k/a/ Valmont Electric, Inc.)
VBT, INC.
By______________________________
Name:Xxxxx X. Xxxx
Title: President
BADALEX LIMITED
By______________________________
Name:Xxxxx X. Xxxx
Title: Director
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127
Each of the undersigned has guaranteed the Obligations of the Borrowers
to the Lenders pursuant to the terms of Article III of the Credit Agreement. By
executing this Consent of Guarantors, each undersigned Guarantor hereby
absolutely and unconditionally reaffirms the provisions of such Article III and
acknowledges and agrees to the terms and conditions of this Amendment and the
terms and conditions of the Credit Agreement as amended hereby.
GUARANTORS:
A&S ELECTRIC spol s.r.o. Gmbh
ALBA LIGHT DESIGN GmbH
ALBA SPEZIALLAMPEN GmbH
ALBA SPEZIALLAMPEN HOLDING, GmbH
ALBA TECHNOLOGY (M) Sdr. Bhd.
XXXXXX GmbH
BADALEX LIMITED
BSC XXXXXX GmbH & CO.
CCC DE MEXICO, S.A. DE C.V.
CHICAGO MINIATURE LAMP EUROPE LIMITED
CHICAGO MINIATURE LAMP - SYLVANIA
LIGHTING INTERNATIONAL I, B.V.
IDI INTERNACIONAL S.A.
W. XXXXXXXX GmbH und Co. KG
X. XXXXXXXX GRUNDSTUCKSGESELLSCHAFT
GmbH und CO.
By______________________________
Name:Xxxxx X. Xxxx
Title: Director
CHICAGO MINIATURE LAMP (CANADA) INC.
By________________________________
Name: Xxxxx Xxxx
Title: President
-8-
128
ADMINISTRATIVE AGENT
BANKBOSTON, N.A.
as Administrative Agent
By_________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
CO-AGENTS:
ABN AMRO BANK N.V.
as Co-Agent
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
CORESTATES BANK, N.A.
as Co-Agent
By_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
as Co-Agent
By_________________________________
Name:
Title:
MANAGER:
FLEET NATIONAL BANK
as Manager
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129
By_________________________________
Name:
Title:
LENDERS:
BANKBOSTON, N.A.
By_________________________________
Name:Xxxxxxx X. Xxxxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
CORESTATES BANK, N.A.
By_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By_________________________________
Name:
Title:
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130
FLEET NATIONAL BANK
By_________________________________
Name:
Title:
BAYERISCHE VEREINSBANK AG
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
MELLON BANK, N.A.
By_________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By_________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By_________________________________
Name:
Title:
BANK OF SCOTLAND
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131
By_________________________________
Name:
Title:
NATEXIS BANQUE (BFCE)
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
IMPERIAL BANK
By_________________________________
Name:
Title:
KREDIETBANK N.V.
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
LLOYDS BANK PLC
By_________________________________
Name:
Title:
-12-
132
By_________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
USTRUST
By_________________________________
Name:
Title:
-13-
133
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT dated as of March 4, 1998
(this "AMENDMENT"), among CHICAGO MINIATURE LAMP, INC. and its DOMESTIC
SUBSIDIARIES (collectively the "BORROWERS"), THE GUARANTORS PARTY TO THE CREDIT
AGREEMENT DEFINED BELOW (the "GUARANTORS"), THE SPECIAL CREDIT PARTIES PARTY TO
THE CREDIT AGREEMENT, THE LENDERS PARTY TO THE CREDIT AGREEMENT (the "LENDERS"),
THE CO-AGENTS PARTY TO THE CREDIT AGREEMENT, comprised of ABN AMRO BANK N.V.,
CORESTATES BANK, N.A., and FIRST UNION NATIONAL BANK, FLEET NATIONAL BANK as
Manager, and BANKBOSTON, N.A., as Administrative and Documentary Agent (the
"ADMINISTRATIVE AGENT").
WHEREAS, pursuant to the Credit Agreement (as defined below), the
Lenders have agreed to make Revolving Credit Loans to the Borrowers in an
aggregate principal amount not in excess of the Revolving Credit Commitment; and
WHEREAS, the Credit Parties, the Lenders and the Administrative Agent
wish to amend the Credit Agreement to revise certain provisions of the Credit
Agreement as provided below;
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, the parties hereby agree as follows:
1. REFERENCE TO CREDIT AGREEMENT.
Reference is made to the Amended and Restated Credit Agreement dated as
of October 30, 1997 (as the same may be further amended and restated from time
to time, the "CREDIT AGREEMENT") among the Borrowers, the Guarantors, the
Special Credit Parties party thereto, the Lenders, ABN Amro Bank, N.V.,
Corestates Bank, N.A. and First Union National Bank as Co-Agents, Fleet National
Bank as Manager and the Administrative Agent. Capitalized terms used herein
which are defined in the Credit Agreement have the same meanings herein as
therein, except to the extent that such meanings are amended hereby.
2. AMENDMENTS.
The Credit Parties, the Lenders and the Administrative Agent agree that
the Credit Agreement is hereby amended, effective as of the date hereof, as
follows:
(a) AMENDMENT OF SECTION 1.1 OF THE CREDIT AGREEMENT:
DEFINITIONS. The following definitions are substituted in Section 1.1 of
the Credit Agreement:
"PERMITTED ACQUISITIONS" means acquisition by any of the
Borrowers upon the following conditions:
(a) The line of business acquired is substantially
similar to the Borrowers' existing business.
134
(b) Maximum additional Revolving Credit Loans for any single
acquisition or series of related acquisitions may not exceed
$25,000,000.
(c) Any obligations due to a seller of any such acquired
company or any other debt incurred to finance such acquisition must be
subordinated to the obligations due the Lenders upon terms acceptable
to the Required Revolving Credit Lenders.
(d) A Borrower must be the surviving entity of any merger or
other corporate reorganization related to any such acquisition.
(e) The Borrowers must demonstrate on a pro forma basis that
the Borrowers and the acquired company would have complied with all
financial covenants on a combined basis based for the four quarters
ending prior to the date of the acquisition.
(f) No default or Events of Default shall exist or occur or be
continuing at the time of or after giving effect to any proposed
acquisition.
Notwithstanding the forgoing the Borrowers shall not be required to
demonstrate compliance under subparagraph (e) of this definition for any
acquisition which meets all of the preceding criteria and for which the
aggregate of the (i) purchase price paid, (ii) notes and other sums payable to
the seller not included in clause (i) and (iii) obligations assumed is equal or
less than $3,500,000.
(b) AMENDMENT OF SECTION 2.11 (C) OF THE CREDIT AGREEMENT.
Section 2.11 (c) is deleted from the Credit Agreement retroactive to prior to
the first advance under the Credit Agreement. The fee under Section 2.11 (c)
shall not apply to any Alternative Currency Loan made under the Credit Agreement
prior to and after the date hereof.
(c) AMENDMENT OF SECTION 6.7 OF THE CREDIT AGREEMENT. Section 6.7 is
deleted from the Credit Agreement and the following is added to read as follows:
6.7 FISCAL YEAR. To enable the ready and consistent determination of
compliance with the covenants set forth in Section 7 hereof, the Credit Parties
will not change the last day of their fiscal year from the Sunday closest to
December 31 of each year, or the last day of the first three fiscal quarters in
each of its fiscal years from March, June and September, respectively.
(d) AMENDMENT OF SECTION 7.1 (H) OF THE CREDIT AGREEMENT.
Section 7.1 (h) is deleted from the Credit Agreement in its entirety and the
following is added to read as follows:
(h) Additional Indebtedness of any Credit Party (determined on a
consolidated basis without duplication in accordance with GAAP) for
Funded Debt in an aggregate principal amount , which when added to
Indebtedness incurred pursuant to Section 7.1 (e) and 7.1 (g) does not
exceed $30,000,000 at any one time outstanding.
3. NO DEFAULT; REPRESENTATIONS AND WARRANTIES, ETC.
-2-
135
The Credit Parties hereby confirm that: (a) the representations and
warranties of the Credit Parties contained in Section 4 of the Credit Agreement
are true on and as of the date hereof as if made on such date (except to the
extent that such representations and warranties expressly relate to an earlier
date); (b) the Credit Parties are in compliance in all material respects with
all of the terms and provisions set forth in the Credit Agreement on their part
to be observed or performed thereunder; and (c) after giving effect to this
Amendment, no Event of Default specified in Section 8 of the Credit Agreement,
nor any event which with the giving of notice or expiration of any applicable
grace period or both would constitute such an Event of Default, shall have
occurred and be continuing.
4. CONDITIONS TO THIS AMENDMENT.
Concurrently herewith (and as conditions to the Lenders' consent to
this Amendment), the Credit Parties will furnish the Administrative Agent with
the following:
(a) Appropriate corporate resolutions, if necessary, and such
other certificates, instruments and documents as the Administrative Agent may
reasonably request for the purpose of implementing or effectuating the
provisions of the Credit Agreement, as hereby amended, or this Amendment.
(b) Such other documents and instruments as the Administrative
Agent may reasonably require in order to put this Amendment into full force and
effect.
5. MISCELLANEOUS.
(a) Except to the extent specifically amended hereby, the
Credit Agreement, the Loan Documents and all related documents shall remain in
full force and effect. Whenever the terms or sections amended hereby shall be
referred to in the Credit Agreement, Loan Documents or such other documents
(whether directly or by incorporation into other defined terms), such defined
terms shall be deemed to refer to those terms or sections as amended by this
Amendment.
(b) This Amendment may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an original,
but all counterparts shall together constitute one instrument.
BALANCE OF PAGE LEFT INTENTIONALLY BLANK
-3-
136
PAGE LEFT INTENTIONALLY BLANK
-----------------------------
-4-
137
(c) This Amendment shall be governed by the laws of the
Commonwealth of Massachusetts and shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
(d) The Credit Parties agree to pay all reasonable expenses,
including legal fees and disbursements incurred by the Lenders in connection
with this Amendment and the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment which shall be deemed to be a sealed instrument as of the date first
above written.
BORROWERS:
CHICAGO MINIATURE LAMP, INC.
CHICAGO MINIATURE LAMP -
SYLVANIA LIGHTING INTERNATIONAL, INC.
CML AIR, INC.
CML BALLAST ,INC.
CML FIBEROPTICS, INC.
ELECTRO FIBEROPTICS CORP.
POWER LIGHTING PRODUCTS, INC.
(f/k/a/ Valmont Electric, Inc.)
VBT, INC.
By______________________________
Name:Xxxxx X. Xxxx
Title: President
BADALEX LIMITED
By______________________________
Name:Xxxxx X. Xxxx
Title: Director
-5-
138
-6-
139
Each of the undersigned has guaranteed the Obligations of the Borrowers
to the Lenders pursuant to the terms of Article III of the Credit Agreement. By
executing this Consent of Guarantors, each undersigned Guarantor hereby
absolutely and unconditionally reaffirms the provisions of such Article III and
acknowledges and agrees to the terms and conditions of this Amendment and the
terms and conditions of the Credit Agreement as amended hereby.
GUARANTORS:
A&S ELECTRIC spol s.r.o. Gmbh
ALBA LIGHT DESIGN GmbH
ALBA SPEZIALLAMPEN GmbH
ALBA SPEZIALLAMPEN HOLDING, GmbH
ALBA TECHNOLOGY (M) Sdr. Bhd.
XXXXXX GmbH
BADALEX LIMITED
BSC XXXXXX GmbH & CO.
CCC DE MEXICO, S.A. DE C.V.
CHICAGO MINIATURE LAMP EUROPE LIMITED
CHICAGO MINIATURE LAMP - SYLVANIA
LIGHTING INTERNATIONAL I, B.V.
IDI INTERNACIONAL S.A.
W. XXXXXXXX GmbH und Co. KG
X. XXXXXXXX GRUNDSTUCKSGESELLSCHAFT
GmbH und CO.
By______________________________
Name:Xxxxx X. Xxxx
Title: Director
-7-
140
CHICAGO MINIATURE LAMP (CANADA) INC.
By________________________________
Name: Xxxxx Xxxx
Title: President
ADMINISTRATIVE AGENT
BANKBOSTON, N.A.
as Administrative Agent
By_________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
CO-AGENTS:
ABN AMRO BANK N.V.
as Co-Agent
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
CORESTATES BANK, N.A.
as Co-Agent
By_________________________________
Name:
Title:
-8-
141
FIRST UNION NATIONAL BANK
as Co-Agent
By_________________________________
Name:
Title:
MANAGER:
FLEET NATIONAL BANK
as Manager
By_________________________________
Name:
Title:
LENDERS:
BANKBOSTON, N.A.
By_________________________________
Name:Xxxxxxx X. Xxxxxxxx
Title:Director
ABN AMRO BANK N.V.
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
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142
CORESTATES BANK, N.A.
By_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By_________________________________
Name:
Title:
FLEET NATIONAL BANK
By_________________________________
Name:
Title:
BAYERISCHE VEREINSBANK AG
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
MELLON BANK, N.A.
By_________________________________
Name:
Title:
-10-
000
XXXXX XXXXXX XXXX AND TRUST COMPANY
By_________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By_________________________________
Name:
Title:
BANK OF SCOTLAND
By_________________________________
Name:
Title:
NATEXIS BANQUE (BFCE)
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
IMPERIAL BANK
By_________________________________
Name:
Title:
-11-
144
KREDIETBANK N.V.
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
LLOYDS BANK PLC
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
USTRUST
By_________________________________
Name:
Title:
-12-
145
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT dated as of March 31, 1998
(this "AMENDMENT"), among CHICAGO MINIATURE LAMP, INC. and its DOMESTIC
SUBSIDIARIES (collectively the "BORROWERS"), THE GUARANTORS PARTY TO THE CREDIT
AGREEMENT DEFINED BELOW (the "GUARANTORS"), THE SPECIAL CREDIT PARTIES PARTY TO
THE CREDIT AGREEMENT, THE LENDERS PARTY TO THE CREDIT AGREEMENT (the "LENDERS"),
THE CO-AGENTS PARTY TO THE CREDIT AGREEMENT, comprised of ABN AMRO BANK N.V.,
CORESTATES BANK, N.A., and FIRST UNION NATIONAL BANK, FLEET NATIONAL BANK as
Manager, and BANKBOSTON, N.A., as Administrative and Documentary Agent (the
"ADMINISTRATIVE AGENT").
WHEREAS, pursuant to the Credit Agreement (as defined below), the
Lenders have agreed to make Revolving Credit Loans to the Borrowers in an
aggregate principal amount not in excess of the Revolving Credit Commitment; and
WHEREAS, the Credit Parties, the Lenders and the Administrative Agent
wish to amend the Credit Agreement to reflect all of the forgoing provisions of
the Credit Agreement and the other Loan Documents as provided below;
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, the parties hereby agree as follows:
1. REFERENCE TO CREDIT AGREEMENT.
Reference is made to the Amended and Restated Credit Agreement dated as
of October 30, 1997 (as amended and in effect from time to time, the "CREDIT
AGREEMENT") among the Borrowers, the Guarantors, the Special Credit Parties
party thereto, the Lenders, ABN Amro Bank, N.V., Corestates Bank, N.A. and First
Union National Bank as Co-Agents, Fleet National Bank as Manager and the
Administrative Agent. Capitalized terms used herein which are defined in the
Credit Agreement have the same meanings herein as therein, except to the extent
that such meanings are amended hereby.
2. AMENDMENTS.
The Credit Parties, the Lenders and the Administrative Agent agree that
the Credit Agreement and the Loan Documents are hereby amended, effective as of
the date hereof, as follows:
(a) AMENDMENT OF CREDIT AGREEMENT AND LOAN DOCUMENTS AS TO
CHANGE OF NAME: Effective April 27, 1998, all references to Chicago Miniature
Lamp, Inc. or CML in any of the Loan Documents shall be deemed to be references
to SLI, Inc., the successor by name change to Chicago Miniature Lamp, Inc. All
of the terms and conditions of the Loan Documents which apply to CML shall apply
to SLI, Inc. to the same extent and without further amendment or modification.
146
(b) AMENDMENT OF SECTION 2.10 (b) (II) OF THE CREDIT
AGREEMENT. Section 2.10 (b) (ii) is deleted from the Credit Agreement in its
entirety and the following is added to read as follows:
(ii) INCURRENCE OF DEBT OR OFFERING OF EQUITY. Without
limiting the obligation of the Borrowers to obtain the consent of the
Required Revolving Credit Lenders to any incurrence of Indebtedness or
sale of equity securities not otherwise permitted hereunder, the
Borrowers agree, on or prior to the closing of any incurrence of debt
pursuant to Section 7.1(h) or sale of equity securities by any Credit
Party to deliver to the Administrative Agent a statement certified by a
Financial Officer, in form and detail reasonably satisfactory to the
Administrative Agent, of the estimated amount of the Net Cash Payments
of such incurrence of debt or sale of equity securities that will (on
the date of such incurrence or sale) be received by any Credit Party in
cash and the Borrowers will prepay the Loans hereunder (and provide
cover for LC Exposure and the Bank Guaranties as specified in Section
2.4(j) upon the date of such incurrence of debt or such sale of
securities, in an aggregate amount equal to 100% of such estimated
amount of the Net Cash Payments from such incurrence of debt or 50% of
such estimated amount of the Net Cash Payments from such sale of equity
securities received by any Credit Party, such prepayment to be effected
in each case in the manner and to the extent specified in clause (iv)
of this Section 2.10(b); provided that such prepayment shall not reduce
any of the Revolving Credit Commitments.
3. NO DEFAULT; REPRESENTATIONS AND WARRANTIES, ETC.
The Credit Parties hereby confirm that: (a) the representations and
warranties of the Credit Parties contained in Section 4 of the Credit Agreement
are true on and as of the date hereof as if made on such date (except to the
extent that such representations and warranties expressly relate to an earlier
date); (b) the Credit Parties are in compliance in all material respects with
all of the terms and provisions set forth in the Credit Agreement on their part
to be observed or performed thereunder; and (c) after giving effect to this
Amendment, no Event of Default specified in Section 8 of the Credit Agreement,
nor any event which with the giving of notice or expiration of any applicable
grace period or both would constitute such an Event of Default, shall have
occurred and be continuing.
4. CONDITIONS TO THIS AMENDMENT.
Concurrently herewith (and as conditions to the Lenders' consent to
this Amendment), the Credit Parties will furnish and covenant to furnish the
Administrative Agent with the following:
(a) Delivery no later than July 31, 1998 of all necessary documents to
be filed in the appropriate offices of each Governmental Authority which the
Administrative Agent deems necessary and appropriate to reflect the change of
name of CML to SLI, Inc. so that the Collateral Documents will remain in full
force and effect and continue to perfect a First Priority Lien in favor of the
Administrative Agent for benefit of the Lenders.
-2-
147
(b) Delivery at the execution of this amendment of a substitute note to
any Lender which requests such a substitute note evidencing the Obligations due
to such Lender under its Revolving Credit Commitment.
(c) Appropriate corporate resolutions, if necessary, and such other
certificates, instruments and documents as the Administrative Agent may
reasonably request for the purpose of implementing or effectuating the
provisions of the Credit Agreement, as hereby amended, or this Amendment;
including, without limitation, evidence of the change of name to SLI, Inc. and
evidence of the filing of such change of name with the appropriate Governmental
Authority accompanied by an appropriate good standing certificate for SLI, Inc.
by May 8, 1998.
(d) Such other documents and instruments as the Administrative Agent
may reasonably require in order to put this Amendment into full force and
effect.
5. MISCELLANEOUS.
(a) CML has taken no other action which amends or proposes to
amend its charter and by-laws other than the proposed change of its name to SLI,
Inc., and CML does hereby reaffirm its Obligations to the Administrative Agent
and the Lenders under the Loan Documents.
(b) Except to the extent specifically amended hereby, the Credit
Agreement, the Loan Documents and all related documents shall remain in full
force and effect. Whenever the terms or sections amended hereby shall be
referred to in the Credit Agreement, Loan Documents or such other documents
(whether directly or by incorporation into other defined terms), such defined
terms shall be deemed to refer to those terms or sections as amended by this
Amendment.
(c) This Amendment may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an original,
but all counterparts shall together constitute one instrument.
(d) This Amendment shall be governed by the laws of the
Commonwealth of Massachusetts and shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
(e) The Credit Parties agree to pay all reasonable expenses,
including legal fees and disbursements incurred by the Lenders in connection
with this Amendment and the transactions contemplated hereby.
-3-
148
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
which shall be deemed to be a sealed instrument as of the date first above
written.
BORROWERS:
CHICAGO MINIATURE LAMP, INC.
CHICAGO MINIATURE LAMP -
SYLVANIA LIGHTING INTERNATIONAL, INC.
CML AIR, INC.
CML BALLAST, INC.
CML FIBEROPTICS, INC.
ELECTRO FIBEROPTICS CORP.
POWER LIGHTING PRODUCTS, INC.
VBT, INC.
By______________________________
Name:Xxxxx X. Xxxx
Title: President
BADALEX LIMITED
By______________________________
Name:Xxxxx X. Xxxx
Title: Director
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149
Each of the undersigned has guaranteed the Obligations of the Borrowers
to the Lenders pursuant to the terms of Article III of the Credit Agreement. By
executing this Consent of Guarantors, each undersigned Guarantor hereby
absolutely and unconditionally reaffirms the provisions of such Article III and
acknowledges and agrees to the terms and conditions of this Amendment and the
terms and conditions of the Credit Agreement as amended hereby.
GUARANTORS:
A&S ELECTRIC spol s.r.o.
ALBA LIGHT DESIGN GmbH
ALBA SPEZIALLAMPEN GmbH
ALBA SPEZIALLAMPEN HOLDING, GmbH
ALBA TECHNOLOGY (M) Sdr. Bhd.
XXXXXX GmbH
BADALEX LIMITED
BSC XXXXXX GmbH & CO.
CCC DE MEXICO, S.A. DE C.V.
CHICAGO MINIATURE LAMP EUROPE LIMITED
CHICAGO MINIATURE LAMP - SYLVANIA
LIGHTING INTERNATIONAL I, B.V.
IDI INTERNACIONAL S.A.
W. XXXXXXXX GmbH und Co. KG
X. XXXXXXXX GRUNDSTUCKSGESELLSCHAFT
GmbH und CO.
By______________________________
Name:Xxxxx X. Xxxx
Title: Director
CHICAGO MINIATURE LAMP (CANADA) INC.
By________________________________
-5-
150
Name: Xxxxx Xxxx
Title: President
ADMINISTRATIVE AGENT
BANKBOSTON, N.A.
as Administrative Agent
By__________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
CO-AGENTS:
ABN AMRO BANK N.V.
as Co-Agent
By__________________________________
Name:
Title:
By__________________________________
Name:
Title:
CORESTATES BANK, N.A.
as Co-Agent
By__________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
as Co-Agent
By_________________________________
Name:
Title:
-6-
151
MANAGER:
FLEET NATIONAL BANK
as Manager
By_________________________________
Name:
Title:
LENDERS:
BANKBOSTON, N.A.
By_________________________________
Name:Xxxxxxx X. Xxxxxxxx
Title:Director
ABN AMRO BANK N.V.
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
CORESTATES BANK, N.A.
By_________________________________
Name:
Title:
-7-
152
FIRST UNION NATIONAL BANK
By_________________________________
Name:
Title:
FLEET NATIONAL BANK
By_________________________________
Name:
Title:
BAYERISCHE VEREINSBANK AG
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
MELLON BANK, N.A.
By_________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By_________________________________
Name:
Title:
-8-
000
XXX XXXX XX XXXX XXXXXX
By_________________________________
Name:
Title:
BANK OF SCOTLAND
By_________________________________
Name:
Title:
NATEXIS BANQUE (BFCE)
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
IMPERIAL BANK
By_________________________________
Name:
Title:
-9-
154
KREDIETBANK N.V.
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
LLOYDS BANK PLC
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
USTRUST
By_________________________________
Name:
Title:
-10-
