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EXHIBIT (b)(1)
EXECUTION COPY
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 3, 1997
among
INSILCO CORPORATION
and
INSILCO DEUTSCHLAND GMBH
as Borrowers
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS ISSUING BANKS
and
THE FIRST NATIONAL BANK OF CHICAGO
and
XXXXXXX XXXXX CREDIT PARTNERS L.P.
as Syndication Agents
and
CITICORP USA, INC.
as Administrative Agent
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CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of July 3,
1997 (as amended, supplemented or otherwise modified from time to time, this
"Agreement"), entered into among Insilco Corporation, a Delaware corporation
(with its successors and permitted assigns, the "Company"), Insilco Deutschland
GmbH, a corporation organized under the laws of the Federal Republic of Germany
and wholly owned Subsidiary of the Company ("Insilco GmbH"), certain other
foreign subsidiaries of the Company designated herein as Foreign Borrowers
(together with Insilco GmbH, the "Foreign Borrowers"; and together with the
Company, the "Borrowers"), the institutions from time to time party hereto as
Lenders, whether by execution of this Agreement or an Assignment and Acceptance,
the institutions from time to time party hereto as Issuing Banks, whether by
execution of this Agreement or an Assignment and Acceptance, The First National
Bank of Chicago ("First Chicago") and Xxxxxxx Sachs Credit Partners L.P.
("GSCP"), in their separate capacities as syndication agents for the Lenders and
the Issuing Banks (collectively, the "Co-Agents"), and Citicorp USA, Inc.
("Citicorp"), in its separate capacity as administrative and collateral agent
for the Lenders and Issuing Banks (with its successors in such capacity, the
"Administrative Agent"), amends and restates in its entirety that certain Credit
Agreement dated as of October 21, 1994, as amended through the date hereof (the
"Existing Credit Agreement"), among the Company, the Lenders, the Issuing Banks,
Citicorp and GSCP, as Co-Agents (the "Existing Co-Agents") and the
Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Company has requested the Administrative Agent and the
Lenders to amend certain terms of the Existing Credit Agreement, among other
things, (i) to increase the Revolving Credit Commitments from $130,000,000 to
$200,000,000, which amount will be reduced on a scheduled basis during the term
of this Agreement, (ii) to extend the Revolving Credit Termination Date from
March 31, 2001 to July 8, 2003, (iii) to refinance the entire outstanding amount
of the Term Loans on the Effective Date (as defined herein) with proceeds of new
Revolving Loans, (iv) to permit the Company to issue Subordinated Notes (as
defined herein) by December 31, 1997 in an aggregate principal amount of up to
$175,000,000, the net proceeds of which will be used, among other things, to
finance the redemption or repurchase of the Company's Common Stock and (vi) to
permit the Company and the Foreign Borrowers to borrow Revolving Loans in
Alternative Currencies (as defined herein);
WHEREAS, the Company, the Lenders, the Existing Co-Agents and the
Administrative Agent have agreed to amend and
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restate the Existing Credit Agreement to provide for such amendments on the
terms set forth in this Agreement, which Agreement shall become effective upon
satisfaction of certain conditions precedent set forth herein;
NOW, THEREFORE, in consideration of the above premises, the
Borrowers, the Lenders, the Issuing Banks, the Co-Agents and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms. In addition to the terms defined
above, the following terms used herein shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined:
"Accommodation Obligation" means (without duplication) any
Contractual Obligation, contingent or otherwise, of one Person with respect to
any Indebtedness, obligation or liability of another, if the primary purpose or
intent thereof by the Person incurring the Accommodation Obligation is to
provide assurance to the obligee of such Indebtedness, obligation or liability
of another that such Indebtedness, obligation or liability shall be paid or
discharged, or that any agreements relating thereto shall be complied with, or
that the holders thereof shall be protected (in whole or in part) against loss
in respect thereof including, without limitation, direct and indirect
guarantees, endorsements (except for collection or deposit in the ordinary
course of business), notes co-made, recourse agreements, take-or-pay agreements,
keep-well agreements, agreements to purchase security therefor (other than such
agreements to purchase in the ordinary course of business) or to provide funds
for the payment or discharge thereof, agreements to maintain solvency, assets,
level of income, or other financial condition, and agreements to make payment
other than for value received.
"Administrative Agent" is defined in the preamble hereto and
shall include any successor Administrative Agent appointed pursuant to Section
12.07.
"Affiliate" of any specified Person means any other Person (i)
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person, (ii)
which beneficially owns or holds 5% or more of any class of the Voting Stock or
other equity interest of such specified Person or (iii) of which 5% or more of
the Voting Stock or other equity interest is beneficially owned or held by such
specified Person or a Subsidiary of such specified Person. For the purposes of
this definition, (i)
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"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing
and (ii) Affiliates of the Company and Subsidiaries of the Company shall not
include the Company and Subsidiaries of the Company.
"Agents" means, collectively, the Administrative Agent
and each of the Co-Agents.
"Alternative Currency" means (i) the lawful currency of the
United Kingdom, Japan, France or the Federal Republic of Germany and (ii) any
additional currency approved by the Administrative Agent (subject to the
Administrative Agent's confirmation that funding in such currency is generally
provided by the Lenders); provided that in the case of any such currency, such
currency is freely transferable and convertible into Dollars.
"Applicable Base Rate Margin" means at all times during the
applicable periods set forth below, the applicable rate per annum set forth
below under the heading "Applicable Base Rate Margin":
Applicable
Leverage Ratio Base Rate Margin
-------------- ----------------
greater than 5.00 to 1 0.75%
greater than 4.50 to 1
less than or equal to 5.00 to 1 0.375%
greater than 4.00 to 1
less than or equal to 4.50 to 1 0.125%
less than or equal to 4.00 to 1 0%
The Leverage Ratio used to compute the Applicable Base Rate Margin following the
Effective Date shall be the Leverage Ratio set forth in the Compliance
Certificate most recently delivered by the Company to the Administrative Agent
pursuant to Section 7.01(d); changes in the Applicable Base Rate Margin
resulting from a change in the Leverage Ratio shall become effective as to all
Base Rate Loans upon delivery by the Company to the Administrative Agent of a
new Compliance Certificate pursuant to Section 7.01(d) and notice by the Company
to the Administrative Agent that a rate change is required. Notwithstanding
anything to the contrary set forth in this Agreement (including the then
effective Leverage Ratio), the Applicable Base Rate Margin shall be 0.125% for
the period commencing on the Effective Date and ending on the delivery of the
Compliance Certificate in respect of the Borrowers' second fiscal quarter of
Fiscal Year 1997. If
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the Company shall fail to deliver a Compliance Certificate within 50 days after
the end of any fiscal quarter (or within 95 days, in the case of the last fiscal
quarter of any Fiscal Year) as required pursuant to Section 7.01(d), the
Applicable Base Rate Margin from and including the 51st (or 96th, as the case
may be) day after the end of such fiscal quarter to but not including the date
the Company delivers to the Administrative Agent a Compliance Certificate shall
conclusively equal the highest Applicable Base Rate Margin set forth above.
"Applicable Eurocurrency Rate Margin" means at all times
during the applicable periods set forth below, the applicable rate per annum set
forth below under the heading "Applicable Eurocurrency Rate Margin":
Applicable
Leverage Ratio Eurocurrency Rate Margin
-------------- ------------------------
greater than 5.00 to 1 2.00%
greater than 4.50 to 1
less than or equal to 5.00 to 1 1.625%
greater than 4.00 to 1
less than or equal to 4.50 to 1 1.375%
greater than 3.50 to 1
less than or equal to 4.00 to 1 1.25%
greater than 3.00 to 1
less than or equal to 3.50 to 1 1.00%
less than or equal to 3.00 to 1 0.875%
The Leverage Ratio used to compute the Applicable Eurocurrency Rate Margin
following the Effective Date shall be the Leverage Ratio set forth in the
Compliance Certificate most recently delivered by the Company to the
Administrative Agent pursuant to Section 7.01(d); changes in the Applicable
Eurocurrency Margin resulting from a change in the Leverage Ratio shall become
effective as to all Eurocurrency Rate Loans upon delivery by the Company to the
Administrative Agent of a new Compliance Certificate pursuant to Section 7.01(d)
and notice by the Company to the Administrative Agent that a rate change is
required. Notwithstanding anything to the contrary set forth in this Agreement
(including the then effective Leverage Ratio), the Applicable Eurocurrency Rate
Margin shall be 1.375% for the period commencing on the Effective Date and
ending on the delivery of the Compliance Certificate in respect of the
Borrowers' second fiscal quarter of Fiscal Year 1997. If the Company shall fail
to deliver a Compliance Certificate within 50 days after the end of any fiscal
quarter (or within 95 days, in the case of the last fiscal quarter of any Fiscal
Year) as required pursuant to Section 7.01(d), the Applicable Eurocurrency
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Rate Margin from and including the 51st (or 96th, as the case may be) day after
the end of such fiscal quarter to but not including the date the Company
delivers to the Administrative Agent a Compliance Certificate shall conclusively
equal the highest Applicable Eurocurrency Rate Margin set forth above.
"Applicable Lending Office" means, with respect to a
particular Lender, its Eurocurrency Lending Office in respect of provisions
relating to Eurocurrency Rate Loans and its Domestic Lending Office in respect
of provisions relating to Base Rate Loans.
"Applicable Payment Office" means, with respect to Obligations
payable in Dollars, the principal office of Citicorp in New York, New York, and,
with respect to Obligations payable in any Alternative Currency, the principal
office of Citibank London in London, England or such other office or offices as
determined by the Administrative Agent from time to time of which notice is
given to the Borrowers, the Lenders and the Issuing Banks in accordance with the
provisions of Section 13.08.
"ARUP" means ARUP Alu-Xxxx und -Profil GmbH, a corporation
formed under the laws of the Federal Republic of Germany.
"Assignment and Acceptance" means an Assignment and Acceptance
in substantially the form of Exhibit A attached hereto and made a part hereof
(with blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest hereunder in accordance
with the provisions of Section 13.01.
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C. Sections 101 et seq.), as amended from time to time, and any successor
statute.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the highest of:
(i) the rate of interest announced publicly by Citibank in
New York, New York from time to time, as Citibank's base rate; and
(ii) the sum (adjusted to the nearest one quarter of one
percent (0.25%) or, if there is no nearest one quarter of one percent
(0.25%), to the next higher one quarter of one percent (0.25%)) of (A)
one half of one percent (0.50%) per annum plus (B) the rate per annum
obtained by dividing (I) the latest three-week moving average of
secondary market morning offering rates in the United States for
three-month
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certificates of deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 360 days)
being determined weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday (or, if such day is not a Business
Day, on the next preceding Business Day) by Citibank on the basis of
such rates reported by certificate of deposit dealers to, and published
by, the Federal Reserve Bank of New York, or, if such publication shall
be suspended or terminated, on the basis of quotations for such rates
received by Citibank from three (3) New York certificate of deposit
dealers of recognized standing selected by Citibank, by (II) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Federal Reserve Board
(or any successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for Citibank in respect of liabilities
which consist of or which include (among other liabilities) three-month
Dollar nonpersonal time deposits in the United States plus (C) the
average during such three-week period of the annual assessment rates
estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits of Citibank
in the United States; and
(iii) the sum of (A) one half of one percent (0.50%) per annum
plus (B) the Federal Funds Rate in effect from time to time during such
period.
"Base Rate Loans" means all Loans denominated in Dollars which
bear interest at a rate determined by reference to the Base Rate as provided in
Section 4.01(a).
"Benefit Plan" means a defined benefit plan as defined in
Section 3(35) of ERISA subject to Title IV of ERISA or Section 412 of the
Internal Revenue Code (other than a Multiemployer Plan) in respect of which the
Company or any ERISA Affiliate is, or within the immediately preceding three (3)
years was, an "employer" as defined in Section 3(5) of ERISA.
"Borrower" is defined in the preamble.
"Borrowing" means a borrowing consisting of Loans of the same
Type and in the same currency made, continued or converted on the same day and,
in the case of Eurocurrency Rate Loans, for the same Eurocurrency Interest
Period.
"Business Day" means a day, in the applicable local time,
which is not a Saturday or Sunday or a legal holiday and on
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which banks are not required or permitted by law or other governmental action to
close (i) in New York, New York, (ii) in the case of Eurocurrency Rate Loans, in
London, England and in the country of issue of the currency of such Eurocurrency
Rate Loans, and (iii) in the case of Letter of Credit transactions for a
particular Issuing Bank, in the place where its office for issuance or
administration of the pertinent Letter of Credit is located.
"Capital Expenditures" means, for any period with respect to
any Person, the aggregate of all expenditures (net of any insurance proceeds or
condemnation awards used to replace fixed assets, plant and equipment following
a casualty event or event of condemnation or taking with respect thereto) by
such Person to acquire or construct fixed assets, plant and equipment (including
renewals, improvements and replacements, but excluding repairs and maintenance,
and any amount credited to, or received by, such Person in connection with a
substantially contemporaneous trade in or sale of the Property being replaced)
during such period computed in accordance with GAAP; provided, however, Capital
Expenditures shall include, whether or not such a designation would be in
conformity with GAAP, that portion of Capital Leases which is incurred and
capitalized during such period on the consolidated balance sheet of such Person
and provided, further, Capital Expenditures shall exclude, whether or not such a
designation would be in conformity with GAAP, Permitted Acquisitions to the
extent such expenditures are permitted under the terms of this Agreement.
"Capital Lease", as applied to any Person, means any lease of
any Property (whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
"Capital Stock", with respect to any Person, means any capital
stock of such Person, regardless of class or designation, and all warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls or
claims of any character with respect thereto.
"Cash Collateral" means cash or Cash Equivalents held by the
Administrative Agent, either Co-Agent, any of the Issuing Banks or any of the
Lenders as security for the Obligations.
"Cash Equivalents" means (i) marketable direct obligations
issued or unconditionally guaranteed by the United States government and backed
by the full faith and credit of the United States government; (ii) domestic and
eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or
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its branches or agencies (fully protected against currency fluctuations), which,
at the time of acquisition, are rated A-1 (or better) by Standard & Poor's
Corporation (or its successors) or P-1 (or better) by Xxxxx'x Investors Service,
Inc. (or its successors); (iii) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States and
foreign finance, commercial industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Corporation (or
its successors) or P-1 (or better) by Xxxxx'x Investors Service, Inc. (or its
successors); (iv) marketable direct obligations of any state of the United
States or any political subdivision of any such state given on the date of such
investment the highest credit rating by Xxxxx'x Investor Service, Inc. (or its
successors) and Standard & Poor's Corporation (or its successors); (v) money
market funds organized under the laws of the United States or any state thereof
that invests in any of the Investments identified under clauses (i), (ii), (iii)
and (iv) of this definition; and (vi) reverse purchase agreements covering
obligations of the type specified in clause (i) of this definition; provided,
that the maturities of any such Cash Equivalents referred to in clauses (i)
through (vi) shall not exceed one hundred eighty (180) days.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as
amended, and any regulations promulgated thereunder.
"CERCLIS" is defined in Section 6.01(o).
"Change of Control" means (i) the replacement of a majority of
the Board of Directors of the Company from the directors who constituted the
Board of Directors on October 21, 1994 for any reason other than death,
retirement or disability, and such replacement shall not have been approved by
the Board of Directors of the Company as constituted on October 21, 1994 (or as
changed over time with the approval of the Board of Directors of the Company),
or (ii) a Person or entity or group of Persons or entities acting in concert,
other than Water Street Corporate Recovery Fund I, L.P. ("Water Street") or its
Affiliates or any Person or entity or group of Persons or entities acting in
concert and controlled by Water Street or its Affiliates, shall, as a result of
a tender or exchange offer, open market purchases, privately negotiated
purchases or otherwise, have become the beneficial owner (within the meaning of
Rule 13d.3 under the Securities Exchange Act of 1934, as amended) of securities
of the Company representing more than 40% of the Voting Stock of the Company.
"Citibank" means Citibank, N.A., a national banking
association, and its successors.
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"Citibank London" means Citibank International plc, an
Affiliate of Citibank and Citicorp.
"Claim" means any claim or demand, by any Person, of
whatsoever kind or nature for any alleged Liabilities and Costs, whether based
in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"Co-Agents" means, collectively, First Chicago and GSCP in
their respective capacities as syndication agents.
"Collateral" means all Property and interests in Property now
owned or hereafter acquired by the Company or any of the Subsidiary Guarantors
upon which a Lien is granted under any of the Loan Documents.
"Collection Account Agreement" means a collection account
agreement executed by each Collection Account Bank, the Company or any
Subsidiary Guarantor and the Administrative Agent substantially in the form of
Exhibit B (with such changes thereto requested by the Collection Account Bank as
may be acceptable to the Administrative Agent and the Company), as such
agreement may be amended, supplemented or otherwise modified from time to time.
"Collection Account Bank" means each bank identified as such
on Schedule 6.01-Z that has executed a Collection Account Agreement, at which
the Company and the Subsidiary Guarantors deposit proceeds of Collateral.
"Collection Accounts" means, collectively, the collection
accounts established at the Collection Account Banks; and "Collection Account"
means any one of the Collection Accounts.
"Commercial Letter of Credit" means any documentary letter of
credit issued by an Issuing Bank pursuant to Section 2.04 for the account of the
Company or a Subsidiary of the Company, which is drawable upon presentation of
documents evidencing the sale or shipment of goods purchased by the Company or
such Subsidiary in the ordinary course of its business.
"Common Stock" means the Company's common stock, $0.001
par value.
"Company" is defined in the preamble.
"Company's Projections" means the consolidated financial
projections dated June 20, 1997 prepared by the Company with respect to the
Company and its Subsidiaries on a monthly basis for Fiscal Year 1997 and an
annual basis for Fiscal Years 1998 through 2003, and supporting materials
delivered in
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connection therewith delivered by the Company to the Lenders on or prior to the
Effective Date.
"Compliance Certificate" is defined in Section 7.01(d).
"Concentration Account" means account number 00000000 of the
Company at the offices of Citibank at 0 Xxxxx Xxxxx, 0xx Xxxxx, Xxxx Xxxxxx
Xxxx, Xxx Xxxx 00000, Attention: Ed Volwinkel, into which all funds from the
Blocked Accounts may be transferred on a daily basis in accordance with Section
3.05. The Concentration Account shall be under the sole dominion and control of
the Administrative Agent; provided that all amounts deposited therein shall be
held by the Administrative Agent as Cash Collateral for the benefit of the
Administrative Agent, the Co-Agents, the Lenders, the Issuing Banks and the
other Holders and shall be subject to the terms of this Agreement.
"Consolidated Cash Interest Expense" means, for any period on
a consolidated basis for any Person and its Subsidiaries, all of the following
as determined in conformity with GAAP, (i) total interest expense (including the
interest component of Capital Lease obligations for such period), including,
without limitation, bank fees, commissions, discounts and other fees and charges
owed with respect to letters of credit (including, without limitation, the
Letter of Credit Fee but excluding customary fees and charges with respect to
the issuance, administration, amendment and payment or cancellation of letters
of credit), interest expense capitalized during such period and net interest
costs under Interest Rate Contracts, minus (ii) to the extent included in the
determination of total interest expense, the sum of (A) the amount of financing
costs and expenses which are capitalized and amortized, (B) amortization of debt
discount, (C) interest paid in Property other than cash, (D) any other interest
expense not payable in cash and (E) cash payments made to purchase interest rate
caps, collars or similar derivatives for any period and the amortized portion of
such payments, minus (iii) the sum of (A) any interest income received in
respect of its Investments in cash and Cash Equivalents and (B) to the extent
not deducted from total interest expense, any net payments received during such
period under Interest Rate Contracts.
"Consolidated Fixed Charges" means, for any period on a
consolidated basis for any Person and its Subsidiaries, the sum of the amounts
for such period of (i) Consolidated Cash Interest Expense of such Person and its
Subsidiaries and (ii) scheduled payments of principal on Funded Debt of such
Person and its Subsidiaries (including, without limitation, the principal
component of Capital Lease obligations and, in the case of the Company, the Term
Loans (other than Term Loans repaid on the
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Effective Date) and excluding any scheduled reductions of the Revolving Credit
Commitments pursuant to Section 3.01(c)).
"Consolidated Net Income" means, for any period on a
consolidated basis for any Person and its Subsidiaries, the net income (or loss)
after taxes for such period taken as a single accounting period, determined in
conformity with GAAP.
"Consolidated Net Worth" means, with respect to any Person, at
any time, (i) consolidated stockholders' equity of such Person and its
consolidated Subsidiaries plus (or minus) (ii) any negative (or positive)
cumulative foreign currency translation adjustments applicable to such Person in
accordance with GAAP minus (iii) to the extent included in stockholders' equity,
minority interests in such Person's Subsidiaries held by Persons other than such
Person.
"Constituent Document" means, with respect to any entity, (i)
the articles/certificate of incorporation (or the equivalent organizational
documents) of such entity, (ii) the by-laws (or the equivalent governing
documents) of such entity and (iii) any document setting forth the designation,
amount and/or relative rights, limitations and preferences of any class or
series of such entity's Capital Stock.
"Contaminant" means any pollutant, hazardous substance,
radioactive substance, toxic substance, hazardous waste, radioactive waste,
special waste, petroleum or petroleum-derived substance or waste, asbestos,
polychlorinated biphenyls (PCBs), or any hazardous or toxic constituent thereof,
as these terms are defined under Environmental, Health or Safety Requirements of
Law.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by which
it or any of its Properties is bound, or to which it or any of its Properties is
subject.
"Cure Loans" is defined in Section 3.02(b)(v)(C).
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"Customary Permitted Liens" means Liens on the Property of any
Person (other than Environmental Liens and Liens in favor of the PBGC)
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(i) with respect to the payment of taxes, assessments or
governmental charges or levies in all cases which are not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with GAAP;
(ii) of landlords arising by statute and Liens of suppliers,
mechanics, carriers, materialmen, warehouse-men or workmen, banker's
liens and other Liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP;
(iii) incurred or pledges and deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance, pensions or other types of social security
benefits, or to secure the performance of statutory obligations or to
secure the performance of bids, tenders, sales, contracts (other than
for the repayment of borrowed money), surety, warranty, advance
payment, appeal, customs, performance bonds and similar obligations;
(iv) arising with respect to zoning restrictions, licenses,
covenants, building restrictions and other similar charges or
encumbrances on the use of Real Property of such Person which do not
materially interfere with the ordinary conduct of such Person's
business;
(v) any interest or title of a lessor under any lease
permitted hereunder;
(vi) any interest or title of any lessee under any leases or
subleases of Real Property of such Person, provided that all such Liens
do not in the aggregate materially detract from the value of such
Person's Property or materially impair the use thereof in the operation
of the businesses;
(vii) constituting the filing of notice financing statements
of a lessor's rights in and to personal Property leased to such Person
in the ordinary course of such Person's business;
(viii) attachment, prejudgment or judgment Liens in existence
less than 60 days after the entry thereof or with
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respect to which execution has been stayed or with respect to which
payment in full above any applicable deductible is covered by insurance
or a bond or, with respect to any prejudgment Lien, the underlying
claim for which is being contested in good faith and for which reserves
or other appropriate provisions, if any, as required by GAAP have been
made;
(ix) Liens incurred to secure any surety bonds, appeal bonds,
supersedeas bonds or other instruments serving a similar purpose in
connection with the appeal of any judgment or defense of any claim
relating to a prejudgment Lien; and
(x) defects and irregularities in titles, survey exceptions,
encumbrances, easements or reservations of others for rights-of-way,
roads, pipelines, railroad crossings, services, utilities or other
similar purposes; outstanding mineral rights or reservations (including
rights with respect to the removal of material resource) which do not
materially diminish the value of the surface estate, assuming usage of
such surface estate similar to that being carried on by the Company or
its Subsidiaries as of the Effective Date.
"Decision Period" is defined in Section 8.07.
"Decision Reserve" is defined in Section 8.07.
"Default" means an event which, with the giving of notice or
the lapse of time, or both, would constitute an Event of Default.
"Default Notice", with respect to any Collection Account, has
the meaning specified in the Collection Account Agreement governing such
Collection Account.
"Disbursement Account" means account number 00000000 of the
Company at Citibank, or such other bank account as shall subsequently be
designated as the Disbursement Account of the Company by notice to the
Administrative Agent.
"DOL" means the United States Department of Labor and
any successor department or agency.
"Dollars" and "$" mean the lawful money of the United
States.
"Dollar Equivalent" means, with respect to any Alternative
Currency at the time of determination thereof, the equivalent of such currency
in Dollars determined at the rate of exchange quoted by (i) the Administrative
Agent in New York, New
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York at 12:00 noon (New York time) on the date of determination, to prime banks
in New York City for the spot purchase in the New York foreign exchange market
of such amount of Dollars with such Alternative Currency or, (ii) solely for
purposes of any determination made by Citibank London pursuant to the last
sentence of Section 2.02(a), Citibank London, in London, England at 12:00 noon
(London time) on the date of determination, to prime banks in London for the
spot purchase in the London foreign exchange market of such amount of Dollars
with such Alternative Currency.
"Domestic Lending Office" means, with respect to any Lender,
such Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Company and the Administrative Agent.
"Domestic Subsidiary" means a Subsidiary of the Company which
is organized and existing under the laws of the United States of America, any
State thereof, the District of Columbia, Puerto Rico or the United States Virgin
Islands.
"EBITDA" means, for any period on a consolidated basis for any
Person and its Subsidiaries, (i) the sum of the amounts for such period of (A)
Consolidated Net Income, (B) depreciation, amortization expense and non-cash
expenses related to employee stock options and stock incentive plans, (C) total
interest expense, (D) charges for federal, state, local and foreign income
taxes, (E) extraordinary losses (and any unusual losses arising outside the
ordinary course of business not included in extraordinary losses determined in
accordance with GAAP) and (F) other non-operating expenses which have been
deducted in the determination of Consolidated Net Income, minus (ii) the sum of
the amounts for such period of (A) extraordinary gains (and any unusual gains
arising outside the ordinary course of business not included in extraordinary
gains determined in accordance with GAAP), (B) other non-operating income not
already excluded from the determination of Consolidated Net Income and (C) to
the extent not deducted from total interest expense, any net payments received
during such period under Interest Rate Contracts and any interest income
received in respect of its Investments in cash and Cash Equivalents.
"Effective Date" is defined in Section 5.01.
"Eligible Assignee" means (i) a Lender or any Affiliate
thereof; (ii) a commercial bank having total assets in excess of $1,000,000,000;
(iii) a finance company, insurance company, other financial institution or fund,
reasonably acceptable to the Administrative Agent and approved by the Company
(which approval
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shall not be unreasonably withheld), which is regularly engaged in making or
purchasing loans; (iv) a savings and loan association or savings bank organized
under the laws of the United States or any state thereof having total assets in
excess of $500,000,000; or (v) a finance company, insurance company, bank, other
financial institution or fund reasonably acceptable to the Administrative Agent
and approved by the Company, which approval shall not be unreasonably withheld.
In addition to the foregoing, an Eligible Assignee must be an "accredited
investor" or "qualified institutional buyer" (as defined in Regulation D and
Rule 144A, respectively, under the Securities Act) to the extent it is not a
bank or other financial institution regularly engaged in making commercial
loans.
"Environmental, Health or Safety Requirements of Law" means
all Requirements of Law relating to or addressing the environment, health or
safety, including but not limited to any law, regulation, or order relating to
the use, handling, or disposal of any Contaminant, any law, regulation, or order
relating to Remedial Action and any law, regulation, or order relating to
workplace or worker safety and health, each as from time to time hereafter in
effect.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (i) liabilities arising under any Environmental, Health or
Safety Requirements of Law, or (ii) damages arising from, or costs incurred by
such Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Acts" means any applicable
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the closure of any Property or the
transfer, mortgage, sale or lease of any Property or deed or title for any
Property for environmental reasons, including, but not limited to, any so-called
"Environmental Cleanup Responsibility Acts" or "Responsible Transfer Acts".
"Equipment" means, with respect to any Person, all of such
Person's present and future (i) equipment, including, without limitation,
machinery, manufacturing, distribution, selling, data processing and office
equipment, assembly systems, tools, molds, dies, fixtures, appliances,
furniture, furnishings, vehicles, vessels, aircraft, aircraft engines, and trade
fixtures, (ii) other tangible personal Property (other than such Person's
Inventory), and (iii) any and all accessions, parts and appurtenances attached
to any of the foregoing or used in connection therewith, and any substitutions
therefor and replacements, products and proceeds thereof.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" means any (i) corporation which is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the Internal Revenue Code) as the Company, (ii) partnership or other
trade or business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Company, and
(iii) member of the same affiliated service group (within the meaning of section
414(m) of the Internal Revenue Code) as the Company, any corporation described
in clause (i) above or any partnership or trade or business described in clause
(ii) above.
"Eurocurrency Affiliate" means, with respect to each Lender,
the Affiliate of such Lender (if any) set forth below such Lender's name under
the heading "Eurocurrency Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Company and
the Administrative Agent.
"Eurocurrency Interest Payment Date" means (i) with respect to
any Eurocurrency Rate Loan, the last day of each Eurocurrency Interest Period
applicable to such Loan and (ii) with respect to any Eurocurrency Rate Loan
having a Eurocurrency Interest Period in excess of three (3) calendar months,
the last day of each three (3) calendar month interval during such Eurocurrency
Interest Period.
"Eurocurrency Interest Period" is defined in Section 4.02(b).
"Eurocurrency Interest Rate Determination Date" is defined in
Section 4.02(c).
"Eurocurrency Lending Office" means, with respect to any
Lender, the office or offices of such Lender (if any) set forth below such
Lender's name under the heading "Eurocurrency Lending Office" on the signature
pages hereof or on the Assignment and Acceptance by which it became a Lender or
such office or offices of such Lender as it may from time to time specify by
written notice to the Company and the Administrative Agent.
"Eurocurrency Rate" shall mean, with respect to any
Eurocurrency Interest Period applicable to a Borrowing of Eurocurrency Rate
Loans, (i) with respect to any Eurocurrency Loan for which the interest rate is
not ascertainable pursuant to clause (ii) of this definition, an interest rate
per annum obtained by dividing (A) the interest rate per annum determined
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by the Administrative Agent to be the rate per annum at which deposits in
Dollars or in the relevant Alternative Currency are offered by the principal
office of Citibank in London, England to major banks in the London interbank
market at approximately 11:00 a.m. (London time) on the Eurocurrency Interest
Rate Determination Date for such Eurocurrency Interest Period for a period equal
to such Eurocurrency Interest Period and in an amount substantially equal to the
amount of the Eurocurrency Rate Loan to be outstanding to Citicorp for such
Eurocurrency Interest Period, by (B) a percentage equal to 100% minus the
Eurocurrency Reserve Percentage and (ii) with respect to all other Eurocurrency
Loans, an interest rate per annum determined by dividing (A) the interest rate
per annum obtained by the Administrative Agent by reference to "Telerate page
3750" or "Telerate page 3740", as appropriate (or if such page on such service
ceases to display such information, such other page as may replace it on that
service for the purpose of display of such information) to be the rate per annum
at which deposits in Dollars or in the applicable Alternative Currency are
offered to leading banks in the London interbank market at approximately 11:00
a.m. (London time) on the Eurocurrency Interest Rate Determination Date for a
period equal to such Eurocurrency Interest Period (rounded upward to the nearest
whole multiple of one-sixteenth of one percent (0.0625%)) by (B) a percentage
equal to 100% minus the Eurocurrency Reserve Percentage. The Eurocurrency Rate
shall be adjusted automatically on and as of the effective date of any change in
the Eurocurrency Reserve Percentage. For purposes of this definition, "Telerate
page 3750" means the display designated as "Page 3750", and "Telerate page 3740"
means the display designated as "Page 3740", in each case on the Telerate
Service (or such other page as may replace Page 3750 or Page 3740 on the service
as may be nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association Interest
Settlement Rates for deposits in the currency concerned).
"Eurocurrency Rate Loans" means those Loans denominated in
Dollars or in an Alternative Currency which bear interest at a rate determined
by reference to the Eurocurrency Rate and the Applicable Eurocurrency Rate
Margin as provided in Section 4.01(a).
"Eurocurrency Reserve Percentage" means, for any day, that
percentage which is in effect on such day, as prescribed by the Federal Reserve
Board for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York, New York with
deposits exceeding one billion Dollars in respect of "Certificate of Deposit
Liabilities" (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Eurocurrency Rate Loans is
determined or any
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category of extensions of credit or other assets which includes loans by a
non-United States office of any bank to United States residents).
"Event of Default" means any of the occurrences set forth in
Section 11.01 after the expiration of any applicable grace period and the giving
of any applicable notice, in each case as expressly provided in Section 11.01.
"Existing Credit Agreement" is defined in the preamble
to this Agreement.
"Fair Market Value" means, (i) with respect to any Property
(other than Property covered in clauses (ii), (iii) and (iv) below) of any
Person, the value of the consideration obtainable in a sale or other disposition
of such Property in the open market, assuming a sale by a willing seller to a
willing purchaser dealing at arm's length and arranged in an orderly manner over
a reasonable period of time, each having reasonable knowledge of the nature and
characteristics of such Property, neither being under any compulsion to act and
such transaction has been approved by the board of directors of such Person,
(ii) with respect to Property, the value of the consideration obtainable in a
sale or other disposition of such Property as determined (A) in good faith by
the board of directors of such Person or (B) by an appraisal of such Property,
provided that such appraisal was performed relatively contemporaneously with
such determination of the fair market value by an independent third party
appraiser and the basic assumptions underlying such appraisal have not
materially changed since the date thereof, (iii) with respect to any Property
for which the consideration for such sale or other disposition is less than
$500,000, as reflected on the xxxx of sale or invoice or in the relevant
contract for the same or (iv) with respect to any marketable security at any
date, the market price of such security at the time of sale, or in a private
transaction, the closing price of such security on the business day (on which
any national securities exchange is open for the normal transaction of business)
next preceding such date, as appearing in any published list of any national
securities exchange or in the National Market List of the National Association
of Securities Dealers, Inc. or, if there is no such closing price of such
security, the final price for the purchase of such security at face value quoted
on such business day by a financial institution of recognized standing which
regularly deals in securities of such type.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or,
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if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on such transactions
received by Citibank from three federal funds brokers of recognized standing
selected by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any Governmental Authority succeeding to its
functions.
"Fiscal Year" means the fiscal year of the Company, which
shall be the 12-month period ending on December 31 of each calendar year.
"Fixed Charge Coverage Ratio" means, with respect to any
period, the ratio of (i) EBITDA of the Company and its Subsidiaries for such
period, minus Capital Expenditures of the Company and its Subsidiaries during
such period (excluding Capital Expenditures financed by Capital Leases or
purchase money Indebtedness pursuant to Section 9.01(vi)), minus cash dividends
on the Capital Stock of the Company paid during such period other than dividends
made pursuant to Section 9.06(v) and other than the Stock Repurchase made
pursuant to Section 9.06(vii) or any stock repurchase, dividend or other
distribution to shareholders made pursuant to Section 9.06(viii), to (ii)
Consolidated Fixed Charges of the Company and its Subsidiaries for such period.
"Foreign Borrower" is defined in the preamble and included any
Wholly Owned Foreign Subsidiary designated by the Company and approved by the
Requisite Lenders pursuant to Section 2.07.
"Foreign Borrower Sublimit" means (i) with respect to Insilco
GmbH, $15,000,000 and (ii) with respect to any other Foreign Borrower, the
amount designated by the Company as such Borrower's "Foreign Borrower Sublimit"
and approved by the Requisite Lenders pursuant to Section 2.07.
"Foreign Employee Benefit Plan" means any employee benefit
plan as defined in Section 3(3) of ERISA which is maintained or contributed to
for the benefit of the employees of the Company, any of its Subsidiaries or any
of its ERISA Affiliates, but which is not covered by ERISA pursuant to ERISA
Section 4(b)(4).
"Foreign Pension Plan" means any Foreign Employee Benefit Plan
which, under applicable local law, is required to be funded through a trust or
other funding vehicle.
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"Foreign Subsidiary" means any Subsidiary of the
Company other than a Domestic Subsidiary.
"Funded Debt" means, to the extent the following would be
reflected on a consolidated balance sheet of the Company and its Subsidiaries
prepared in accordance with GAAP, the principal amount of all Indebtedness of
the Company and its Subsidiaries in respect of borrowed money, evidenced by debt
securities, debentures, acceptances, notes or other similar instruments, in
respect of Capital Lease Obligations, in respect of Reimbursement Obligations or
in respect of the deferred purchase price of Property or services, except (i)
accounts payable and accrued expenses arising in the ordinary course of business
and (ii) payment obligations owing to Governmental Authorities or other Persons
(excluding the principal portion owing to trade creditors) subject to the Plan
of Reorganization.
"Funding Date" means, with respect to any Loan, the date of
the funding of such Loan.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board, the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession as in effect
from time to time (unless otherwise specified pursuant to Section 13.04).
"General Intangibles" means, with respect to any Person, all
of such Person's present and future choses in action, causes of action, and all
other intangible personal Property of every kind and nature (other than
Receivables), including, without limitation, corporate, partnership and other
business records, inventions, designs, patents, patent applications, trademarks,
trademark applications, trade names, trade secrets, goodwill, registrations,
copyrights, licenses, franchises, customer lists, tax refunds, tax refund
claims, rights and claims against carriers, shippers, franchisees, lessors, and
lessees, and rights to indemnification.
"Governmental Authority" means any federal, state or local
government or other political subdivision and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to such government or political subdivision.
"GSCP" is defined in the preamble.
"Guarantor" means the Company and each Subsidiary Guarantor.
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"Holder" means any Person entitled to the benefits of the
Collateral as security for any of the Obligations, including, without
limitation, the Administrative Agent, the Co-Agents, each Lender and each
Issuing Bank.
"Indebtedness", as applied to any Person, means, at any time
(without duplication), (a) all indebtedness, obligations or other liabilities of
such Person (i) for borrowed money or evidenced by debt securities, debentures,
acceptances, notes or other similar instruments, and any accrued interest, fees
and charges relating thereto, (ii) under profit payment agreements or in respect
of obligations to redeem, repurchase or exchange any Securities of such Person
or to pay dividends in respect of any Capital Stock, (iii) with respect to
letters of credit issued for such Person's account, (iv) to pay the deferred
purchase price of Property or services, except accounts payable and accrued
expenses arising in the ordinary course of business, (v) in respect of Capital
Leases or (vi) for payment of obligations owing to Governmental Authorities or
other Persons (other than for obligations to trade creditors that arose prior to
the effective date of the Plan of Reorganization in the ordinary course of
business) subject to the Plan of Reorganization; (b) all indebtedness,
obligations or other liabilities of such Person or others secured by a Lien on
any Property of such Person, whether or not such indebtedness, obligations or
liabilities are assumed by such Person, all as of such time; (c) all
indebtedness, obligations or other liabilities of such Person in respect of
Interest Rate Contracts and Currency Agreements, net of liabilities owed to such
Person by the counterparties thereon; and (d) the guarantee (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business), direct or indirect, of all or any part of the indebtedness,
obligations or liabilities referred to in clauses (a) through (c) above.
"Indemnitee" is defined in Section 13.03.
"Indemnified Matter" is defined in Section 13.03.
"Insilco GmbH" is defined in the preamble.
"Interbank Rate" means, for any period, (i) in respect of
Revolving Loans denominated in Dollars, the Federal Funds Rate, and (ii) in
respect of Multicurrency Loans, Citibank London's costs of funds for such
period.
"Interest Coverage Ratio" means, with respect to any period,
the ratio of (i) EBITDA of the Company and its Subsidiaries for such period to
(ii) Consolidated Cash Interest Expense of the Company and its Subsidiaries for
such period.
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"Interest Rate Contracts" means interest rate exchange, swap,
collar or cap or similar agreements providing interest rate protection.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, any
successor statute and any regulations or guidance promulgated thereunder.
"Inventory" means, with respect to any Person, all of such
Person's present and future (i) inventory (including unbilled accounts
receivable), (ii) goods, merchandise and other personal Property of such Person
furnished or to be furnished under any contract of service or intended for sale
or lease, and all goods consigned by such Person and all other items which have
previously constituted Equipment but are then currently being held for sale or
lease in the ordinary course of such Person's business, (iii) raw materials,
work-in-process and finished goods, (iv) materials and supplies of any kind,
nature or description used or consumed in such Person's business or in
connection with the manufacture, production, packing, shipping, advertising,
finishing or sale of any of the Property of such Person described in clauses (i)
through (iii) above, (v) goods in which such Person has a joint or other
interest to the extent of such Person's interest therein or right of any kind
(including, without limitation, goods in which such Person has an interest or
right as consignee), and (vi) goods which are returned to or repossessed by such
Person; in each case whether in the possession of such Person, a bailee, a
consignee, or any other Person for sale, storage, transit, processing, use or
otherwise, and any and all documents for or relating to any of the foregoing.
"Investment" means, with respect to any Person, (i) any
purchase or other acquisition by that Person of Securities, or of a beneficial
interest in Securities issued by or other equity ownership interest in any other
Person, (ii) any purchase by that Person of all or a significant part of the
Property of a business conducted by another Person, and (iii) any loan, advance
(other than deposits with financial institutions available for withdrawal on
demand, prepaid expenses, accounts receivable and similar items made or incurred
in the ordinary course of business as presently conducted), or capital
contribution by that Person to any other Person, including all Indebtedness to
such Person arising from a sale of Property by such Person other than in the
ordinary course of its business.
"IRS" means the Internal Revenue Service and any Governmental
Authority succeeding to the functions thereof.
"Issue" means, with respect to any Letter of Credit, either to
issue, or to extend the expiry of, or to renew, or to
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increase the amount of, such Letter of Credit, and the terms "Issued" and
"Issuance" shall have corresponding meanings.
"Issuing Banks" means Citibank and each other Lender (or
Affiliate of a Lender) selected by the Company and reasonably acceptable to the
Administrative Agent who has agreed to become an Issuing Bank for the purpose of
issuing Letters of Credit pursuant to Section 2.04.
"Leases" means those leases, tenancies or occupancies of Real
Property entered into by the Company or one of its Subsidiaries, as tenant,
sublessor or sublessee either directly or as the successor in interest to the
Company or any of the Domestic Subsidiaries.
"Lender" means, as of the Effective Date, each of Citicorp,
First Chicago and GSCP and each other institution which is a signatory hereto
and identified as such and, at any other given time, each institution which is a
party hereto as a Lender, whether as a signatory hereto or pursuant to an
Assignment and Acceptance.
"Letter Agreement" means the fee letter dated June 24, 1997
from Citicorp and Citicorp Securities and accepted and agreed to by the Company
on June 25, 1997.
"Letter of Credit" means any Commercial Letter of Credit or
Standby Letter of Credit.
"Letter of Credit Availability" means, at any particular time,
the amount by which the Letter of Credit Sublimit exceeds the Letter of Credit
Obligations outstanding at such time.
"Letter of Credit Fee" is defined in Section 4.03(a).
"Letter of Credit Obligations" means, at any particular time,
the sum of (i) all outstanding Reimbursement Obligations, plus (ii) the
aggregate undrawn face amount of all outstanding Letters of Credit, plus (iii)
the aggregate face amount of all Letters of Credit requested by the Borrowers
but not yet issued (unless the request for an unissued Letter of Credit has been
denied pursuant to Section 2.04(c)(i)). For purposes of determining the amount
of Letter of Credit Obligations (or any component thereof) in respect of any
Letter of Credit that is denominated in an Alternative Currency, such amount
shall equal the Dollar Equivalent of the amount of such Alternative Currency at
the time of determination thereof.
"Letter of Credit Reimbursement Agreement" means, with respect
to a Letter of Credit, such form of application therefor and form of
reimbursement agreement therefor (whether in a single
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or several documents, taken together) as the Issuing Bank from which the Letter
of Credit is requested may employ in the ordinary course of business for its own
account, with such modifications thereto as may be agreed upon by the Issuing
Bank and the Borrower requesting such Letter of Credit and as are not materially
adverse (in the judgment of the Issuing Bank) to the interests of the Lenders;
provided, however, in the event of any conflict between the terms hereof and of
any Letter of Credit Reimbursement Agreement, the terms hereof shall control.
"Letter of Credit Sublimit" means Fifty Million Dollars
($50,000,000).
"Leverage Ratio" means, for any period, the ratio of Funded
Debt of the Company and its Subsidiaries on a consolidated basis as of the end
of such period to EBITDA of the Company and its Subsidiaries for such period.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses and damages with respect to or arising out of any of
the following: personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton injury,
damage or threat to the environment or public health or welfare, costs and
expenses (including, without limitation, attorney, expert and consulting fees
and costs of investigation, feasibility or Remedial Action studies), fines,
penalties and monetary sanctions, voluntary disclosures made to, or settlements
with, the United States Government, direct or indirect, known or unknown,
absolute or contingent, past, present or future, including interest, if any,
thereon.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, conditional sale agreement, security interest,
encumbrance, lien (statutory or other), priority or other security agreement
(including, without limitation, any negative pledge arrangement outside of the
ordinary course of business and any agreement to provide equal and ratable
security) of any kind or nature whatsoever in respect of any Property of a
Person intended to assure payment of any Indebtedness, obligation or other
liability, whether granted voluntarily or imposed by law, and includes the
interest of a lessor under a Capital Lease or under any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement or similar notice (other than a financing statement
filed by a "true" lessor pursuant to Section 9-408 of the Uniform Commercial
Code), naming the lessee of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Loan Account" is defined in Section 2.05(b).
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"Loan Documents" means this Agreement, the Notes, the Letter
Agreement, the Letter of Credit Reimbursement Agreements, the Collection Account
Agreements, the Pledge and Assignment Agreement, the documents executed or
delivered pursuant to Section 5.01(a) of the Existing Credit Agreement and
Section 5.01(a) of this Agreement by the Borrowers, any Subsidiary Guarantor or
any other Subsidiary of the Company, any Interest Rate Contracts to which any
Lender or any Affiliate of a Lender is a party, and all other instruments,
agreements and written Contractual Obligations between the Company or any
Subsidiary of the Company, on the one hand, and any of the Administrative Agent,
either Co-Agent, the Lenders or the Issuing Banks, on the other hand, in each
case delivered to either the Administrative Agent, a Co-Agent, such Lender or
such Issuing Bank pursuant to or in connection with this Agreement or the
Revolving Credit Commitments (it being understood that Loan Documents do not
include agreements relating to the opening and maintenance of bank accounts with
financial institutions that are also Lenders hereunder entered into by the
Company or any of the Company's Subsidiaries in the ordinary course of
business).
"Loans" means all the Revolving Loans, the Swing Loans and all
Base Rate Loans and Eurocurrency Rate Loans.
"Lockboxes" means, collectively, the lockboxes established at
the Collection Account Banks for collection of payments in respect of
Receivables or other Collateral; and "Lockbox" means any one of the Lockboxes.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U and Regulation G.
"Material Adverse Effect" means a material adverse effect upon
(i) the business, condition (financial or otherwise), operations, performance,
Property or prospects of the Company and its Subsidiaries taken as a whole, (ii)
the ability of the Borrowers and the Subsidiary Guarantors to perform their
obligations under the Loan Documents or (iii) the rights and remedies of the
Lenders, the Issuing Banks or the Administrative Agent under the Loan Documents.
"Maximum Revolving Credit Amount" means, at any particular
time, an amount equal to the Revolving Credit Commitments, less the amount of
the Non-Facility Letter of Credit Reserve in effect at such time and less the
amount of the Decision Reserve in effect at such time.
"Maximum Non-Guarantor Subsidiary Investment Amount" means, at
any time (without duplication) an amount equal to (i) the sum of (A) the amount
of all cash Investments of the Company or any Subsidiary Guarantor, or which the
Company or any Subsidiary Guarantor is under a Contractual Obligation to make,
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since the Effective Date in, (B) the aggregate outstanding amount of all
Accommodation Obligations (including, without limitation, Letters of Credit and
Non-Facility Letters of Credit but excluding Permitted Existing Accommodation
Obligations) of the Company or any Subsidiary Guarantor at such time in respect
of obligations of, and (C) the Fair Market Value of all Property (other than
cash) of the Company or any Subsidiary Guarantor contributed, sold or otherwise
transferred since the Effective Date (other than the sale of Inventory made in
the ordinary course of business on commercially reasonable terms (but in no
event greater than 60 day terms) and on an arms length basis) to, any
Non-Guarantor Domestic Subsidiary, Permitted Joint Venture or Foreign Subsidiary
minus (ii) the sum of (A) any cash dividends, other cash distributions or cash
repayments of Indebtedness owing to the Company or any Subsidiary Guarantor (but
not intercompany loans to the Company or any Subsidiary Guarantor) received by
the Company or any Subsidiary Guarantor since the Effective Date (x) from any
Non-Guarantor Domestic Subsidiary, Permitted Joint Venture or Foreign Subsidiary
or (y) in respect of any Permitted Existing Investment (other than the Company's
Investment in the Subsidiary Guarantors), and (B) cash proceeds of asset sales
received by the Company in respect of the Capital Stock of or Property (other
than cash) transferred to any such Non-Guarantor Domestic Subsidiary, Permitted
Joint Venture or Foreign Subsidiary since the Effective Date.
"Maximum Stock Repurchase Amount" means an amount equal to
$220,000,000 minus the amount, if any, by which $150,000,000 exceeds the gross
proceeds of the issuance of the Subordinated Notes.
"Multicurrency Loan" means a Revolving Loan made in an
Alternative Currency.
"Multicurrency Sublimit" means, with respect to Multicurrency
Loans, a maximum aggregate outstanding amount of such Loans, the Dollar
Equivalent of which shall not exceed $50,000,000.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Company or any ERISA Affiliate.
"Net Cash Proceeds" means (i) proceeds received by any
Borrower or any of the Domestic Subsidiaries in cash or Cash Equivalents from
the sale (including, without limitation, any Sale and Leaseback Transaction),
assignment or other disposition of any Property of such Borrower or any Domestic
Subsidiary, other than sales, assignments and other dispositions permitted under
clauses (i), (iii), (iv), (v) and (vi) of Section 9.02, net of (A) the cash
costs and expenses of sale, assignment or other
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disposition and (B) taxes paid or payable as a result thereof; provided that, at
the request of the Administrative Agent, evidence of each of (A) and (B) are
provided to the Administrative Agent; (ii) proceeds of insurance on account of
the loss of or damage to any such Property, and payments of compensation for any
such Property taken by condemnation or eminent domain, to the extent such
proceeds or payments are required pursuant to Section 8.07 to be applied to
prepay the Loans, and (iii) proceeds received after the Effective Date by any
Borrower or any of the Domestic Subsidiaries in cash or Cash Equivalents from
(A) the issuance of any Capital Stock by such Borrower or any Domestic
Subsidiary (other than any such issuance occurring in the ordinary course of
business to any past or present member of the management or board of directors
of such Borrower or such Subsidiary in connection with such Person's employment
or service with such Borrower or such Subsidiary, any such issuance occurring in
connection with an Investment made by the Company or any Domestic Subsidiary in
any Domestic Subsidiary or any such issuance described in Section 9.06(ii)), or
any other additions to the equity of the Company (other than retained earnings)
or any contributions to capital of the Company or (B) issuance of any
Indebtedness by such Borrower or any Domestic Subsidiary (except for such
Indebtedness or Accommodation Obligations permitted under Sections 9.01 and 9.05
and any such Indebtedness incurred in connection with Currency Agreements or
Interest Rate Contracts to the extent such Borrower is permitted to enter into
such contracts pursuant to the terms hereof), in each case net of reasonable
costs incurred in connection with such transaction; provided that, upon the
request of the Administrative Agent, evidence of such costs is provided to the
Administrative Agent.
"Non-Facility Letter of Credit" means any letter of credit
issued on an unsecured basis from a financial institution other than any Issuing
Bank for the account of a Borrower.
"Non-Facility Letter of Credit Reserve" means a reserve
established by notice of the Company pursuant to Section 9.01(iii) against
Revolving Credit Availability in an amount equal to the aggregate face amount of
all outstanding Non-Facility Letters of Credit issued in excess of those
Non-Facility Letters of Credit permitted pursuant to Section 9.01(xiii).
"Non-Guarantor Domestic Subsidiary" means any Domestic
Subsidiary (other than any Subsidiary Guarantor).
"Non Pro Rata Loan" is defined in Section 3.02(b)(v).
"Note" is defined in Section 2.05(a).
"Notice of Borrowing" means a notice substantially in the form
of Exhibit C.
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"Notice of Continuation/Conversion" means a notice
substantially in the form of Exhibit D.
"NPL" is defined in Section 6.01(o).
"Obligations" means, in each instance arising hereunder, under
the Notes or under any other Loan Document, all Loans, advances, debts,
liabilities, obligations, covenants and duties owing by any Borrower to the
Administrative Agent, either Co-Agent, any Lender, any Issuing Bank, any
Affiliate of the Administrative Agent, either Co-Agent, any Lender or any
Issuing Bank, or any Person entitled to indemnification pursuant to Section
13.03, of any kind or nature, present or future, whether or not evidenced by any
note, guaranty or other instrument, whether or not for the payment of money,
whether arising under or in connection with an Interest Rate Contract with any
Lender or any Affiliate of a Lender (to the extent otherwise permitted
hereunder), or by reason of an extension of credit, opening or amendment of a
Letter of Credit or payment of any draft drawn thereunder, loan, guaranty,
indemnification or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, reasonable attorneys' fees
and disbursements and any other sum chargeable to any Borrower hereunder or
under any other Loan Document.
"Officer's Certificate" means, as to a corporation, a
certificate executed on behalf of such corporation by an officer or director of
such corporation.
"Operating Lease" means, as applied to any Person, any lease
of any Property (whether real, personal or mixed) by that Person as lessee which
is not a Capital Lease.
"PBGC" means the Pension Benefit Guaranty Corporation and any
Person succeeding to the functions thereof.
"Permits" means any permit, approval, authorization license,
variance, or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Acquisition" means any acquisition of all or
substantially all of the Capital Stock of any Person or of all or substantially
all of the assets or operations of any Person (or division or operating unit of
any Person) by the Company or any Subsidiary Guarantor, provided that:
(i) such acquisition is made at a time when, after giving effect to
such acquisition and the related financing thereof, (a) no Default or
Event of Default exists or would
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occur based upon a pro forma historical calculation for the most recent
twelve (12) month period of the covenants set forth in Article X
performed in accordance with GAAP giving effect to the EBITDA of the
acquired operations and any higher levels of Indebtedness associated
with the acquired operations, together with interest thereon as though
accrued for such twelve (12) month period, and (b) after giving effect
to such acquisition, the Borrower or such Subsidiary Guarantor would
remain Solvent;
(ii) after giving effect to the acquisition, no Default or Event of
Default exists or would occur based on a pro forma prospective
calculation of the covenants set forth in Article X performed in
accordance with GAAP;
(iii) the acquired Person or post-merger Person, if the acquisition is
of Capital Stock, (a) provides to the Administrative Agent a Lien upon
all of the Property of such acquired Person (except for Real Property
with respect to which no notice is given pursuant to Section 8.12) and
otherwise complies with the requirements of Sections 8.12 and 8.13 and
(b) executes and delivers such documentation as the Administrative
Agent deems appropriate with respect to intercompany borrowings from
the Company and the granting of security therefor;
(iv) if the acquisition is of Capital Stock, the Company or Subsidiary
Guarantor acquiring such Capital Stock provides the Administrative
Agent a Lien upon such Capital Stock pursuant to a pledge agreement in
form and substance satisfactory to the Administrative Agent;
(v) the acquired assets are subject to Liens in favor of the
Administrative Agent for the benefit of the Administrative Agent, the
Co-Agents, the Issuing Banks and the Lenders and are free and clear of
all other Liens except as permitted under Section 9.03;
(vi) the Company delivers written notice to the Administrative Agent
and the Lenders of its or a Subsidiary Guarantor's intention to make
such acquisition no less than fourteen (14) Business Days prior to the
proposed closing date for such acquisition that sets forth, among other
things, information regarding liabilities and obligations with respect
to environmental matters to be incurred by the Company or any
Subsidiary of the Company (including, without limitation, the acquired
Person in the event of an acquisition of Capital Stock) as a result of
such acquisition, any indemnities afforded under the terms of such
acquisition and the scope and results of any environmental review
undertaken by the Company in connection therewith;
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(vii) the sum for any Permitted Acquisition of (a) the original
principal amount thereof, including any deferred purchase price
therefor, plus (b) the reasonably estimated transaction costs
associated with such acquisition plus (c) the amount of Indebtedness
for borrowed money assumed (directly or indirectly) as a result thereof
shall not exceed $25,000,000 (excluding any portion of any of the
foregoing payable in common equity of the Company) in the aggregate for
all Permitted Acquisitions consummated after the Effective Date;
(viii) on the date of the closing of the Permitted Acquisition and
after giving effect thereto and to any Revolving Loans made to finance
such Permitted Acquisition, (i) no Default or Event of Default shall
have occurred and be continuing and (ii) all representations and
warranties under the Loan Documents shall be true and correct in all
material respects as though made on and as of such date, except to the
extent that any such representation or warranty expressly relates to an
earlier date;
(ix) the consideration for the Permitted Acquisition shall have been
paid only (i) in cash, (ii) in common equity of the Company or (iii) in
deferred installment payments provided that any indebtedness incurred
in connection therewith is permitted pursuant to Section 9.01(xv); and
(x) after giving effect to the acquisition, such acquired Person shall
either (i) become a Subsidiary of the Company or of any Subsidiary
Guarantor or (ii) be merged with and into the Company or any Subsidiary
Guarantor.
"Permitted Existing Accommodation Obligations" means those
Accommodation Obligations of the Company and its Subsidiaries identified as such
on Schedule 1.01.1 and shall exclude Accommodation Obligations otherwise
permitted by Section 9.05 of this Agreement.
"Permitted Existing Indebtedness" means the Indebtedness of
the Company and its Subsidiaries identified as such on Schedule 1.01.2 and shall
exclude Indebtedness otherwise permitted by Section 9.01 of this Agreement.
"Permitted Existing Investments" means those Investments of
the Company and the Domestic Subsidiaries on the Effective Date identified as
such on Schedule 1.01.3 and shall exclude Investments otherwise permitted by
Section 9.04 of this Agreement.
"Permitted Existing Liens" means the Liens on Property of the
Company or any of its Subsidiaries identified as such on
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Schedule 1.01.4 and shall exclude Liens otherwise permitted by Section 9.03 of
this Agreement.
"Permitted Joint Venture" means (i) Thermalex and (ii) any
other joint venture entered into by the Company or any Subsidiary Guarantor with
any other Person in the same or similar line of the Company's or such Subsidiary
Guarantor's business, which joint venture may be in the form of a minority
Investment in a partnership or corporation, a Non-Guarantor Domestic Subsidiary
or an Foreign Subsidiary; provided, however, that the Company or such Subsidiary
Guarantor shall not, pursuant to such joint venture, be under a Contractual
Obligation to make cash contributions or incur Accommodation Obligations after
the initial formation thereof other than in fixed Dollar amounts.
"Person" means any natural person, corporation, limited
partnership, limited liability company, general partnership, joint stock
company, joint venture, association, company, trust, bank, trust company, land
trust, business trust or other organization, whether or not a legal entity, and
any Governmental Authority.
"Plan" means an employee pension benefit plan defined in
Section 3(2) of ERISA in respect of which the Company or any ERISA Affiliate is,
or within the immediately preceding three (3) years was, an "employer" as
defined in Section 3(5) of ERISA.
"Plan of Reorganization" means the Second Amended Plan of
Reorganization Jointly Proposed by the Company and certain of its Subsidiaries
and the Official Joint Committee of Unsecured Creditors as confirmed pursuant to
an order entered on November 24, 1992 by the bankruptcy court having
jurisdiction over the Company.
"Pledge and Assignment Agreement" means the Pledge and
Assignment Agreement dated as of March 3, 1997 between the Company and the
Administrative Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"Process Agent" is defined in Section 13.17.
"Property" means, with respect to any Person, any Real
Property or personal property, plant, building, facility, structure, underground
storage tank or unit, Equipment, Inventory, General Intangible, Receivable, or
other asset owned, leased or operated by such Person (including any surface
water thereon or adjacent thereto, and soil and groundwater thereunder).
"Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing the sum of (a) such Lender's Revolving Credit
Commitment at such time by (b) the sum of the
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aggregate amount of all Revolving Credit Commitments at such time; provided,
however, if all of the Revolving Credit Commitments are terminated pursuant to
the terms hereof, then "Pro Rata Share" means the percentage obtained by
dividing (x) the sum of the aggregate amount of such Lender's Revolving Credit
Obligations by (y) the aggregate amount of all Revolving Credit Obligations.
"Protective Advance" is defined in Section 12.09.
"Qualifying Lender" means, in respect of any Lender which is
or is entitled to receive payments under this Agreement from any Foreign
Borrower, any of the following:
(i) any institution which is a bank within the
meaning given by Section 840A of the Income and Corporation Taxes Xxx
0000, which is beneficially entitled to interest payable under this
Agreement and subject to United Kingdom corporation tax in respect of
that interest;
(ii) any Lender which is an assignee of a Lender
falling within clause (i) above and is beneficially entitled to the
interest payable hereunder and subject to United Kingdom corporation
tax thereon; and
(iii) any Lender which, pursuant to the terms of a
double tax treaty as in force at the time that Lender becomes party to
this Agreement is entitled to exemption from United Kingdom taxation in
respect of the interest and which at the time of the relevant interest
payment has made all appropriate filings and declarations in order to
obtain the benefit of those terms.
"Real Property" means, with respect to any Person, all of such
Person's present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any improvements, buildings, structures and fixtures now or hereafter
located or erected thereon or attached thereto of every nature whatsoever (the
rights and interests described in clauses (i) and (ii) above being the
"Premises"), (iii) all easements, rights of way, gores of land or any lands
occupied by streets, ways, alleys, passages, sewer rights, water courses, water
rights and powers, and public places adjoining such land, and any other
interests in Property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be appurtenant thereto, (iv) all
hereditaments, gas, oil, minerals (with the right to extract, sever and remove
such gas, oil and minerals), and easements, of every nature whatsoever, located
in or on the Premises and (v) all other rights and privileges thereunto
belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replace-
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ments to or of any of the rights and interests described in clauses (iii) and
(iv) above.
"Receivables" means, with respect to any Person, all of such
Person's present and future (i) accounts, (ii) accounts receivable, (iii) rights
to payment for goods sold or leased or for services rendered (except those
evidenced by instruments or chattel paper), whether or not earned by
performance, (iv) all rights in any merchandise or goods which any of the same
may represent, and (v) all rights, title, security and guaranties with respect
to each of the foregoing, including, without limitation, any right of stoppage
in transit.
"Register" is defined in Section 13.01(c).
"Regulation A" means Regulation A of the Federal Reserve Board
as in effect from time to time.
"Regulation D" means Regulation D of the Federal Reserve Board
as in effect from time to time.
"Regulation G" means Regulation G of the Federal Reserve Board
as in effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board
as in effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board
as in effect from time to time.
"Reimbursement Date" is defined in Section 2.04(d)(i)(A).
"Reimbursement Obligations" means, as to any Borrower, the
aggregate non-contingent reimbursement or repayment obligations of such Borrower
with respect to amounts drawn under Letters of Credit Issued for the account of
such Borrower.
"Related Obligations" is defined in Section 12.09(f).
"Release" means release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any Property, including the
movement of Contaminants through or in the air, soil, surface water, groundwater
or Property.
"Remedial Action" means actions required to (i) clean up,
remove, treat or in any other way respond to Contaminants in the indoor or
outdoor environment; (ii) prevent the Release or threat of Release or minimize
the further Release of Contaminants; or (iii) investigate and determine if a
remedial
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response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in
Section 4043 of ERISA other than the events described in Regulation Sections
2615.13, 2615.14, 2615.18 and 2615.19 promulgated by the PBGC.
"Requirements of Law" means, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its Property or to which such Person or any of its Property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations G, U and X, ERISA, the Fair Labor Standards Act and any certificate
of occupancy, zoning ordinance, building, or land use requirement or Permit or
labor or employment rule or regulation.
"Requisite Lenders" means, at any time, Lenders holding, in
the aggregate, at least fifty-one percent (51%) of the sum of the then aggregate
amount of the Revolving Credit Commitments in effect at such time; provided,
however, that, in the event any of the Lenders shall have failed to fund its Pro
Rata Share, of any Revolving Loan requested by a Borrower which such Lenders are
obligated to fund under the terms hereof and any such failure has not been
cured, then for so long as such failure continues, "Requisite Lenders" means
Lenders (excluding Lenders whose failure to fund their respective Pro Rata Share
of such Loans have not been so cured) whose Pro Rata Shares represent at least
fifty-one percent (51%) of the aggregate Pro Rata Shares of such Lenders;
provided, further, however, that, in the event that the Commitments have been
terminated pursuant to the terms hereof, "Requisite Lenders" means Lenders
(without regard to such Lenders' performance of their respective obligations
hereunder) whose aggregate ratable shares (stated as a percentage) of the
aggregate outstanding principal balance of all Revolving Credit Obligations are
at least fifty-one percent (51%).
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of the Company or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
or in any junior class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of the Company or any of its Subsidiaries now or hereafter outstanding,
(iii) any payment made to redeem, purchase, repurchase or retire, or to obtain
the surrender of,
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any outstanding warrants, options or other rights to acquire shares of any class
of Capital Stock of the Company or any of its Subsidiaries now or hereafter
outstanding and (iv) any payment or prepayment of principal of, premium, if any,
or interest, fees or other charges on or with respect to, and any redemption,
purchase, retirement, defeasance, sinking fund or similar payment and any claim
to rescission with respect to, any Indebtedness expressly subordinated in
writing to the Obligations.
"Revolving Credit Availability" means, at any particular time,
the amount by which the Maximum Revolving Credit Amount exceeds the Revolving
Credit Obligations outstanding at such time.
"Revolving Credit Commitment" means, with respect to any
Lender, the obligation of such Lender to make Revolving Loans and to participate
in Letters of Credit and Swing Loans pursuant to the terms and conditions
hereof, which obligation shall not exceed the principal amount set forth
opposite the heading "Revolving Credit Commitment" under such Lender's name on
the signature pages hereof or the signature page of the Assignment and
Acceptance by which it became a Lender, as modified from time to time pursuant
to the terms hereof or to give effect to any applicable Assignment and
Acceptance, and "Revolving Credit Commitments" means the aggregate principal
amount of the Revolving Credit Commitments of all the Lenders, the maximum
aggregate principal amount of which shall not exceed $200,000,000, as reduced
from time to time pursuant to the terms hereof.
"Revolving Credit Notes" means notes evidencing each
Borrower's Obligation to repay the Revolving Loans made to it.
"Revolving Credit Obligations" means, at any particular time,
the sum of (i) the outstanding principal amount of the Swing Loans at such time,
plus (ii) the outstanding principal amount of the Revolving Loans at such time,
plus (iii) the Letter of Credit Obligations outstanding at such time plus (iv)
the aggregate principal amount of Protective Advances outstanding at such time.
For purposes of determining the amount of Revolving Credit Obligations (or any
component thereof) in respect of any Revolving Loan that is denominated in an
Alternative Currency, such amount shall equal the Dollar Equivalent of the
amount of such Alternative Currency at the time of determination thereof.
"Revolving Credit Termination Date" means the earlier to occur
of (i) the date of termination of the Revolving Credit Commitments pursuant to
the terms hereof and (ii) July 8, 2003.
"Revolving Loan" is defined in Section 2.02(a).
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"Rolodex Proceeds" means the proceeds of approximately
$110,000,000 received by the Company from the Rolodex Sale and deposited in the
Account (as defined in the Pledge and Assignment Agreement).
"Rolodex Sale" means the sale by the Company and INR Holding
Co. (formerly Rolodex Corporation) of the Company's Rolodex business, the sale
of which was consummated on March 5, 1997.
"Sale and Leaseback Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property of such
Person is sold or transferred by such Person or a Subsidiary of such Person and
is thereafter leased back from the purchaser thereof by such Person or one of
its Subsidiaries.
"Securities" means any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or any
certificates of interest, shares, or participation in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing, but shall not include any evidence of
the Obligations.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
"Solvent", when used with respect to any Person, means that at
the time of determination:
(i) the sum of its Properties at a fair valuation is greater
than the sum of its liabilities (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its Properties is
greater than its probable liability on its existing debts as such debts
become absolute and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments)
as they mature in the ordinary course of business; and
(iv) it is not engaged in a business or transaction and is not
about to engage in a business or transaction, for which its Properties,
including contractual lines of credit,
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and, with respect to the Borrowers and the Subsidiary Guarantors, the
ability of any Borrower or any Subsidiary Guarantor to borrow money
from the Company or any Subsidiary of the Company, would constitute an
unreasonably small capital after giving due consideration to the
prevailing practice in the business in which it is engaged or about to
engage.
The determination of whether a Person is Solvent shall take into account all
such Person's Properties and liabilities regardless of whether, or the amount at
which, any such Property or liability is included on a balance sheet of such
Person prepared in accordance with GAAP, including Properties such as contingent
contribution or subrogation rights, business prospects, distribution channels
and goodwill. The determination of the sum of a Person's Properties at a fair
valuation or the present fair saleable value of a Person's Properties shall be
made on a going concern basis unless, at the time of such determination, the
liquidation of the business in which such Properties are used or useful is in
process or is demonstrably imminent. In computing the amount of contingent or
unrealized Properties or contingent or unliquidated liabilities at any time,
such Properties and liabilities will be computed at the amounts which, in light
of all the facts and circumstances existing at such time, represent the amount
that reasonably can be expected to become realized Properties or matured
liabilities, as the case may be. In computing the amount that would be required
to pay a Person's probable liability on its existing debts as they become
absolute and matured, reasonable valuation techniques, including a present value
analysis, shall be applied using such rates over such periods as are appropriate
under the circumstances, and it is understood that, in appropriate
circumstances, the present value of contingent liabilities may be zero.
"Standby Letter of Credit" means any letter of credit issued
by an Issuing Bank pursuant to Section 2.04 for the account of a Borrower, which
is not a Commercial Letter of Credit.
"Stock Repurchase" means, collectively, (i) the private
purchase by the Company from its majority shareholder and certain other
shareholders of its Common Stock and (ii) a tender offer made by the Company to
the existing holders of its Common Stock for the redemption or repurchase by the
Company of shares of such Common Stock, the aggregate maximum purchase price of
which (in the case of both clauses (i) and (ii) above) does not exceed the
Maximum Stock Repurchase Amount.
"Subordinated Notes" means the Subordinated Notes due 2007 to
be issued by the Company by no later than December 31, 1997 in an aggregate
principal amount of up to $175,000,000 and governed by the terms of the
Subordinated Note Indenture.
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"Subordinated Note Indenture" means the Indenture to be entered into
between the Company and the trustee thereunder, the form of which indenture
shall have been approved in writing by the Lenders, as such agreement may be
amended, supplemented or otherwise modified from time to time.
"Subsidiary" of a Person means any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned or controlled by such
Person, one or more of the other subsidiaries of such Person or any combination
thereof; provided, however, for purposes of this definition the term
"Subsidiary" shall not include Thermalex.
"Subsidiary Guarantor" means each Domestic Subsidiary of the Company
party to the Subsidiary Guaranty.
"Subsidiary Guaranty" means the Subsidiary Guaranty dated as of
November 21, 1994 duly executed and delivered to the Administrative Agent by the
Subsidiary Guarantors, as such guaranty has been amended and supplemented prior
to the Effective Date and may be amended, supplemented or otherwise modified
from time to time thereafter.
"Survey" means a survey of the Real Property owned by the Company or a
Subsidiary Guarantor, dated no earlier than ninety (90) days prior to the date
of the delivery of mortgage or deed of trust on such property in favor of the
Administrative Agent pursuant to the terms hereof and reasonably acceptable to
the Administrative Agent.
"Swing Loan" is defined in Section 2.03(a).
"Swing Loan Bank" means Citicorp, in its individual capacity or, in
the event Citicorp is not the Administrative Agent, the Administrative Agent (or
any Affiliate of the Administrative Agent designated by the Administrative
Agent), in its individual capacity.
"Swing Loan Note" means one or more notes evidencing the Company's
Obligation to repay the Swing Loans.
"Taxes" is defined in Section 3.03(a).
"Termination Event" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Company or any ERISA Affiliate from a
Benefit Plan during a plan year in which the Company or such ERISA Affiliate was
a "substantial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations which results in the termination of employment of 20% of
Benefit Plan participants who are employees
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of the Company or any ERISA Affiliate; (iii) the imposition of an obligation on
the Company or any ERISA Affiliate under Section 4041 of ERISA to provide
affected parties written notice of intent to terminate a Benefit Plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the institution
by the PBGC or any similar foreign Governmental Authority of proceedings to
terminate a Benefit Plan or a Foreign Pension Plan; (v) any event or condition
which could reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Benefit Plan; (vi) a foreign Governmental Authority shall appoint or institute
proceedings to appoint a trustee to administer any Foreign Pension Plan; or
(vii) the partial or complete withdrawal of the Company or any ERISA Affiliate
from a Multiemployer Plan or a Foreign Pension Plan.
"Term Loans" is defined in Section 2.01.
"Term Loan Notes" means notes evidencing the Company's obligation to
repay the Term Loans.
"Thermalex" means Thermalex, Inc., an Alabama corporation.
"Title Company" means Commonwealth Land Title Insurance Company.
"Title Policy" means an ALTA Mortgagee Policy (or equivalent) of title
insurance with extended coverage over the standard or general exceptions and
such endorsements reasonably required by the Administrative Agent issued by the
Title Company covering each parcel of Real Property of the Company or any
Subsidiary Guarantor included in the Collateral or required to be so included
pursuant to Section 8.12, showing title vested in either the Company or such
Subsidiary Guarantor subject only to the Liens set forth in Section 9.03 herein,
which Title Policy shall show the Administrative Agent as the insured and an
insurance amount equal to the lesser of the Commitments or the book value of the
Real Property covered by such Title Policy.
"Type" means, with respect to any Loan, its nature as a Eurocurrency
Rate Loan or a Base Rate Loan.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted
in the State of New York, as it may be amended from time to time.
"Unused Commitment Fee" is defined in Section 4.03(b).
"Unused Commitment Fee Rate" means at all times during the applicable
periods set forth below, the applicable rate per
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annum set forth below under the heading "Unused Commitment Fee Rate":
Unused Commitment
Leverage Ratio Fee Rate
greater than 5.00 to 1 0.50%
greater than 4.00 to 1
less than or equal to 5.00 to 1 0.375%
greater than 3.50 to 1
less than or equal to 4.00 to 1 0.30%
less than or equal to 3.50 to 1 0.25%
The Leverage Ratio used to compute the Unused Commitment Fee Rate following the
Effective Date shall be the Leverage Ratio set forth in the Compliance
Certificate most recently delivered by the Company to the Administrative Agent
pursuant to Section 7.01(d); changes in the Unused Commitment Fee Rate resulting
from a change in the Leverage Ratio shall become effective upon delivery by the
Company to the Administrative Agent of a new Compliance Certificate pursuant to
Section 7.01(d) and notice by the Company to the Administrative Agent that a
rate change is required. Notwithstanding anything to the contrary set forth in
this Agreement (including the then effective Leverage Ratio), the Unused
Commitment Fee Rate shall be 0.375% for the period commencing on the Effective
Date and ending on the delivery of the Compliance Certificate in respect of the
Borrowers' second fiscal quarter of Fiscal Year 1997. If the Company shall fail
to deliver a Compliance Certificate within 50 days after the end of any fiscal
quarter (or within 95 days, in the case of the last fiscal quarter of any Fiscal
Year) as required pursuant to Section 7.01(d), the Unused Commitment Fee Rate
from and including the 51st (or 96th, as the case may be) day after the end of
such fiscal quarter to but not including the date the Company delivers to the
Administrative Agent a Compliance Certificate shall conclusively equal the
highest Unused Commitment Fee Rate set forth above.
"Voting Stock" means, with respect to any Person, securities with
respect to any class or classes of Capital Stock of such Person entitling the
holders thereof ordinarily (and apart from rights arising under special
circumstances) to vote in the election of members of the board of directors of
such Person.
"Wholly Owned" means, with respect to a Subsidiary of a Person, a
Subsidiary of such Person, all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person.
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1.02. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
1.03. Accounting Terms. Subject to Section 13.04, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.04. Other Definitional Provisions. References to "Articles",
"Sections", "subsections", "Schedules" and "Exhibits" shall be to Articles,
Sections, subsections, Schedules and Exhibits, respectively, of this Agreement
unless otherwise specifically provided. The words "hereby", "hereof", "herein",
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement.
1.05. Other Terms. All other terms contained herein shall, unless the
context indicates otherwise, have the meanings assigned to such terms by the
Uniform Commercial Code to the extent the same are defined therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.01. The Term Loans. On November 21, 1994 the Lenders made term loans
in Dollars to the Company in an aggregate amount equal to $155,000,000 (each
individually, a "Term Loan" and, collectively, the "Term Loans"). All Term Loans
outstanding on the Effective Date shall be refinanced in full on the Effective
Date with proceeds of Revolving Loans made on the Effective Date. Each Term Loan
Note shall be cancelled and be of no further force and effect.
2.02. Revolving Credit Facility. (a) Subject to the terms and
conditions set forth herein, each Lender hereby severally and not jointly agrees
to make revolving loans, in
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Dollars or an Alternative Currency (each individually, a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrowers from time to time during
the period from the Effective Date to the Business Day next preceding the
Revolving Credit Termination Date, in an amount not to exceed at any time
outstanding such Lender's Revolving Credit Commitment at such time; provided,
that (i) the aggregate amount of the Revolving Loans made to the Borrowers by
each Lender on a Funding Date shall not exceed the Dollar amount of such
Lender's Pro Rata Share of the Revolving Credit Availability on such Funding
Date, (ii) the aggregate outstanding amount of Multicurrency Loans shall not
exceed at any time the Multicurrency Sublimit less the outstanding amount of
Letter of Credit Obligations denominated in Alternative Currencies and (iii) the
aggregate outstanding amount of Revolving Credit Obligations owing by any
Foreign Borrower shall not exceed at any time such Foreign Borrower's Foreign
Borrower Sublimit in effect at such time. All Revolving Loans comprising the
same Borrowing hereunder shall be made by such Lenders simultaneously and
proportionately to their then respective Revolving Credit Commitments. Subject
to the provisions hereof (including, without limitation, Sections 3.01(a) and
5.02), any Borrower may repay any outstanding Revolving Loan on any day which is
a Business Day and any amounts so repaid may be reborrowed, up to the amount
available under this Section 2.02(a) at the time of such Borrowing, until the
Business Day next preceding the Revolving Credit Termination Date. Borrowings of
Revolving Loans denominated in Dollars shall be in an aggregate minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.
Borrowings of Multicurrency Loans shall be Eurocurrency Loans denominated in a
single Alternative Currency in an aggregate minimum amount equal to an integral
multiple of 100,000 units in such Alternative Currency and (converted to the
Dollar Equivalent thereof) equal to or greater than $1,000,000. For the purposes
of determining compliance with this Section 2.02(a), the Dollar Equivalent of a
Multicurrency Loan in an Alternative Currency shall be determined by Citibank
London upon receipt from the Company of the Notice of Borrowing requesting such
Multicurrency Loan, and such Dollar Equivalent shall be recalculated on each
date that it shall be necessary to determine the unused portion of each Lender's
Revolving Credit Commitment or any or all of the Loans outstanding on such date.
(b) Notice of Borrowing. When any Borrower desires to borrow under
this Section 2.02, the Company shall deliver to the Administrative Agent (with a
copy to Citibank London, in the case of a Borrowing of Multicurrency Loans) an
irrevocable Notice of Borrowing, signed by it, (x) on the Effective Date, in the
case of a Borrowing of Revolving Loans on the Effective Date and (y) no later
than 12:00 noon (New York time) (or 2:00 p.m. (London time) in the case of a
Borrowing of Multicurrency Loans) (I) on the Business Day immediately preceding
the proposed
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Funding Date, in the case of a Borrowing of Base Rate Loans after the Effective
Date and (II) at least three (3) Business Days in advance of the proposed
Funding Date, in the case of a Borrowing of Eurocurrency Rate Loans after the
Effective Date. Such Notice of Borrowing shall specify (i) the proposed Funding
Date (which shall be a Business Day), (ii) the amount and currency of the
proposed Borrowing, (iii) the Revolving Credit Availability as of the date of
such Notice of Borrowing, (iv) whether the proposed Borrowing will be of Base
Rate Loans or Eurocurrency Rate Loans (it being understood and agreed that no
Multicurrency Loans may be made as Base Rate Loans), (v) in the case of
Eurocurrency Rate Loans, the requested Interest Period, (vi) the Borrower making
such Borrowing, (vii) instructions for the disbursement of the proceeds of the
proposed Borrowing and (viii) whether the proposed Borrowing will be used for
the purpose of consummating a Permitted Acquisition. In lieu of delivering such
a Notice of Borrowing (except with respect to a Borrowing on the Effective
Date), the Company shall give the Administrative Agent (and Citibank London, in
the case of a Borrowing of Multicurrency Loans) irrevocable telephonic notice of
any proposed Borrowing by the time required under this Section 2.02(b), and
shall confirm such notice by delivery of the Notice of Borrowing by telecopy to
the Administrative Agent (with a copy to Citibank London, in the case of a
Borrowing of Multicurrency Loans) promptly, but in no event later than 5:00 p.m.
(New York time) on the same day. Any Notice of Borrowing delivered in connection
with a Permitted Acquisition shall be accompanied by the Officer's Certificate
required pursuant to Section 8.17(b).
(c) Making of Revolving Loans. (i) Promptly after receipt of a Notice
of Borrowing under Section 2.02(b) (or telephonic notice in lieu thereof), the
Administrative Agent shall notify each Lender by telex or telecopy, or other
similar form of transmission, of the proposed Borrowing. Each Lender shall
deposit an amount equal to its Pro Rata Share of the amount requested by the
Company to be made as Revolving Loans, (A) in the case of a Borrowing in
Dollars, with the Administrative Agent at its office in New York, New York, in
immediately available funds, and (B) in the case of a Borrowing in an
Alternative Currency, with Citibank London at its office in London, England in
immediately available funds, in either instance (1) on the Effective Date
specified in the initial Notice of Borrowing and (2) not later than 2:00 p.m.
(New York or London time, as applicable) on any other Funding Date applicable
thereto. Subject to the fulfillment of the conditions precedent set forth in
Section 5.01 or Section 5.02, as applicable, the Administrative Agent or
Citibank London, as applicable, shall make the proceeds of such amounts received
by it available to the applicable Borrower at the respective office of the
Administrative Agent or Citibank London on such Funding Date (or on the date
received if later than such Funding Date) and shall disburse such proceeds to
the Disbursement Account or otherwise
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in accordance with the Company's disbursement instructions set forth in the
applicable Notice of Borrowing. The failure of any Lender to deposit the amount
described above with the Administrative Agent or Citibank London on the
applicable Funding Date shall not relieve any other Lender of its obligations
hereunder to make its Revolving Loan on such Funding Date. No Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make a Revolving Loan hereunder nor shall the Revolving Credit Commitment of any
Lender be increased or decreased as a result of any such failure.
(ii) Anything hereinabove to the contrary notwithstanding, if any
Lender shall, not later than 10:00 a.m. (London time) two Business Days before
the date of any requested Borrowing of Multicurrency Loans, notify the
Administrative Agent that such Lender is not satisfied that deposits in the
relevant Alternative Currency will be freely available to it in the relevant
amount and for the relevant Interest Period, the right of the Borrowers to
request Multicurrency Loans in such Alternative Currency from such Lender as
part of such Borrowing or any subsequent Borrowing of Multicurrency Loans shall
be suspended until such Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist, and, at the option of the
Borrowers, either (i) the applicable Notice of Borrowing may be withdrawn and
such Borrowing shall not be made, or (ii) the Multicurrency Loan to be made by
such Lender as part of such Borrowing (and the Multicurrency Loan to be made by
such Lender as part of any subsequent Borrowing of Multicurrency Loans in
respect of which such Alternative Currency shall have been requested during such
period of suspension) shall be a Eurocurrency Rate Loan denominated in Dollars
and having an Interest Period coextensive with the Interest Period in effect in
respect of all other Multicurrency Loans comprising a part of such Borrowing. If
any Borrower elects to withdraw its Notice of Borrowing, such Borrower shall be
liable to each other Lender for any damages suffered on account thereof of a
nature described in Section 4.02(f). The Administrative Agent shall, upon
receiving notice from such Lender that the circumstances causing any such
suspension no longer apply, promptly so notify the Borrowers; provided, that the
failure of the Administrative Agent to so notify the Borrowers shall not impair
the rights of the Lenders under this Section 2.02(c)(ii) or expose the
Administrative Agent to any liability.
(iii) Unless the Administrative Agent shall have been notified by any
Lender on the Business Day immediately preceding the applicable Funding Date in
respect of any Borrowing of Revolving Loans that such Lender does not intend to
fund its Revolving Loan requested to be made on such Funding Date, the
Administrative Agent may assume that such Lender has funded its Revolving Loan
and is depositing the proceeds thereof with the Administrative Agent or Citibank
London, as applicable, on the
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Funding Date, and the Administrative Agent or Citibank London, as applicable, in
its sole discretion may, but shall not be obligated to, disburse a corresponding
amount to the applicable Borrower on the Funding Date. If the Revolving Loan
proceeds corresponding to that amount are advanced to the applicable Borrower by
the Administrative Agent or Citibank London, as applicable, but are not in fact
deposited with the Administrative Agent or Citibank London, as applicable, by
such Lender on or prior to the applicable Funding Date, such Lender agrees to
pay, and in addition the applicable Borrower agrees to repay, to the
Administrative Agent or Citibank London, as applicable, forthwith on demand such
corresponding amount, together with (x) interest thereon, for each day from the
date such amount is disbursed to or for the benefit of such Borrower until the
date such amount is paid or repaid to the Administrative Agent or Citibank
London, as applicable, (A) in the case of such Borrower, at the interest rate
applicable to such Borrowing and (B) in the case of such Lender, at the
Interbank Rate for the first Business Day, and thereafter at the interest rate
applicable to such Borrowing and (y), in the case of a Borrowing in an
Alternative Currency, any other cost or loss suffered or incurred by Citibank
London in connection therewith. If such Lender shall pay to the Administrative
Agent or Citibank London, as applicable, the corresponding amount, the amount so
paid shall constitute such Lender's Revolving Loan, and if both such Lender and
such Borrower shall pay and repay such corresponding amount, the Administrative
Agent shall promptly pay to such Borrower such corresponding amount. This
Section 2.02(c)(ii) does not relieve any Lender of its obligation to make its
Revolving Loan on any Funding Date.
(d) Use of Proceeds of Revolving Loans. (i) Proceeds sufficient to
repay the Term Loans in full and to pay the interest, fees and expenses required
to be paid under the Existing Credit Agreement under Section 5.01(j) shall be
used on the Effective Date to repay or pay such amounts, and (ii) after the
Effective Date, the proceeds of the Revolving Loans may be used (A) to pay the
purchase price of any Permitted Acquisition and other related transaction costs
and expenses and to fund any refinancing of Indebtedness in connection with a
Permitted Acquisition as set forth and certified in the Notice of Borrowing
pertaining thereto, (B) to fund working capital in the ordinary course of the
business of the Company and its Subsidiaries and (C) for other lawful general
corporate purposes not prohibited hereunder. Notwithstanding anything herein to
the contrary, no proceeds of Revolving Loans may be used to fund Restricted
Junior Payments made pursuant to Section 9.06(vii) or (viii); provided, however,
in the event proceeds of the issuance of the Subordinated Notes have been used
to repay Revolving Loans, then Revolving Loans up to the amount of such proceeds
applied to the Revolving Loans may be used to fund such Restricted Junior
Payments.
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(e) Revolving Credit Termination Date. The Revolving Credit
Commitments shall terminate, and all outstanding Revolving Credit Obligations
shall be paid in full (or, in the case of unmatured Letter of Credit
Obligations, provision for payment of Cash Collateral shall be made to the
satisfaction of the Issuing Banks and the Administrative Agent), on the
Revolving Credit Termination Date. Each Lender's obligation to make Revolving
Loans shall terminate at the close of business in New York City on the Business
Day next preceding the Revolving Credit Termination Date.
2.03. Swing Loans. (a) Availability. Subject to the terms and
conditions set forth herein, the Swing Loan Bank may, in its sole discretion,
make loans (the "Swing Loans") to the Company, from time to time during the
period from the Effective Date and at any time up to the Business Day next
preceding the Revolving Credit Termination Date, up to an aggregate principal
amount at any one time outstanding which shall not exceed an amount equal to the
lesser of (i) $10,000,000 and (ii) the Revolving Credit Availability at such
time. The Swing Loan Bank shall have no duty to make or to continue to make
Swing Loans. All Swing Loans shall be payable on demand with accrued interest
thereon and shall be secured as part of the Obligations by the Collateral and
shall otherwise be subject to all the terms and conditions applicable to
Revolving Loans, except that (x) Swing Loans shall not have a minimum amount
requirement, (y) all interest on the Swing Loans made by the Swing Loan Bank
shall be payable to the Swing Loan Bank solely for its own account and (z) all
Swing Loans shall be denominated in Dollars.
(b) Notice of Borrowing. When the Company desires to borrow under this
Section 2.03, it shall deliver to the Administrative Agent an irrevocable Notice
of Borrowing, signed by it, no later than 12:00 p.m. (New York time) on the day
of the proposed Borrowing of a Swing Loan. Such Notice of Borrowing shall
specify (i) the date of the proposed Borrowing (which shall be a Business Day),
(ii) the amount of the proposed Borrowing and (iii) instructions for the
disbursement of the proceeds of the proposed Borrowing. Any Notice of Borrowing
delivered pursuant to this Section 2.03(b) shall be deemed to constitute a
Notice of Borrowing under Section 2.02(b) in the event the Administrative Agent
determines in its sole discretion that a Borrowing of Swing Loans is not
possible or feasible. In lieu of delivering such a Notice of Borrowing, the
Company shall give the Administrative Agent irrevocable telephonic notice of any
proposed Borrowing by 1:00 p.m. on the day of the proposed Borrowing, and shall
confirm such notice by delivery of the Notice of Borrowing by telecopy to the
Administrative Agent promptly, but in no event later than 3:00 p.m. (New York
time) on the same day. All Swing Loans shall be Base Rate Loans.
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(c) Making of Swing Loans. The Swing Loan Bank shall deposit the
amount it intends to fund, if any, in respect of the Swing Loans requested by
the Company with the Administrative Agent at its office in New York, New York
not later than 2:00 p.m. (New York time) in immediately available funds on the
date of the proposed Borrowing applicable thereto. The Swing Loan Bank shall not
make any Swing Loan in the period commencing on the first Business Day after it
receives written notice from any Lender that one or more of the conditions
precedent contained in Section 5.02 shall not on such date be satisfied, and
ending when such conditions are satisfied or waived pursuant to Section 13.07
hereof, and the Swing Loan Bank shall not otherwise be required to determine
that, or take notice whether, the conditions precedent set forth in Section 5.02
hereof have been satisfied in connection with the making of any Swing Loan.
Subject to the preceding sentence, the Administrative Agent shall make such
proceeds available to the Company at the Administrative Agent's office in New
York, New York on the date of the proposed Borrowing and shall disburse such
proceeds to the Disbursement Account.
(d) Repayment of Swing Loans. The Company shall repay the outstanding
Swing Loans owing to the Swing Loan Bank (i) upon demand by the Swing Loan Bank
or, if no such demand is made, within seven (7) Business Days after the
Borrowing thereof and (ii) in any event, on the Revolving Credit Termination
Date. In the event that the Company fails to repay any Swing Loans, together
with interest thereon, as set forth in the first sentence of this paragraph,
then, upon the request of the Swing Loan Bank, each Lender shall make Revolving
Loans to the Company (irrespective of the satisfaction of the conditions in
Section 5.02 or the requirement to deliver a Notice of Borrowing in Section
2.02(b), which conditions and requirement such Lenders irrevocably waive) in an
amount equal to such Lender's Pro Rata Share of the aggregate amount of the
Swing Loans then outstanding (net of that portion of such Swing Loan, if any,
owing to such Lender in its capacity as a Swing Loan Bank) after giving effect
to any prepayments and repayments made by the Company, and the Company hereby
authorizes the Administrative Agent to apply the proceeds of such Revolving
Loans to the repayment of such Swing Loans. To the extent the Administrative
Agent receives any amounts in prepayment or repayment of outstanding Revolving
Loans prior to such request, the Administrative Agent shall apply such amounts
when received to the repayment of the Swing Loans then outstanding. The failure
of any Lender to make available to the Administrative Agent its Pro Rata Share
of such Revolving Loans shall not relieve any other Lender of its obligation
hereunder to make available to the Administrative Agent such other Lender's Pro
Rata Share of such Revolving Loans on the date of such request. No Lender shall
be responsible for any failure by any other Lender to perform its obligations to
make such Revolving
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Loans hereunder nor shall the Revolving Credit Commitment of any Lender be
increased or decreased as a result of such failure.
(e) Use of Proceeds of Swing Loans. The proceeds of the Swing Loans
may be used for working capital in the ordinary course of the Company's business
and for lawful general corporate purposes of the Company not prohibited
hereunder.
2.04. Letters of Credit. Subject to the terms and conditions set forth
herein, each Issuing Bank hereby severally agrees to Issue for the account of
the Borrowers one or more Letters of Credit, up to an aggregate face amount at
any one time outstanding equal to the Letter of Credit Availability, subject to
the following provisions:
(a) Types and Amounts. An Issuing Bank shall not have any obligation
to Issue, and shall not Issue any Letter of Credit at any time:
(i) if the aggregate Letter of Credit Obligations with respect to such
Issuing Bank, after giving effect to the Issuance of the Letter of Credit
requested hereunder, shall exceed any limit imposed by law or regulation
upon such Issuing Bank;
(ii) if the Issuing Bank receives written notice (A) from the
Administrative Agent at or before 11:00 a.m. (New York time) on the date of
the proposed Issuance of such Letter of Credit that immediately after
giving effect to the Issuance of such Letter of Credit, (1) the Revolving
Credit Obligations at such time would exceed the Maximum Revolving Credit
Amount at such time, (2) the undrawn face amount of the Letter of Credit
Obligations denominated in Alternative Currencies, when aggregated with all
other Revolving Credit Obligations denominated in Alternative Currencies,
would exceed the Multicurrency Sublimit, or (3) in the case such Letter of
Credit is being issued for the account of a Foreign Borrower, the Revolving
Credit Obligations owing by such Foreign Borrower at such time would exceed
such Foreign Borrower's Foreign Borrower Sublimit or (B) from any of the
Lenders at or before 11:00 a.m. (New York time) on the date of the proposed
Issuance of such Letter of Credit that one or more of the conditions
precedent contained in Sections 5.01 or 5.02, as applicable, would not on
such date be satisfied (or waived pursuant to Section 13.07), unless such
conditions are thereafter satisfied or waived and written notice of such
satisfaction or waiver is given to the Issuing Bank by the Administrative
Agent (and an Issuing Bank shall not otherwise be required to determine
that, or take notice whether, the conditions
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precedent set forth in Sections 5.01 or 5.02, as applicable, have been
satisfied or waived); or
(iii) which has an expiration date later than the earlier of (A) the
date one (1) year after the date of issuance (without regard to any renewal
provisions thereof) or (B) the Revolving Credit Termination Date; or
(iv) which is in a currency other than Dollars or an Alternative
Currency in which such Issuing Bank is then issuing letters of credit.
(b) Conditions. In addition to being subject to the satisfaction of
the conditions precedent contained in Sections 5.01 and 5.02, as applicable, the
obligation of an Issuing Bank to Issue any Letter of Credit for the account of a
Borrower is subject to the satisfaction in full of the following conditions:
(i) if the Issuing Bank so requests, such Borrower shall have executed
and delivered to such Issuing Bank and the Administrative Agent a Letter of
Credit Reimbursement Agreement and such other documents and materials as
may be required pursuant to the terms thereof; and
(ii) the terms of the proposed Letter of Credit shall be satisfactory
to the Issuing Bank in its sole discretion consistent with commercial
practices.
(c) Issuance of Letters of Credit. (i) The Company shall give an
Issuing Bank and the Administrative Agent written notice that it has selected
such Issuing Bank to Issue a Letter of Credit (A) not later than 11:00 a.m. (New
York time) on the requested date (which shall be a Business Day) for Issuance of
any Letter of Credit denominated in Dollars and (B) not later than 2:00 p.m.
(London time) on the fourth Business Day preceding the requested date (which
shall be a Business Day) for Issuance of any Letter of Credit denominated in an
Alternative Currency. Such notice shall be irrevocable unless and until such
request is denied by the applicable Issuing Bank and shall specify (A) that the
requested Letter of Credit is either a Commercial Letter of Credit or a Standby
Letter of Credit, (B) the stated amount and currency of the Letter of Credit
requested, (C) the effective date (which shall be a Business Day) of Issuance of
such Letter of Credit, (D) the date on which such Letter of Credit is to expire,
(E) the Person for whose benefit such Letter of Credit is to be Issued, (F) the
Borrower for whose account the requested Letter of Credit is to be Issued, (G)
other relevant terms of such Letter of Credit and (H) the amount of the then
outstanding Letter of Credit Obligations. Such Issuing Bank shall notify the
Administrative Agent immediately upon receipt of a written notice
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from the Company requesting that a Letter of Credit be Issued and, upon the
Administrative Agent's request therefor, send a copy of such notice to the
Administrative Agent.
(ii) The Issuing Bank shall give the Administrative Agent written
notice, or telephonic notice confirmed promptly thereafter in writing, of the
Issuance of a Letter of Credit (which notice the Administrative Agent shall
promptly transmit by telegram, telex, telecopy, telephone or similar
transmission to each Lender).
(d) Reimbursement Obligations; Duties of Issuing Banks. (i)
Notwithstanding any provisions to the contrary in any Letter of Credit
Reimbursement Agreement:
(A) the Borrower for whose account a Letter of Credit has been Issued
shall reimburse the Issuing Bank for amounts drawn under such Letter of
Credit pursuant to subsection (e)(ii) below, in the currency in which such
Letter of Credit is denominated, no later than the date (the "Reimbursement
Date") which is one (1) Business Day after such Borrower receives written
notice from the Issuing Bank that payment has been made under such Letter
of Credit by the Issuing Bank; and
(B) all Reimbursement Obligations with respect to any Letter of Credit
shall bear interest at the rate applicable to Base Rate Loans (if such
Letter of Credit is denominated in Dollars) or Eurocurrency Rate Loans with
Eurocurrency Rate Interest Periods determined by the Administrative Agent
(if such Letter of Credit is denominated in an Alternative Currency), in
each case in accordance with Section 4.01(a) from the date of the relevant
drawing under such Letter of Credit until the Reimbursement Date and
thereafter at the rate applicable in accordance with Section 4.01(d).
(ii) The applicable Issuing Bank shall give the Administrative Agent
written notice, or telephonic notice confirmed promptly thereafter in writing,
of all drawings under a Letter of Credit and the payment (or the failure to pay
when due) by the applicable Borrower on account of a Reimbursement Obligation
(which notice the Administrative Agent shall promptly transmit by telegram,
telex, telecopy or similar transmission to each Lender).
(iii) No action taken or omitted in good faith by an Issuing Bank
under or in connection with any Letter of Credit shall put such Issuing Bank
under any resulting liability to any Lender or, so long as such Letter of Credit
is not Issued in violation of Section 2.04(a), relieve any Lender of its
obligations hereunder to such Issuing Bank. Solely as between
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the Issuing Banks and such Lenders, in determining whether to pay under any
Letter of Credit, the respective Issuing Bank shall have no obligation to the
Lenders other than to confirm that any documents required to be delivered under
a respective Letter of Credit appear to have been delivered and that they appear
on their face to comply with the requirements of such Letter of Credit.
(e) Participations. (i) Immediately upon Issuance by an Issuing Bank
of any Letter of Credit in accordance with the procedures set forth in this
Section 2.04, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from that Issuing Bank, without recourse
or warranty, an undivided interest and participation in such Letter of Credit to
the extent of such Lender's Pro Rata Share, including, without limitation, all
obligations of applicable Borrower with respect thereto (other than amounts
owing to the Issuing Bank under Section 2.04(g)) and any security therefor and
guaranty pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter of Credit
and the applicable Borrower does not repay such amount to the Issuing Bank on
the Reimbursement Date, the Issuing Bank shall promptly notify the
Administrative Agent, which shall promptly notify each Lender, and each such
Lender shall promptly and unconditionally pay to the Administrative Agent for
the account of such Issuing Bank, in immediately available funds, the amount of
such Lender's Pro Rata Share of such payment (net of that portion of such
payment, if any, made by such Lender in its capacity as an Issuing Bank), and
the Administrative Agent shall promptly pay to the Issuing Bank's account,
pursuant to this Section 2.04(e). All such payments shall constitute Revolving
Loans made to the applicable Borrower pursuant to Section 2.02 (irrespective of
the satisfaction of the conditions in Section 5.02 or the requirement in Section
2.02(b) to deliver a Notice of Borrowing which conditions and requirement, for
the purpose of refunding any Reimbursement Obligation owing to any Issuing Bank,
the Lenders irrevocably waive) and shall thereupon cease to be unpaid
Reimbursement Obligations. Such Revolving Loans shall be Base Rate Loans (if
such Letter of Credit is denominated in Dollars) or Eurocurrency Rate Loans with
Eurocurrency Rate Interest Periods determined by the Administrative Agent (if
such Letter of Credit is denominated in an Alternative Currency). If a Lender
does not make its Pro Rata Share of the amount of such payment available to the
Administrative Agent, such Lender agrees to pay to the Administrative Agent for
the account of the Issuing Bank, forthwith on demand, such amount together with
interest thereon, for the first Business Day after the date such payment was
first due at the Interbank Rate, and thereafter at the interest rate then
applicable to Base Rate Loans (in the case of Revolving
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Loans denominated in Dollars) and Eurocurrency Loans with a Eurocurrency
Interest Period of one week (in the case of Multicurrency Loans), in each case
in accordance with Section 4.01(a). The failure of any such Lender to make
available to the Administrative Agent for the account of an Issuing Bank its Pro
Rata Share of any such payment shall neither relieve any other Lender of its
obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Bank such other Lender's Pro Rata Share of any payment
on the date such payment is to be made nor increase the obligation of any other
Lender to make such payment to the Administrative Agent. This Section does not
relieve any Lender of its obligation to purchase Pro Rata Share participations
in Letters of Credit; nor does this Section relieve the applicable Borrower of
its obligation to pay or repay any Issuing Bank funding its Pro Rata Share of
such payment pursuant to this Section interest on the amount of such payment
from such date such payment is to be made until the date on which payment is
repaid in full.
(iii) Whenever an Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as to which any Lender
has made a Revolving Loan pursuant to clause (ii) of this Section, such Issuing
Bank shall promptly pay to the Administrative Agent such payment in accordance
with Section 3.02. Each such payment shall be made by such Issuing Bank or the
Administrative Agent, as the case may be, on the Business Day on which such
Person receives the funds paid to such Person pursuant to the preceding
sentence, if received prior to 11:00 a.m. (New York time) on such Business Day,
and otherwise on the next succeeding Business Day.
(iv) Upon the request of any Lender to the Administrative Agent, an
Issuing Bank shall furnish such Lender copies of any Letter of Credit or Letter
of Credit Reimbursement Agreement to which such Issuing Bank is party and such
other documentation as reasonably may be requested by such Lender.
(v) The obligations of a Lender to make payments to the Administrative
Agent for the account of any Issuing Bank with respect to a Letter of Credit
issued for the account of any Borrower, shall be irrevocable, shall not be
subject to any qualification or exception whatsoever except willful misconduct
or gross negligence of such Issuing Bank as determined in a final,
non-appealable judgment by a court of competent jurisdiction, and shall be
honored in accordance with this Article II (irrespective of the satisfaction of
the conditions described in Sections 5.01 and 5.02, as applicable which
conditions, for the purposes of the repayment of Letters of Credit to the
Issuing Bank, such Lenders irrevocably waive) under all circumstances,
including, without limitation, any of the following circumstances:
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(A) any lack of validity or enforceability hereof or of any of the
other Loan Documents;
(B) the existence of any claim, setoff, defense or other right which
such Borrower may have at any time against a beneficiary named in a Letter
of Credit or any transferee of a beneficiary named in a Letter of Credit
(or any Person for whom any such transferee may be acting), the
Administrative Agent, any Co-Agent, any Issuing Bank, any Lender, or any
other Person, whether in connection herewith, with any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the account party and
beneficiary named in any Letter of Credit);
(C) any draft, certificate or any other document presented under the
Letter of Credit having been determined to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents;
(E) any failure by such Issuing Bank to make any reports required
pursuant to Section 2.04(h) or the inaccuracy of any such report; or
(F) the occurrence of any Event of Default or Default.
(f) Payment of Reimbursement Obligations. Subject to the terms hereof,
(i) the Borrower for whose account a Letter of Credit is Issued unconditionally
agrees to pay to each Issuing Bank, in Dollars, the amount of all Reimbursement
Obligations, interest and other amounts payable to such Issuing Bank under or in
connection with such Letter of Credit when such amounts are due and payable,
irrespective of any claim, setoff, defense or other right which such Borrower
may have at any time against any Issuing Bank or any other Person.
(ii) In the event any payment by a Borrower received by an Issuing
Bank with respect to a Letter of Credit and distributed by the Administrative
Agent to the Lenders on account of their participation is thereafter set aside,
avoided or recovered from such Issuing Bank in connection with any receivership,
liquidation or bankruptcy proceeding, each such Lender which received such
distribution shall, upon demand by such Issuing Bank, contribute such Lender's
Pro Rata Share of the amount set aside, avoided or recovered together with
interest at the
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rate required to be paid by such Issuing Bank upon the amount required to be
repaid by it.
(g) Issuing Bank Charges. Each Borrower shall pay to each Issuing
Bank, solely for its own account, the standard charges assessed by such Issuing
Bank in connection with the issuance, administration, amendment and payment or
cancellation of Letters of Credit and such compensation in respect of such
Letters of Credit for such Borrower's account as may be agreed upon by such
Borrower and such Issuing Bank from time to time.
(h) Issuing Bank Reporting Requirements. Each Issuing Bank shall, no
later than the tenth (10th) Business Day following the last day of each calendar
month, provide to the Administrative Agent and the Company separate schedules
for Commercial Letters of Credit and Standby Letters of Credit issued by the
Borrowers, in form and substance reasonably satisfactory to the Administrative
Agent and the Company, setting forth the aggregate Letter of Credit Obligations
outstanding to the Borrowers at the end of each month and any information
requested by the Administrative Agent or the Company relating to the date of
issue, account party, amount, expiration date and reference number of each
Letter of Credit issued by the Borrowers.
(i) Indemnification; Exoneration. (A) In addition to all other amounts
payable to an Issuing Bank, each Borrower hereby agrees to defend, indemnify,
and save the Administrative Agent, each Co-Agent, each Issuing Bank and each
Lender harmless from and against any and all claims, demands, liabilities,
penalties, damages, losses (other than loss of profits), costs, charges and
expenses (including reasonable attorneys' fees but excluding taxes) which the
Administrative Agent, such Co-Agent, such Issuing Bank or such Lender may incur
or be subject to as a consequence, direct or indirect, of (i) the Issuance of
any Letter of Credit other than as a result of the gross negligence or willful
misconduct of the Issuing Bank, as determined by a court of competent
jurisdiction, or (ii) the failure of the Issuing Bank issuing a Letter of Credit
to honor a drawing under such Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority.
(B) As between a Borrower on the one hand and the Administrative
Agent, the Co-Agents, the Lenders and the Issuing Banks on the other hand, such
Borrower assumes all risks of the acts and omissions of, or misuse of Letters of
Credit by, the respective beneficiaries of the Letters of Credit. In furtherance
and not in limitation of the foregoing, subject to the provisions of the Letter
of Credit Reimbursement Agreements, the Administrative Agent, the Co-Agents, the
Issuing Banks and the Lenders shall not be responsible for: (i) the form,
validity, legality, sufficiency, accuracy, genuineness or legal
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effect of any document submitted by any party in connection with the application
for and Issuance of the Letters of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity, legality or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) failure of the beneficiary of
a Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; (vii) the misapplication by the beneficiary of a Letter of
Credit of the proceeds of any drawing under such Letter of Credit; (viii) any
litigation, proceeding or charges with respect to such Letter of Credit; and
(ix) any consequences arising from causes beyond the control of the
Administrative Agent, the Co-Agents, the Issuing Banks or the Lenders, except in
the cases of clauses (i), (iii), (iv), (v), (vi), (viii) and (ix) above, in each
instance for the gross negligence or willful misconduct of the Issuing Bank, as
determined in a final, non-appealable judgment by a court of competent
jurisdiction.
(j) Obligations Several. The obligations of each Issuing Bank and each
Lender under this Section 2.04 are several and not joint, and no Issuing Bank or
Lender shall be responsible for the obligation to issue Letters of Credit or
participation obligation hereunder, respectively, of any other Issuing Bank or
Lender.
2.05. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. Each Borrower hereby agrees to pay when due the
principal amount of each Loan which is made to it, and further agrees to pay
when due all unpaid interest accrued thereon, in accordance with the terms
hereof and of the Notes. Each Borrower shall execute and deliver to each Lender,
as applicable on the Effective Date, an amended and restated Swing Loan Note
substantially in the form of Exhibit I and amended and restated Revolving Credit
Notes substantially in the form of Exhibit H, evidencing the Loans and
thereafter shall execute and deliver such other promissory notes as are
necessary to evidence the Loans owing to the Lenders after giving effect to any
assignment thereof pursuant to Section 13.01, all in form and substance
acceptable to the Administrative Agent and the parties to such assignment (all
such promissory notes and all amendments thereto, replacements thereof and
substitutions therefor being
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collectively referred to as the "Notes"; and "Note" means any one of the Notes).
(b) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of each Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under each of
the Notes.
2.06. Authorized Officers and Agents. On the Effective Date and from
time to time thereafter, the Company shall deliver to the Administrative Agent
an Officers' Certificate setting forth the names of the officers, employees and
agents of the Borrowers authorized to request Revolving Loans, Swing Loans and
Letters of Credit and containing a specimen signature of each such officer,
employee or agent. The officers, employees and agents so authorized shall also
be authorized to act for the Borrowers in respect of all other matters relating
to the Loan Documents. The Administrative Agent shall be entitled to rely
conclusively on such officer's or employee's authority to request such Loan or
Letter of Credit until the Administrative Agent receives written notice to the
contrary. In addition, the Administrative Agent shall be entitled to rely
conclusively on any written notice sent to it by telecopy. The Administrative
Agent shall have no duty to verify the authenticity of the signature appearing
on, or any telecopy or facsimile of, any written Notice of Borrowing or any
other document, and, with respect to an oral request for such a Loan or Letter
of Credit, the Administrative Agent shall have no duty to verify the identity of
any person representing himself or herself as one of the officers, employees or
agents authorized to make such request or otherwise to act on behalf of the
Borrowers. None of the Administrative Agent, either Co-Agent, any Lender or any
Issuing Bank shall incur any liability to the Borrowers or any other Person in
acting upon any telecopy or facsimile or telephonic notice referred to above
which the Administrative Agent reasonably believes to have been given by a duly
authorized officer, employee or agent set forth in the most recent Officers'
Certificate delivered by the Company to the Administrative Agent.
2.07. Designation of Foreign Borrowers. (a) The Company shall have the
right to designate one or more Wholly Owned Foreign Subsidiaries (other than
Insilco GmbH) to become "Foreign Borrowers" for all purposes under this
Agreement by giving the Administrative Agent at least 30 days written notice of
its intention to designate a Foreign Borrower. The Company shall also specify in
such written notice the Foreign Borrower Sublimit for such designated Foreign
Borrower. No Foreign Borrower (including Insilco GmbH) shall be entitled to
request Revolving Loans or Letters of Credit hereunder unless the
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following conditions precedent are satisfied (it being understood and agreed
that Insilco GmbH, by being a party to this Agreement, has already satisfied the
condition in clause (i)(A) below):
(i) The Administrative Agent (on behalf of itself and the Lenders)
shall have received on or before the initial funding of any Revolving Loan to,
or the date of issuance of any Letter of Credit for the account of, such Foreign
Borrower, all of the following in form and substance satisfactory to the
Administrative Agent:
(A) A Foreign Borrower Assumption Agreement substantially in the form
of Exhibit K, duly executed by such Foreign Borrower, the Company, the
Administrative Agent and Lenders constituting the Requisite Lenders,
pursuant to which, among other things, (I) such Foreign Borrower agrees to
be bound by the terms of this Agreement applicable to Foreign Borrowers,
(II) the Requisite Lenders approve of the designation of such Foreign
Borrower and (III) the Requisite Lenders approve of the Foreign Borrower
Sublimit of such Foreign Borrower;
(B) A pledge of 65% of the Capital Stock of such Foreign Borrower as
security for the Obligations;
(C) A Revolving Credit Note payable to each Lender in a principal
amount equal to such Lender's Pro Rata Share of such Foreign Borrower's
Foreign Borrower Sublimit; and
(D) Such corporation documentation, opinions of counsel and other
documentation as the Administrative Agent may reasonably request.
(ii) No Event of Default or Default shall have occurred and be
continuing or would result from the making of any Loans to such Foreign
Borrower.
(iii) All of the representations and warranties contained in Section
6.01 and in any of the other Loan Documents shall be true and correct in all
material respects on and as of the effective date of the designation of such
Foreign Borrower (other than representations and warranties which expressly
speak as of a different date).
(iv) Such Foreign Borrower shall have received all consents and
authorizations required pursuant to any material Contractual Obligation with any
other Person and shall have obtained all consents and authorizations of, and
effected all notices to and filings with, any Governmental Authority as may be
necessary to allow such Foreign Borrower lawfully to execute, deliver and
perform, in all material respects, its obligations
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hereunder, under the other Loan Documents to which it is, or shall be, a party
and each other agreement or instrument to be executed and delivered by it
pursuant thereto or in connection therewith.
(b) Any Foreign Borrower may cease to be a Foreign Borrower for all
purposes hereunder upon (i) at least 30 days written notice from the Company to
the Administrative Agent specifying such Foreign Borrower and (ii) the payment
in full by such Foreign Borrower of all its Revolving Loans and other
Obligations (other than Obligations in respect of indemnities not yet due).
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.01. Prepayments; Reductions in Revolving Credit Commitments.
(a) Voluntary Repayments/Reductions. (i) Voluntary Repayments of
Revolving Loans. Upon at least three (3) Business Days' prior notice to the
Administrative Agent (which the Administrative Agent shall promptly transmit to
each Lender), the Borrower may repay any Base Rate Loan, in whole or in part.
Eurocurrency Rate Loans may be repaid (A) in whole or in part on the expiration
date of the then applicable Eurocurrency Interest Period, as the case may be,
and (B) upon payment of the amounts described in Section 4.02(f) on any other
Business Day upon at least three (3) Business Days' prior written notice to the
Administrative Agent (which the Administrative Agent shall promptly transmit to
each Lender). Voluntary repayments of Loans denominated in Dollars shall be in
an aggregate minimum amount of $500,000 and integral multiples of $100,000.
Voluntary repayments of Multicurrency Loans shall be in an aggregate amount
equal to an integral multiple of 100,000 units in such Alternative Currency and
(converted to the Dollar Equivalent thereof) equal to or greater than $500,000.
Any notice of repayment given to the Administrative Agent under this Section
3.01(a)(i) shall specify, in accordance with the terms hereof, the date (which
shall be a Business Day) of repayment, the aggregate principal amount and
currency of the repayment, any allocation of such amount among Loans outstanding
to the Company and the Foreign Borrowers, and any allocation of such amount
among Base Rate Loans and Eurocurrency Rate Loans. When notice of repayment is
delivered as provided herein, the principal amount of the Loans specified in the
notice shall become due and payable on the repayment date specified in such
notice, subject to the right to reborrow the same in accordance with Section
2.02. The Company may repay Swing Loans, without prior written notice to the
Administrative Agent or the Swing Loan Bank, at any time and from time to time.
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(ii) Voluntary Revolving Credit Commitment Reductions. The Company,
upon at least three (3) Business Days' prior written notice to the
Administrative Agent (which the Administrative Agent shall promptly transmit to
each Lender), shall have the right, from time to time, to terminate in whole or
permanently reduce in part the Revolving Credit Commitments, provided that the
Borrowers shall have made whatever payment may be required to reduce the
Revolving Credit Obligations to an amount less than or equal to the Maximum
Revolving Credit Amount after giving effect to such reduction or termination of
the Revolving Credit Commitments. Any partial reduction of the Revolving Credit
Commitments shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount, and shall reduce the Revolving
Credit Commitment of each Lender proportionately in accordance with its Pro Rata
Share. Any notice of termination or reduction given to the Administrative Agent
under this Section 3.01(a)(ii) shall specify the date (which shall be a Business
Day) of such termination or reduction and, with respect to a partial reduction,
the aggregate principal amount thereof. When notice of termination or reduction
is delivered as provided herein, the principal amount of the Revolving Loans
specified in the notice shall become due and payable on the date specified in
such notice.
(iii) No Prepayment Fee. The repayments and payments in respect of
reductions and terminations described in clauses (i) and (ii) of this Section
3.01(a) may be made without premium or penalty (except as provided in Section
4.02(f)).
(b) Mandatory Prepayments of Loans and Revolving Credit Commitment
Reductions.
(i) Immediately after the Borrowers' or any of the Domestic
Subsidiaries' receipt of any Net Cash Proceeds on account of (A) the sale,
assignment or other disposition of, or (B) subject to Section 8.07, the loss of
or damage to, or taking by condemnation or eminent domain of, all or any portion
of the Property of the Borrowers or any of the Domestic Subsidiaries (other than
pursuant to a Sale and Leaseback Transaction permitted pursuant to Section
9.10), the Borrower shall make or cause to be made a mandatory prepayment of the
Loans in an amount equal to 100% of such Net Cash Proceeds; provided, however,
the Borrowers and the Domestic Subsidiaries taken as a whole may retain (w) Net
Cash Proceeds of the type referred to in clause (A) or (B) above in an aggregate
amount not in excess of the first $5,000,000 in the aggregate received by them
in any Fiscal Year arising from any sale, assignment or other disposition (or
series of related sales, assignments or other dispositions), or loss, damage or
condemnation, (x) the Rolodex Proceeds, (y) any net cash proceeds received in
respect of a certain promissory note from Xxxxxxxx Properties II, LLC to Insilco
dated December 27, 1995 in the principal amount of $3,500,000 and (z)
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any net cash proceeds received in respect of the sale of certain assets of
Thermal Components Division, Inc. identified on Schedule 9.02.
(ii) Immediately after the Borrowers' or any of the Domestic
Subsidiaries' receipt of any Net Cash Proceeds identified in clause (iii)(A) of
the definition of "Net Cash Proceeds" (other than a return of the Rolodex
Proceeds by certain of the Company's shareholders in connection with an unwind,
rescission or other reversal of the private repurchase of shares pursuant to
clause (i) of the definition of Stock Repurchase), the Borrowers shall make or
cause to be made a mandatory prepayment of the Loans in an amount equal to
twenty-five percent (25%) of such Net Cash Proceeds.
(iii) Immediately after the Company's or any of the Domestic
Subsidiaries' receipt of any Net Cash Proceeds from the issuance of
Indebtedness, the Company shall make or cause to be made a mandatory prepayment
of the Loans in an amount equal to 100% of such Net Cash Proceeds.
(iv) Immediately after the Company's or any of its Domestic
Subsidiaries' receipt of any Net Cash Proceeds from any Sale and Leaseback
Transaction, the Company shall make or cause to be made a mandatory prepayment
in the amount equal to 100% of such Net Cash Proceeds; provided, however, the
Borrower and the Domestic Subsidiaries taken as a whole may retain Net Cash
Proceeds not in excess of $10,000,000 in the aggregate since the Effective Date
arising from any Sale and Leaseback Transaction.
(v) Nothing in this Section 3.01(b) shall be construed to constitute
the Lenders' consent to any transaction which is not permitted by Article IX.
(vi) On the date any mandatory prepayment is received by the
Administrative Agent pursuant to clause (i), (ii), (iii) or (iv) above (each
such payment being a "Designated Prepayment"), such Designated Prepayment shall
be allocated and applied to the Revolving Credit Obligations in accordance with
Section 3.02(b) (with a corresponding permanent reduction in the Revolving
Credit Commitments equal to the amount of such Designated Prepayment); provided,
however, (A) in the case of any Net Cash Proceeds arising from the sale the
Company's Wholly Owned Subsidiary, Xxxxxx Publishing Company, or all or any
portion of the assets thereof, the Revolving Credit Commitments shall only be
permanently reduced by 50% of the amount of any such Designated Prepayment and
(B) any Net Cash Proceeds of the type set forth in clause (i)(A) or (B) above
received by the Borrowers or any of the Domestic Subsidiaries after the receipt
of the Administrative Agent of financial statements pursuant to Section 7.01(b)
indicating that the Leverage Ratio of the Company and its Subsidiaries (pro
forma after giving effect to the sale
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or other disposition giving rise to such Net Cash Proceeds) is less than or
equal to 4.0 to 1, the Revolving Credit Commitments shall only be permanently
reduced by 50% of the amount of any such Designated Prepayment; provided,
further, however, solely in the case of clause (vi)(B) above, in the event an
amount equal to 50% of the amount of such Designated Prepayment is not
reinvested in any Investment or Capital Expenditure in the business of the
Borrowers or any of the Domestic Subsidiaries (to the extent otherwise permitted
hereunder) within 180 days after the receipt thereof, the Revolving Credit
Commitments shall be further permanently reduced by an amount equal to that
portion of the remaining 50% of such Designated Prepayment that was not so
reinvested on the last day of such 180-day period. Any such prepayments shall be
applied first to Base Rate Loans (if in Dollars) and then to any Eurocurrency
Rate Loans with those Loans which have earlier expiring Interest Periods being
repaid prior to those which have later expiring Interest Periods.
(vii) Immediately, (A) if at any time the Revolving Credit Obligations
are greater than the Maximum Revolving Credit Amount, the Borrowers shall make a
mandatory repayment of the Revolving Credit Obligations in an amount equal to
such excess, such amount to be applied in accordance with Section 3.02(b); (B)
to the extent the Maximum Revolving Credit Amount is at any time less than the
amount of contingent Letter of Credit Obligations outstanding at such time, the
Borrowers shall deposit Cash Collateral with the Administrative Agent in an
amount equal to the amount by which such Letter of Credit Obligations exceed
such Maximum Revolving Credit Amount; (C) if at any time the Dollar Equivalent
of the aggregate outstanding amount of Revolving Credit Obligations denominated
in Alternative Currencies exceeds the Multicurrency Sublimit for a period of 30
days, the Borrowers shall make a mandatory repayment of the Multicurrency Loans
in the amount of such excess on the last day of such period and (D) if at any
time the Dollar Equivalent of aggregate outstanding amount of Revolving Credit
Obligations owing by any Foreign Borrower exceeds the Foreign Borrower Sublimit
applicable to such Borrower for a period of 30 days, such Borrower shall make a
mandatory repayment of Revolving Loans in the amount of such excess on the last
day of such period.
(viii) Following delivery by the Administrative Agent to the
Collection Account Banks of a Blockage Notice, funds transferred to the
Administrative Agent in accordance with Section 3.05 shall be applied to the
repayment of the Revolving Credit Obligations in the following order, except as
otherwise provided in Section 3.02(b)(ii): first, to any and all Non Pro Rata
Loans on a pro rata basis, second, to any and all outstanding Protective
Advances, third, to any and all outstanding Swing Loans, and fourth, to the
repayment of the Revolving Loans then outstanding.
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(c) Scheduled Revolving Credit Commitment Reductions. In addition to
any mandatory reductions in the Revolving Credit Commitments made pursuant to
Section 3.01(b)(vi), the Revolving Credit Commitments shall be permanently
reduced by an additional $20,000,000 on each of the third, fourth and fifth
anniversaries of the Effective Date; provided, however, in the event the Net
Cash Proceeds arising from the sale of Xxxxxx Publishing Company or all or any
portion of the assets thereof exceed $40,000,000, resulting in a reduction of
the Revolving Credit Commitments of at least $20,000,000, then the next
scheduled commitment reduction of $20,000,000, if any, will be automatically
waived.
3.02. Payments. (a) Manner and Time of Payment. All payments of
principal of and interest on the Loans and Reimbursement Obligations and other
Obligations (including, without limitation, fees and expenses) which are payable
to the Administrative Agent, the Co-Agent, the Lenders or any Issuing Bank shall
be made without condition or reservation of right, in immediately available
funds in the applicable currency, delivered to the Administrative Agent (or, in
the case of Reimbursement Obligations, to the pertinent Issuing Bank) not later
than 1:00 p.m. (in the location of the Applicable Payment Office) on the date
and at the place due, to such account of the Administrative Agent (or such
Issuing Bank) as it may designate, for the account of the Administrative Agent,
the Lenders or such Issuing Bank. Thereafter, payments in respect of any Swing
Loans received by the Administrative Agent shall be distributed to the Swing
Loan Bank and payments in respect of any Revolving Loan received by the
Administrative Agent shall be distributed to each Lender in accordance with its
Pro Rata Share in accordance with the provisions of Section 3.02(b), in each
case on the date received, if received prior to 1:00 p.m. (in the location of
the Applicable Payment Office), and (except in the case of repayment of Swing
Loans) on the next succeeding Business Day, if received thereafter, by the
Administrative Agent.
(b) Apportionment of Payments. (i) Subject to the provisions of
Section 3.02(b)(ii) and (v), except as otherwise provided herein (A) all
payments of principal and interest in respect of outstanding Revolving Loans,
and all payments in respect of Reimbursement Obligations, shall be allocated
among such of the Lenders and Issuing Banks as are entitled thereto, in
proportion to their respective Pro Rata Shares and (B) all payments of fees and
all other payments in respect of any other Obligations shall be allocated among
such of the Lenders and Issuing Banks as are entitled thereto, in proportion to
their respective Pro Rata Shares. All such payments and any other amounts
received by the Administrative Agent from or for the benefit of the Borrowers
shall be applied first, to pay principal of and interest on any portion of the
Loans which the Administrative Agent may have advanced pursuant to the express
provisions of this Agreement on behalf of any Lender other than
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the Lender then acting as Administrative Agent, for which the Administrative
Agent has not then been reimbursed by such Lender or the Borrowers, second, to
pay principal of and interest on any Protective Advance for which the
Administrative Agent has not then been paid by the Borrowers or reimbursed by
the Lenders, third, to pay all other Obligations then due and payable and
fourth, as the Company so designates. Except as set forth in Sections 3.01(a),
(b) and (c) and unless otherwise designated by the Company, all principal
payments in respect of outstanding Swing Loans or Revolving Loans, as the case
may be, shall be applied first, to the outstanding Swing Loans and second, to
the outstanding Revolving Loans, in each case, first, to repay outstanding Base
Rate Loans, and then to repay outstanding Eurocurrency Rate Loans with those
Loans which have earlier expiring Interest Periods being repaid prior to those
which have later expiring Interest Periods.
(ii) After the occurrence and during the continuance of an Event of
Default, the Administrative Agent may, and shall upon the acceleration of the
Obligations pursuant to Section 11.02(a), apply all payments in respect of any
Obligations and all proceeds of Collateral in the following order; provided that
payments made by a Foreign Borrower shall be applied first to the Obligations of
such Foreign Borrower:
(A) first, to pay interest on and then principal of any portion of the
Revolving Loans which the Administrative Agent may have advanced on behalf
of any Lender for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrowers;
(B) second, to pay interest on and then principal of first any
outstanding Protective Advance and then any Swing Loan;
(C) third, to pay Obligations in respect of any expense reimbursements
or indemnities then due to the Administrative Agent;
(D) fourth, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Co-Agents, the Lenders and
the Issuing Banks;
(E) fifth, to pay Obligations in respect of any fees then due to the
Administrative Agent, the Co-Agents, the Lenders and the Issuing Banks;
(F) sixth, to pay interest due in respect of the Loans and
Reimbursement Obligations;
(G) seventh, to pay or prepay (or, to the extent such Obligations are
contingent, provide Cash Collateral pursuant
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to Section 11.02(b) in respect of) principal outstanding on Loans and all
outstanding Letter of Credit Obligations;
(H) eighth, to the ratable payment of Interest Rate Contracts and
Currency Agreements to which any of the Lenders or any Affiliate of the
Lenders is a party; and
(I) ninth, to the ratable payment of all other Obligations;
provided, however, if sufficient funds are not available to fund the payments to
be made in respect of any of the Obligations described in any of the foregoing
clauses (A) through (I), the available funds being applied with respect to any
such Obligations referred to in any one such clause (unless otherwise specified
in such clause) shall be allocated in accordance with the order of priority
established by such clause to the payment of such Obligations ratably, based on
the proportion of the Administrative Agent's and each Co-Agent's, Lender's or
Issuing Bank's interest in the aggregate outstanding Obligations described in
such clause.
The order of priority set forth in this Section 3.02(b)(ii) and the related
provisions hereof are set forth solely to determine the rights and priorities of
the Administrative Agent, the Co-Agents, the Lenders, the Issuing Banks and
other Holders as among themselves. The order of priority set forth in clauses
(A) through (I) of this Section 3.02(b)(ii) may at any time and from time to
time be changed by the agreement of the Requisite Lenders without necessity of
notice to or consent of or approval by the Borrower, any Holder which is not a
Lender or Issuing Bank, or any other Person; provided, however, the order of
priority set forth in clauses (A) through (E) of this Section 3.02(b)(ii) may
not be changed without the prior written consent of the Administrative Agent.
(iii) All payments of principal on the Swing Loans, Protective
Advances, Reimbursement Obligations, interest, fees and other sums payable in
respect of the Revolving Loans may, at the option of the Administrative Agent,
be paid from the proceeds of the Revolving Loans. The Borrower hereby authorizes
the Swing Loan Bank to make pursuant to Section 2.03(a) and the Lenders to make
pursuant to Section 2.02(a) in Dollars, from time to time in the Swing Loan
Bank's or the Administrative Agent's discretion, Revolving Loans which are in
the amounts of any and all principal on the Swing Loans, interest, fees and
other sums payable in respect of the Revolving Loans (or the Dollar Equivalent
thereof if not denominated in Dollars), and further authorizes the
Administrative Agent (A) to give the Lenders notice of any Borrowing with
respect to such Revolving Loans and (B) to distribute the proceeds of such
Revolving Loans to pay such amounts. The Administrative Agent agrees to give the
Borrower
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notice of any such Borrowing, but the failure to give such notice shall in no
way limit the rights of the Administrative Agent in the preceding sentence. The
Borrower agrees that all such Revolving Loans so made shall be deemed to have
been requested by it and directs that all proceeds thereof shall be used to pay
such amounts. All such Revolving Loans shall be Base Rate Loans.
(iv) The Administrative Agent shall promptly distribute to each Lender
and Issuing Bank at its primary address set forth on the appropriate signature
page hereof or the signature page to the Assignment and Acceptance by which it
became a Lender or Issuing Bank, or to each Lender, Issuing Bank or other Holder
at such other address as such Lender, Issuing Bank or other Holder may request
in writing, such funds as such Person may be entitled to receive, subject to the
provisions of Article XII; provided that, as between the Holders and the
Administrative Agent, the Administrative Agent shall under no circumstances be
bound to inquire into or determine the validity, scope or priority of any
interest or entitlement of any Holder and may suspend all payments or seek
appropriate relief (including, without limitation, instructions from the
Requisite Lenders or an action in the nature of interpleader) in the event of
any doubt or dispute as to any apportionment or distribution contemplated
hereby.
(v) If any Lender fails to fund its Pro Rata Share of any Revolving
Loan Borrowing requested by a Borrower which such Lender is obligated to fund
under the terms hereof (the funded portion of such Revolving Loan Borrowing
being hereinafter referred to as a "Non Pro Rata Loan"), excluding any such
Lender who has delivered to the Administrative Agent written notice that one or
more of the conditions precedent contained in Section 5.02 shall not on the date
of such request be satisfied and until such conditions are satisfied, then until
the earlier of such Lender's cure of such failure and the termination of the
Revolving Credit Commitments, the proceeds of all amounts thereafter repaid to
the Administrative Agent by such Borrower and otherwise required to be applied
to such Lender's share of all other Obligations pursuant to the terms hereof
shall be deemed to have been advanced to such Borrower by the Administrative
Agent on behalf of such Lender to cure, in full or in part, such failure by such
Lender, but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything contained
herein to the contrary:
(A) the foregoing provisions of this Section 3.02(b)(v) shall apply
only with respect to the proceeds of payments of Obligations;
(B) a Lender shall be deemed to have cured its failure to fund its Pro
Rata Share of any Revolving Loan at such time as an amount equal to such
Lender's
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original Pro Rata Share of the requested principal portion of such
Revolving Loan is fully funded to such Borrower, whether made by such
Lender itself or by operation of the terms of this Section 3.02(b)(v), and
whether or not the Non Pro Rata Loan with respect thereto has been repaid;
(C) amounts advanced to such Borrower to cure, in full or in part, any
such Lender's failure to fund its Pro Rata Share of any Revolving Loan
Borrowing ("Cure Loans") shall bear interest at the rate applicable to the
other Revolving Loans comprising such Borrowing and shall be treated as
Revolving Loans comprising such Borrowing for all purposes herein;
(D) regardless of whether or not an Event of Default has occurred or
is continuing, and notwithstanding the instructions of such Borrower as to
its desired application, all repayments of principal which, in accordance
with the other terms of this Section 3.02, would be applied to the
outstanding Revolving Loans shall be applied first, ratably to all
Revolving Loans constituting Non Pro Rata Loans, second, ratably to
Revolving Loans other than those constituting Non Pro Rata Loans or Cure
Loans and, third, ratably to Revolving Loans constituting Cure Loans; and
(E) No Lender shall be relieved of any obligation such Lender may have
to the Borrowers under the terms of this Agreement as a result of the
provisions of this Section 3.02(b)(v).
(c) Payments on Non-Business Days. Whenever any payment to be made by
the Borrowers hereunder or under the Notes is stated to be due on a day which is
not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 4.02(b)(iv), the next preceding
Business Day), and any such extension of time shall be included in the
computation of the payment of interest and fees hereunder.
(d) Payment Currency. Except as expressly set forth herein to the
contrary, all payments made by any Borrower in respect of principal and interest
on the Loans and Reimbursement Obligations shall be made (i) with respect to
Loans and Reimbursement Obligations denominated in Dollars, in Dollars, and (ii)
with respect to Multicurrency Loans or Reimbursement Obligations denominated in
an Alternative Currency, in the Alternative Currency in which such Loan or the
Letter of Credit giving rise to such Reimbursement Obligation was made.
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3.03. Taxes.
(a) Payment of Taxes. Any and all payments by any Borrower hereunder
or under any Note or other document evidencing any Obligations shall be made
free and clear of and without reduction for any and all taxes, levies, imposts,
deductions, charges, withholdings, and all stamp or documentary taxes, excise
taxes, ad valorem taxes and other taxes imposed on the value of the Property of
the Company and its Subsidiaries, charges or levies which arise from the
execution, delivery or registration, or from payment or performance under, or
otherwise with respect to, any of the Loan Documents or the Revolving Credit
Commitments and all other liabilities with respect thereto excluding, in the
case of each Lender, each Issuing Bank, each Co-Agent and the Administrative
Agent, taxes imposed on its income, capital, profits or gains and franchise
taxes imposed on it by (i) the United States, except certain withholding taxes
contemplated pursuant to Section 3.03(d)(ii)(C), (ii) the Governmental Authority
of the jurisdiction in which such Lender's Applicable Lending Office is located
or any political subdivision thereof or (iii) the Governmental Authority of the
jurisdiction in which such Person is organized, managed and controlled or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If any Borrower shall be required by law to withhold or deduct any
Taxes from or in respect of any sum payable hereunder or under any such Note or
document to any Lender, any Issuing Bank, any Co-Agent or the Administrative
Agent, (x) the sum payable to such Lender, such Issuing Bank, such Co-Agent or
the Administrative Agent shall be increased as may be necessary so that after
making all required withholding or deductions of Taxes (including withholding or
deductions of Taxes applicable to additional sums payable under this Section
3.03 of Taxes) such Lender, such Issuing Bank, such Co-Agent or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such withholding or deductions of Taxes been made,
(y) such Borrower shall make such withholding or deductions, and (z) such
Borrower shall pay the full amount withheld or deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) Indemnification. Each Borrower will indemnify each Lender, each
Issuing Bank, each Co-Agent and the Administrative Agent against, and reimburse
each on demand for, the full amount of all Taxes (including, without limitation,
any Taxes imposed by any Governmental Authority on amounts payable under this
Section 3.03 and any additional income or franchise taxes resulting therefrom)
incurred or paid by such Lender, such Issuing Bank, such Co-Agent or the
Administrative Agent (as the case may be) or any of their respective Affiliates
and any liability (including penalties, interest, and reasonable out-of-
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pocket expenses paid to third parties) arising therefrom or with respect
thereto, whether or not such Taxes were lawfully payable. A certificate as to
any additional amount payable to any Person under this Section 3.03 submitted by
it to such Borrower shall, absent manifest error, be final, conclusive and
binding upon all parties hereto. In determining such additional amount, such
Person shall take into account and reduce the amount otherwise payable by such
Borrower pursuant to this Section 3.03 by an amount equal to the tax credits and
other tax benefits actually utilized (as determined by such Person in its
reasonable judgment). Each Lender, each Co-Agent, the Administrative Agent and
each Issuing Bank agrees, within a reasonable time after receiving a written
request from a Borrower, to provide such Borrower and the Administrative Agent
with such certificates as are reasonably required, and to take such other
actions as are reasonably necessary to claim such exemptions as such Lender,
such Co-Agent, the Administrative Agent, such Issuing Bank or Affiliate may be
entitled to claim in respect of all or a portion of any Taxes which are
otherwise required to be paid or deducted or withheld pursuant to this Section
3.03 in respect of any payments under this Agreement or under the Notes.
(c) Receipts. Within thirty (30) days after the date of any payment of
Taxes by the Company or any of its Subsidiaries, the Company will furnish to the
Administrative Agent, at its address referred to in Section 13.08, the original
or a copy of a receipt, if any, or other documentation reasonably satisfactory
to the Administrative Agent, evidencing payment thereof. The Company shall
furnish to the Administrative Agent upon the request of the Administrative Agent
from time to time an Officer's Certificate stating that all Taxes of which it
has obtained knowledge are due have been paid and that no additional Taxes of
which it has obtained knowledge are due.
(d) Foreign Bank Certifications. (i) Each Lender or Issuing Bank that
is not created or organized under the laws of the United States or a political
subdivision thereof has delivered to the Company and the Administrative Agent on
the date on which such Lender became a Lender or such Issuing Bank became an
Issuing Bank or shall deliver to the Company on the date such Lender becomes a
Lender or such Issuing Bank becomes an Issuing Bank, if such date is after the
Effective Date, a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender or Issuing Bank to the effect that such Lender
or Issuing Bank is eligible to receive payments hereunder and under the Notes
without deduction or withholding (or with reduced deduction or withholding) of
United States federal income tax (I) under the provisions of an applicable tax
treaty concluded by the United States (in which case the certificate shall be
accompanied by two duly completed copies of IRS Form 1001 (or any successor or
substitute form or forms)) or (II) under Section 1441(c)(1) as modified for
purposes of Section
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1442(a) of the Internal Revenue Code (in which case the certificate shall be
accompanied by two duly completed copies of IRS Form 4224 (or any successor or
substitute form or forms)).
(ii) Each Lender and each Issuing Bank further agrees to deliver to
the Company and the Administrative Agent from time to time, a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender or
such Issuing Bank before or promptly upon the occurrence of any event requiring
a change in the most recent certificate previously delivered by it to the
Company and the Administrative Agent pursuant to this Section 3.03(d)
(including, but not limited to, a change in such Lender's or such Issuing Bank's
lending office). Each certificate required to be delivered pursuant to this
Section 3.03(d)(ii) shall certify as to one of the following:
(A) that such Lender or such Issuing Bank can continue to receive
payments hereunder and under the Notes without deduction or withholding of
United States federal income tax;
(B) that such Lender or such Issuing Bank cannot continue to receive
payments hereunder and under the Notes without deduction or withholding of
United States federal income tax as specified therein but does not require
additional payments pursuant to Section 3.03(a) because it is entitled to
recover the full amount of any such deduction or withholding from a source
other than the Borrowers;
(C) that such Lender or Issuing Bank is no longer capable of receiving
payments hereunder and under the Notes without deduction or withholding of
United States federal income tax as specified therein by reason of a change
in law (including, without limitation, the Internal Revenue Code or
applicable tax treaty) after the later of the Effective Date or the date on
which such Lender became a Lender or such Issuing Bank became an Issuing
Bank and that it is not capable of recovering the full amount of the same
from a source other than the Borrowers; or
(D) that such Lender or such Issuing Bank is no longer capable of
receiving payments hereunder without deduction or withholding of United
States federal income tax as specified therein other than by reason of a
change in law (including the Internal Revenue Code or applicable tax
treaty) after the later of the Effective Date or the date on which such
Lender became a Lender or such Issuing Bank became an Issuing Bank.
Each Lender and each Issuing Bank agrees to deliver to the Company and the
Administrative Agent further duly completed copies of the above-mentioned IRS
forms on or before the earlier
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of (x) the date that any such form expires or becomes obsolete or otherwise is
required to be resubmitted as a condition to obtaining an exemption from
withholding from United States federal income tax and (y) fifteen (15) days
after the occurrence of any event requiring a change in the most recent form
previously delivered by such Lender or such Issuing Bank to the Company and the
Administrative Agent, unless any change in treaty, law, regulation, or official
interpretation thereof which would render such form inapplicable or which would
prevent the Lender from duly completing and delivering such form has occurred
prior to the date on which any such delivery would otherwise be required and the
Lender or the Issuing Bank promptly advises the Company that it is not capable
of receiving payments hereunder or under the Notes without any deduction or
withholding of United States federal income tax.
(e) Qualifying Lenders. In connection with the Revolving Loans made by
each Lender to the Foreign Borrowers, each Lender represents to the
Administrative Agent and Citibank London that it (or its Eurocurrency Affiliate
through which it is making such Revolving Loans) is a Qualifying Lender.
3.04. Increased Capital. If after the date hereof any Lender or
Issuing Bank determines that (i) the adoption or implementation of or any change
in or in the interpretation or administration of any law or regulation or any
guideline or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, Issuing Bank or banks or financial institutions generally (whether or
not having the force of law), compliance with which affects or would affect the
amount of capital required or expected to be maintained by such Lender or
Issuing Bank or any corporation controlling such Lender or Issuing Bank and (ii)
the amount of such capital is increased by or based upon (A) the making or
maintenance by any Lender of its Loans, any Lender's participation in or
obligation to participate in the Loans, Letters of Credit or other advances made
hereunder or the existence of any Lender's obligation to make Loans or (B) the
issuance or maintenance by any Issuing Bank of, or the existence of any Issuing
Bank's obligation to issue, Letters of Credit, then, in any such case, upon
written demand by such Lender or Issuing Bank (with a copy of such demand to the
Administrative Agent), the Company shall immediately pay to the Administrative
Agent for the account of such Lender or Issuing Bank, from time to time as
specified by such Lender or Issuing Bank, additional amounts sufficient to
compensate such Lender or Issuing Bank or such corporation therefor. Such demand
shall be accompanied by a statement as to the amount of such compensation and
include a detailed summary of the basis for such demand with detailed
calculations. Such statement shall be conclusive and binding for all purposes,
absent manifest error.
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3.05. Cash Management. (a) The Company shall, and shall cause each
Subsidiary Guarantor to, maintain the Collection Accounts with such banks
selected by the Company or such Subsidiary Guarantor in the ordinary course of
business that have executed a Collection Account Agreement in form and substance
satisfactory to the Administrative Agent. The Company shall, and shall cause
each Subsidiary Guarantor to, promptly upon receipt thereof, immediately deposit
in its Collection Accounts all monies, checks, drafts or funds received by it or
such Subsidiary Guarantor and including, without limitation, all proceeds of
Collateral, Receivables of the Company or such Subsidiary Guarantor, Net Cash
Proceeds and other cash proceeds of operations, whether arising in the ordinary
course of business or otherwise. The Company shall maintain a Concentration
Account with the Administrative Agent into which all funds deposited in each
Collection Account shall be transferred by ACH or electronic transfer from such
account pursuant to the terms of the Collection Account Agreement governing such
account.
(b) At any time after an Event of Default has occurred and is
continuing, the Administrative Agent may, or at the request of the Requisite
Lenders, shall, and is hereby authorized by the Company to, do either or both of
the following: (i) deliver a Default Notice to any Collection Account Bank or
(ii) upon notice to the Company, cease honoring all checks, demands, withdrawal
requests or remittance instructions from the Company or any Subsidiary Guarantor
with respect to the Concentration Account or any funds on deposit therein. So
long as any notice is in effect pursuant to clause (ii) above, the
Administrative Agent shall apply any and all amounts received from the
Collection Account Banks or held in the Concentration Account or otherwise held
as Cash Collateral, to the repayment of the Obligations, such amounts to be
applied in accordance with the provisions of Section 3.02(b). Notwithstanding
the foregoing, so long as any Event of Default has occurred and is continuing
and the Administrative Agent has delivered a notice pursuant to clause (ii)
above, funds held in the Concentration Account may be transferred by the
Administrative Agent to the Disbursement Account (and, subject to the terms
hereof, used by the Company or any of its Subsidiaries) at the request of the
Company only if such transfer is consented to in writing by the Requisite
Lenders and, following the acceleration of any of the Obligations pursuant to
Section 11.02(a), no such withdrawal or transfer may be made without the prior
written consent of each Lender. The Administrative Agent shall revoke any
Default Notice or any notice delivered pursuant to clause (ii) above at the
direction of the Requisite Lenders, prior to the acceleration of any of the
Obligations pursuant to Section 11.02(a) or in connection with a rescission of
acceleration pursuant to Section 11.02(c), or by all the Lenders, at any other
time after such acceleration that has not been rescinded pursuant to Section
11.02(c).
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(c) The Company shall, and shall cause each of the Subsidiary
Guarantors to, enter into a Collection Account Agreement prior to establishing
any Collection Account after the Effective Date; provided, however, neither the
Company nor the Subsidiary Guarantors shall be required to enter into any new
Collection Account Agreement in respect of any deposit account into which
proceeds of no more than $10,000 of Collateral are deposited at any time.
(d) The Company agrees to pay to the Administrative Agent any and all
reasonable fees, costs and expenses which the Administrative Agent incurs in
connection with opening and maintaining the Collection Accounts, Lockboxes and
depositing for collection any check or item of payment received by and/or
delivered to the Collection Account Banks or the Administrative Agent on account
of the Obligations. The Company agrees to reimburse the Administrative Agent for
any amounts paid to any Collection Account Bank arising out of any required
indemnification by the Administrative Agent of such Collection Account Bank
against damages incurred by the Collection Account Bank in the operation of a
Lockbox.
(e) Notwithstanding anything in this Section 3.05 to the contrary, in
the event the Company has delivered to the Administrative Agent a Compliance
Certificate for any fiscal quarter indicating that the Leverage Ratio of the
Company and its Subsidiaries for the twelve month period ending on the last day
of such fiscal quarter is less than 3.5 to 1, then, so long as no Default or
Event of Default has occurred and is continuing, upon the written request of the
Company to the Administrative Agent, the Company and the Subsidiary Guarantors
shall not be required to comply with the requirements set forth in clauses (a)
and (c) of this Section 3.05 in respect of any deposit account of the Company or
such Subsidiary Guarantor that is not the subject of an effective Collection
Account Agreement unless and until the Company has delivered to the
Administrative Agent a Compliance Certificate for any subsequent fiscal quarter
indicating that the Leverage Ratio of the Company and its Subsidiaries for the
twelve month period ending on the last day of such subsequent fiscal quarter is
greater than 4.0 to 1 (it being understood and agreed that the Company and the
Subsidiary Guarantors shall not be permitted to terminate any effective
Collection Account Agreement entered into pursuant to this Section 3.5 and the
Administrative Agent shall retain any rights it has under clause (b) of this
Section 3.05 with respect to any Collection Account subject to an effective
Collection Account Agreement, regardless of whether the Company's obligation to
establish new Collection Account Agreements has been terminated pursuant to this
Section).
3.06. Right to Remove Affected Lender. In the event that (i) the
Company receives certification of the type described in Section 3.03(d)(ii)(C)
or (D) or notice under Section 5.02(c)
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from any Lender or any Issuing Bank, (ii) any Lender gives notice to the
Administrative Agent pursuant to Section 2.02(c)(ii) (and the circumstances
specified in such notice are not generally applicable to the Lenders) or (iii)
any Lender makes a demand for compensation from any Borrower pursuant to Section
3.04 (if such increase in capital requirements is not generally applicable to
the Lenders) or Section 4.01(f), the Company, at its option and in its sole
discretion, shall have the right to designate an Eligible Assignee which is not
an Affiliate of the Company and which is reasonably acceptable to the
Administrative Agent, to purchase for cash, pursuant to an Assignment and
Acceptance, the outstanding Loans and Reimbursement Obligations (if any) of such
Lender or Issuing Bank and to assume all of such Lender's or Issuing Bank's
other rights and obligations (including, without limitation, such Lender's
obligation to participate in all outstanding Letters of Credit pursuant to
Section 2.04(e)) hereunder without recourse to or warranty by, or expense to,
such Lender or Issuing Bank, for a purchase price equal to the principal amount
of all of such Lender's outstanding Loans or such Issuing Bank's Reimbursement
Obligations plus any accrued but unpaid interest thereon and the accrued but
unpaid Unused Commitment Fees and Letter of Credit Fees in respect of that
Lender's Revolving Credit Commitment hereunder or any accrued but unpaid Letter
of Credit Fees in respect of that Issuing Bank's outstanding Letters of Credit
and any other amounts that may be owing to such Lender or Issuing Bank
hereunder. The Company agrees to pay to such Lender any breakage costs incurred
by such Lender pursuant to Section 4.02(f).
ARTICLE IV
INTEREST AND FEES
4.01. Interest on the Loans and Other Obligations. (a) Rate of
Interest. All Loans and the outstanding principal balance of all other
Obligations shall bear interest on the unpaid principal amount thereof from the
date such Loans are made and such other Obligations are due and payable until
paid in full, except as otherwise provided in Section 4.01(d), as follows:
(i) If a Base Rate Loan or such other Obligation, at a rate per annum
equal to the sum of (A) the Base Rate as in effect from time to time as
interest accrues and (B) the Applicable Base Rate Margin in effect from
time to time; and
(ii) If a Eurocurrency Rate Loan, at a rate per annum equal to the sum
of (A) the Eurocurrency Rate determined for the applicable Eurocurrency
Interest Period, plus (B) the Applicable Eurocurrency Rate
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Margin in effect from time to time during such Eurocurrency Interest
Period.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Company at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Company to the Administrative Agent;
provided, however, the Company may not select the Eurocurrency Rate as the
applicable basis for determining the rate of interest on such a Loan if (x) such
Loan is to be made on the Effective Date or (y) at the time of such selection an
Event of Default has occurred and is continuing; provided, further, however,
during the period (the "Syndication Period") beginning on the Effective Date and
ending on the earlier of (i) sixty (60) days after the Effective Date and (ii)
the date on which the Administrative Agent determines, in its sole discretion,
that the primary syndication of the Revolving Credit Commitments is completed,
the Company will not have the right to select the Eurocurrency Rate as the
applicable basis for determining the rate of interest on such a Loan unless the
Company agrees to pay all breakage costs incurred pursuant to Section 4.02(f) as
a result of the execution of Assignment and Acceptances during the Syndication
Period (it being understood and agreed that if the Company nonetheless selects
the Eurocurrency Rate during the Syndication Period, the Company may be able to
select interest periods of less than one month to the extent available and
reasonably acceptable to the Administrative Agent). If on any day any Loan is
outstanding with respect to which notice has not been timely delivered to the
Administrative Agent in accordance with the terms hereof specifying the basis
for determining the rate of interest on that day, then for that day interest on
that Loan shall be determined by reference to the Base Rate (if denominated in
Dollars) or the Eurocurrency Rate with a Eurocurrency Interest Period of one
month (if denominated in an Alternative Currency).
(b) Interest Payments. (i) Interest accrued on each Base Rate Loan
shall be payable in arrears (A) on the first day of each calendar month for the
preceding calendar month, commencing on the first such day following the making
of such Base Rate Loan and (B) if not theretofore paid in full, at maturity
(whether by acceleration or otherwise) of such Base Rate Loan.
(ii) Interest accrued on each Eurocurrency Rate Loan shall be payable
in arrears (A) on each Eurocurrency Interest Payment Date applicable to such
Loan and (B) if not theretofore paid in full, at maturity (whether by
acceleration or otherwise) of such Eurocurrency Rate Loan.
(iii) Interest accrued on the principal balance of all other
Obligations shall be payable in arrears (A) on the first day of each month,
commencing on the first such day following the
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incurrence of such Obligation and (B) if not theretofore paid in full, at the
time such other Obligation becomes due and payable (whether by acceleration or
otherwise).
(c) Conversion or Continuation. (i) The applicable Borrower shall have
the option (A) to convert at any time all or any part of outstanding Base Rate
Loans (other than Swing Loans) to Eurocurrency Rate Loans; (B) to convert all or
any part of outstanding Eurocurrency Rate Loans denominated in Dollars having
Eurocurrency Interest Periods which expire on the same date to Base Rate Loans
on such expiration date; and (C) to continue all or any part of outstanding
Eurocurrency Rate Loans having Eurocurrency Interest Periods which expire on the
same date as Eurocurrency Rate Loans, and the succeeding Eurocurrency Interest
Period of such continued Loans shall commence on such expiration date; provided,
however, no such outstanding Loan may be continued as, or be converted into, a
Eurocurrency Rate Loan (i) if the continuation of, or the conversion into, would
violate any of the provisions of Section 4.02 or (ii) if an Event of Default has
occurred and is continuing; provided, further, however, during the continuance
of an Event of Default, Eurocurrency Rate Loans denominated in Alternative
Currencies shall be continued as Eurocurrency Rate Loans with Eurocurrency
Interest Periods determined by the Administrative Agent. Any conversion into or
continuation of Eurocurrency Rate Loans under this Section 4.01(c) shall, in the
case of such Loans denominated in Dollars, be in a minimum amount of $5,000,000
and in integral multiples of $1,000,000 in excess of that amount and, in the
case of such Loans denominated in Alternative Currencies, in an aggregate
minimum amount equal to an integral multiple of 100,000 units of such currency
and (converted to the Dollar Equivalent thereof) equal to or greater than
$1,000,000.
(ii) To convert or continue a Loan under Section 4.01(c)(i), the
Company shall deliver a Notice of Conversion/Continuation to the Administrative
Agent (with a copy to Citibank London, in the case of a conversion or
continuation of a Multicurrency Loan) no later than 12:00 noon (New York time)
(or 2:00 p.m. London time, as applicable) at least three (3) Business Days in
advance of the proposed conversion/continuation date. A Notice of
Conversion/Continuation shall specify (A) the proposed conversion/continuation
date (which shall be a Business Day), (B) the principal amount and currency of
the Loan to be converted/continued, (C) whether such Loan shall be converted
and/or continued and (D) in the case of a conversion to, or continuation of, a
Eurocurrency Rate Loan, the requested Eurocurrency Interest Period. In lieu of
delivering a Notice of Conversion/Continuation, the Company may give the
Administrative Agent (and Citibank London, in the case of a conversion or
continuation of a Multicurrency Loan) telephonic notice of any proposed
conversion/continuation by the time required under this Section 4.01(c)(ii), and
such notice shall be confirmed in
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writing delivered to the Administrative Agent promptly (but in no event later
than 5:00 p.m. (New York time) on the same day). Promptly after receipt of a
Notice of Conversion/Continuation under this Section 4.01(c)(ii) (or telephonic
notice in lieu thereof), the Administrative Agent shall notify each Lender by
telex or telecopy, or other similar form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for conversion
to, or continuation of, a Loan (or telephonic notice in lieu thereof) shall be
irrevocable, and the Borrowers shall be bound to convert or continue in
accordance therewith.
(d) Default Interest. Notwithstanding the rates of interest specified
in Section 4.01(a) or elsewhere herein, effective immediately upon the
occurrence of any Event of Default and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and, to the
extent permitted by law, interest accrued but unpaid thereon shall bear interest
at a rate which is two percent (2.0%) per annum in excess of the rate of
interest applicable to such Loans from time to time (unless waived in writing by
the Requisite Lenders).
(e) Computation of Interest. Interest on (i) Base Rate Loans and all
other Obligations shall be computed on the basis of the actual number of days
elapsed in the period during which interest accrues and a 365/366 day year and
(ii) Eurocurrency Rate Loans shall be computed on the basis of the actual number
of days elapsed in the period during which interest accrues and a year of 360
days or, in the case of any Alternative Currency, as market practice may differ
for such currency, but in no event less than a year of 360 days. In computing
interest on any Loan, the date of the making of the Loan shall be included and
the date of payment shall be excluded.
(f) Changes; Legal Restrictions. If after the date hereof any Lender
or Issuing Bank determines that the adoption or implementation of or any change
in or in the interpretation or administration of any law or regulation or any
guideline or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, Issuing Bank or over banks or financial institutions generally (whether
or not having the force of law), compliance with which, in each case after the
date hereof:
(i) subjects a Lender or an Issuing Bank (or its Applicable Lending
Office) to charges (other than Taxes) of any kind which is applicable to
the Revolving Credit Commitments of the Lenders and/or the Issuing Banks to
make Eurocurrency Rate Loans or to issue and/or participate in Letters of
Credit or changes the basis of taxation of payments to that Lender or
Issuing Bank of principal, fees, interest, or any other amount
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payable hereunder with respect to Eurocurrency Rate Loans or Letters of
Credit; or
(ii) imposes, modifies, or holds applicable, any reserve (other than
reserves taken into account in calculating the Eurocurrency Rate), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities (including those
pertaining to Letters of Credit) in or for the account of, advances or
loans by, commitments made, or other credit extended by, or any other
acquisition of funds by, a Lender or an Issuing Bank or any Applicable
Lending Office or Eurocurrency Affiliate of that Lender or Issuing Bank;
and the result of any of the foregoing is to increase the cost to that Lender or
Issuing Bank of making, renewing or maintaining the Loans or its Revolving
Credit Commitments or issuing or participating in the Letters of Credit or to
reduce any amount receivable thereunder; then, in any such case, upon written
demand by such Lender or Issuing Bank (with a copy of such demand to the
Administrative Agent), the Company shall immediately pay to the Administrative
Agent for the account of such Lender or Issuing Bank, from time to time as
specified by such Lender or Issuing Bank, such amount or amounts as may be
necessary to compensate such Lender or Issuing Bank or its Eurocurrency
Affiliate for any such additional cost incurred or reduced amount received. Such
demand shall be accompanied by a statement as to the amount of such compensation
and include a detailed summary of the basis for such demand. Such statement
shall be conclusive and binding for all purposes, absent manifest error.
(g) Confirmation of Eurocurrency Rate. Upon the reasonable request of
the Company from time to time, the Administrative Agent shall promptly provide
to the Company such information with respect to the applicable Eurocurrency Rate
as may be so requested.
4.02. Special Provisions Governing Eurocurrency Rate Loans. With
respect to Eurocurrency Rate Loans:
(a) Amount of Advance. Each Eurocurrency Rate Loan shall be in the
minimum amount specified in Section 2.02(a).
(b) Determination of Interest Period. By giving notice as set forth in
Section 2.02(b) (with respect to a Borrowing of a Eurocurrency Rate Loan) or
Section 4.01(c) (with respect to a conversion into or continuation of a
Eurocurrency Rate Loan), the Company shall have the option, subject to the other
provisions of this Section 4.02, to select an interest period (each a
"Eurocurrency Interest Period") to apply to the
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Loans described in such notice, subject to the following provisions:
(i) Except as otherwise agreed pursuant to Section 4.01(a), the
Company may only select, as to a particular Borrowing of Eurocurrency Rate
Loans, a Eurocurrency Interest Period of either one, two, three or six
months in duration;
(ii) In the case of immediately successive Interest Periods applicable
to a Borrowing of Eurocurrency Rate Loans, each successive Interest Period
shall commence on the day on which the next preceding Eurocurrency Interest
Period expires;
(iv) If any Eurocurrency Interest Period would otherwise expire on a
day which is not a Business Day, such Eurocurrency Interest Period shall be
extended to expire on the next succeeding Business Day if the next
succeeding Business Day occurs in the same calendar month, and if there
shall be no succeeding Business Day in such calendar month, such
Eurocurrency Interest Period shall expire on the immediately preceding
Business Day;
(v) The Borrower may not select a Eurocurrency Interest Period as to
any Loan if such Interest Period terminates later than the Revolving Credit
Termination Date;
(vi) There shall be no more than fifteen (15) Eurocurrency Interest
Periods in effect at any one time.
(c) Determination of Interest Rate. As soon as practicable on the
second Business Day prior to the first day of each Eurocurrency Interest Period
(the "Eurocurrency Interest Rate Determination Date"), the Administrative Agent
shall determine (pursuant to the procedures set forth in the definition of
"Eurocurrency Rate") the interest rate which shall apply to Eurocurrency Rate
Loans, for which an interest rate is then being determined for the applicable
Eurocurrency Interest Period and shall promptly give notice thereof (in writing
or by telephone confirmed in writing) to the Borrower and to each Lender. The
Administrative Agent's determination shall be presumed to be correct, absent
manifest error, and shall be binding upon the Borrowers.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the event
that at least one (1) Business Day before the Eurocurrency Interest Rate
Determination Date:
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(i) the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by
reference to which the Eurocurrency Rate then being determined is to be
fixed;
(ii) the Requisite Lenders advise the Administrative Agent that
deposits in Dollars or in the applicable Alternative Currency in the
principal amounts of the Eurocurrency Rate Loans comprising such
Borrowing are not generally available in the London interbank market
for a period equal to such Eurocurrency Interest Period; or
(iii) the Requisite Lenders advise the Administrative Agent that
the Eurocurrency Rate, as the case may be, as determined by the
Administrative Agent, after taking into account the adjustments for
reserves and increased costs provided for in Section 4.01(f), will not
adequately and fairly reflect the cost to such Lenders of funding Loans
of such Type and in the currency in which such Loans are denominated;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon (until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist) the right of
the Borrower to elect to have Loans bear interest based upon the Eurocurrency
Rate shall be suspended and each outstanding Eurocurrency Rate Loan shall be
converted into a Base Rate Loan in Dollars (regardless of the currency of such
Loan) on the last day of the then current Interest Period therefor, and any
Notice of Borrowing for which Revolving Loans have not then been made that
requests a Loan of a Type that has been suspended shall be deemed to be a
request for Base Rate Loans in Dollars, notwithstanding any prior election by
the Borrower to the contrary.
(e) Illegality. (i) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurocurrency Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Governmental Authority (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful or would result in costs or penalties), then, and in any such event,
such Lender may give notice of that determination, in writing, to the Company
and the Administrative Agent, and the Administrative Agent shall promptly
transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section 4.02(e)(i), (A) the
Borrowers' right to request from such Lender and such Lender's obligation, if
any, to make Eurocurrency Rate
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Loans shall be immediately suspended, and such Lender shall make a Base Rate
Loan in Dollars as part of any requested Borrowing of Eurocurrency Rate Loans
and (B) if the affected Eurocurrency Loans are then outstanding, the Borrower
shall immediately, or if permitted by applicable law, no later than the date
permitted thereby, upon at least one (1) Business Day's prior written notice to
the Administrative Agent and the affected Lender, convert each such Loan into a
Base Rate Loan in Dollars (regardless of the currency of such Loan).
(iii) If at any time after a Lender gives notice under Section
4.02(e)(i) in respect of a Eurocurrency Rate Loan such Lender determines that it
may lawfully make Loans of such Type, such Lender shall promptly give notice of
that determination, in writing, to the Company and the Administrative Agent, and
the Administrative Agent shall promptly transmit the notice to each other
Lender. The Borrowers' right to request, and such Lender's obligation, if any,
to make Loans of such Type shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be paid by the
Borrowers pursuant to Section 4.01, the Borrowers shall compensate each Lender,
upon demand, for all losses, expenses and liabilities (including, without
limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Lender's Eurocurrency Rate Loans to the Borrowers but excluding
any loss of the Applicable Eurocurrency Rate Margin on the relevant Loans) which
that Lender may sustain (i) if for any reason (other than the gross negligence
or willful misconduct of a Lender or the Administrative Agent) a Borrowing,
conversion into or continuation of Eurocurrency Rate Loans does not occur on a
date specified therefor in a Notice of Borrowing or a Notice of
Conversion/Continuation given by the Company or in a telephonic request by it
for borrowing or conversion/continuation or a successive Interest Period does
not commence after notice therefor is given pursuant to Section 4.01(c), (ii) if
for any reason any Eurocurrency Rate Loan is prepaid (including, without
limitation, mandatorily pursuant to Section 3.01) on a date which is not the
last day of the applicable Interest Period, (iii) as a consequence of a required
conversion of a Eurocurrency Rate Loan to a Base Rate Loan as a result of any of
the events indicated in Section 4.02(e) or (iv) as a consequence of any failure
by any Borrower to repay Eurocurrency Rate Loans when required by the terms
hereof. The Lender making demand for such compensation shall deliver to the
Company concurrently with such demand a written statement in reasonable detail
as to such losses, expenses and liabilities, and this statement shall be
conclusive as to the amount of compensation due to that Lender, absent manifest
error.
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(g) Currency Exchanges. At any time Eurocurrency Rate Loans denominated
in an Alternative Currency are required to be converted to Base Rate Loans
pursuant to Sections 4.01(d) and (e) or otherwise, the Borrowers shall indemnify
the Lenders against any loss or liability arising out of or as a result of the
conversion of such Alternative Currency into Dollars and exchange costs and
taxes payable in connection with such conversion and the Borrower to which such
Loan was made shall forthwith on written demand therefor pay to the Agent, for
the benefit of the applicable Lenders, the amount of such loss, liability, costs
and taxes.
(h) Booking of Eurocurrency Rate Loans. Any Lender may make, carry or
transfer Eurocurrency Rate Loans at, to, or for the account of, its Eurocurrency
Lending Office or Eurocurrency Affiliate or its other offices or Affiliates. No
Lender shall be entitled, however, to receive any greater amount under Sections
3.03, 3.04, 4.01(f) or 4.02(f) as a result of the transfer of any such
Eurocurrency Rate Loan to any office (other than such Eurocurrency Lending
Office) or any Affiliate (other than such Eurocurrency Affiliate) than such
Lender would have been entitled to receive immediately prior thereto, unless (i)
the transfer occurred at a time when circumstances giving rise to the claim for
such greater amount did not exist and (ii) such claim would have arisen even if
such transfer had not occurred.
(i) Affiliates Not Obligated. No Eurocurrency Affiliate or other
Affiliate of any Lender shall be deemed a party hereto or shall have any
liability or obligation hereunder.
4.03. Fees. (a) Letter of Credit Fee. In addition to any charges paid
pursuant to Section 2.04(g), the Company shall pay to the Administrative Agent,
for the account of the Lenders and the Issuing Banks as provided in the
following sentence, with respect to any Letter of Credit issued by any Issuing
Bank, a fee per annum (the "Letter of Credit Fee") equal to the Applicable
Eurocurrency Rate Margin as of the date of each such payment on the undrawn face
amount of such Letter of Credit, payable in arrears on the first day of each
calendar month for the preceding calendar month. The Administrative Agent shall
pay to the Issuing Bank for its own account from the Letter of Credit Fee in
respect of any Letter of Credit issued by it in an amount equal to one-eighth
percent (0.125%) per annum on the undrawn face amount of such Letter of Credit,
and that the Administrative Agent shall pay the remainder of each such Letters
of Credit Fee to the Lenders in accordance with their respective Pro Rata
Shares.
(b) Unused Commitment Fee. The Company shall pay to the Administrative
Agent, for the account of the Lenders in accordance with their respective Pro
Rata Shares, a fee (the
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"Unused Commitment Fee"), accruing from the period beginning on the Effective
Date and ending on but not including the Revolving Credit Termination Date at
the Unused Commitment Fee Rate in effect from time to time on the average amount
by which the Revolving Credit Commitments exceed the Revolving Credit
Obligations for such period, the accrued portion of such fee being payable (A)
quarterly, in arrears, commencing on the last day of the quarter in which the
Effective Date occurs and (B) on the Revolving Credit Termination Date.
Notwithstanding the foregoing, in the event that any Lender fails to fund its
Pro Rata Share of any Loan requested by any Borrower which such Lender is
obligated to fund under the terms hereof, such Lender shall not be entitled to
any Unused Commitment Fees with respect to its Revolving Credit Commitment until
such failure has been cured in accordance with Section 3.02(b)(v)(B) and the
Company shall not be required to pay any Unused Commitment Fees to such Lender
or to the Administrative Agent for the account of such Lender for such period.
(c) Other Fees. The Company shall pay to the Administrative Agent such
other fees as the Company is obligated to pay pursuant to the Letter Agreement.
(d) Calculation and Payment of Fees. All of the above fees shall be
calculated on the basis of the actual number of days elapsed in a 365/366-day
year. All such fees shall be payable in addition to, and not in lieu of,
interest, expense reimbursements, indemnification and other Obligations. Fees
shall be payable to the Administrative Agent at its Applicable Payment Office in
accordance with Section 3.02. All fees shall be fully earned and nonrefundable
when paid. All fees specified or referred to herein due to the Administrative
Agent, either Co- Agent, any Issuing Bank or any Lender, including, without
limitation, those referred to in this Section 4.03, shall bear interest, if not
paid when due, at the interest rate for Loans in accordance with Section
4.01(d), shall constitute Obligations and shall be secured by the Collateral.
ARTICLE V
CONDITIONS TO LOANS AND LETTERS OF CREDIT
5.01. Conditions Precedent to the Effectiveness of this Agreement. This
Agreement shall become effective on the date (the "Effective Date") when the
following conditions precedent have been satisfied:
(a) Documents. The Administrative Agent (on behalf of itself and the
Lenders) shall have received on or before the Effective Date all of the
following:
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(i) this Agreement, the Notes and all other agreements, documents
and instruments described in the List of Closing Documents attached
hereto and made a part hereof as Exhibit E, each duly executed where
appropriate and in form and substance satisfactory to the Lenders and
in sufficient copies for each of the Lenders; without limiting the
foregoing, the Company hereby directs its counsel, Porter, Wright,
Xxxxxx & Xxxxxx, to prepare and deliver to the Administrative Agent,
the Co-Agents, the Lenders and the Issuing Banks, the opinion referred
to in such List of Closing Documents with respect to such counsel;
(ii) a pro forma estimated balance sheet of the Borrower and its
Subsidiaries as of the Effective Date, as referred to in Section
6.01(h) giving effect to the transactions contemplated in the Loan
Documents, the issuance of the Subordinated Notes and the consummation
of the Stock Repurchase; and
(iii) such additional documentation as the Administrative Agent or
either Co-Agent may reasonably request.
(b) Perfection of Liens. If not previously delivered in connection
with the Existing Credit Agreement, all certificates representing Capital Stock
included in the Collateral shall have been delivered to the Administrative Agent
(with duly executed stock powers, as appropriate) and all instruments included
in the Collateral shall have been delivered to the Administrative Agent (duly
endorsed to the Administrative Agent, as appropriate). If not previously filed
in connection with the Existing Credit Agreement, the Administrative Agent shall
have received UCC-1 Financing Statements duly executed that shall, when filed in
the appropriate jurisdictions, be sufficient to perfect Liens on all of the
Collateral, to the extent that such Liens may be perfected by the filing of
UCC-1 Financing Statements.
(c) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Administrative Agent shall
not have received any notice that any action, suit, investigation, litigation or
proceeding is pending or threatened in any court or before any arbitrator or
Governmental Authority which purports to (i) enjoin, prohibit, restrain or
otherwise affect (A) the making of the Loans on the Effective Date or (B) the
consummation of the transactions contemplated pursuant to the Loan Documents or
(ii) would be reasonably expected to have a Material Adverse Effect.
(d) No Change in Condition. No change in the condition (financial
or otherwise), business, performance,
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Properties, operations or prospects of the Borrower and its Subsidiaries taken
as whole shall have occurred since December 31, 1996, which change has had or is
reasonably likely to have a Material Adverse Effect (other than any such change
resulting from the consummation of the Rolodex Sale, the consummation of the
Stock Repurchase or the issuance of the Subordinated Notes).
(e) No Default. No Event of Default or Default shall have occurred
and be continuing or would result from the making of the Loans.
(f) Representations and Warranties. All of the representations and
warranties contained in Section 6.01 and in any of the other Loan Documents
shall be true and correct in all material respects on and as of the Effective
Date (other than representations and warranties which expressly speak as of a
different date), in each case both before and after giving effect to the funding
of the Loans.
(g) Fees and Expenses Paid. On the Effective Date there shall have
been paid to the Administrative Agent, for the account of the Lenders, the
Co-Agents and the Administrative Agent, for their respective individual
accounts, all fees (including, without limitation, the reasonable legal fees of
counsel to the Administrative Agent and local counsel to the Administrative
Agent for the benefit of the Lenders) due and payable on or before the Effective
Date (including, without limitation, all such fees described in the Letter
Agreement), and all expenses (including, without limitation, legal expenses) due
and payable on or before the Effective Date, in each case for which invoices
(containing, where appropriate, a description of all such fees and expenses)
have been provided to the Borrower.
(h) Effective Date. The Effective Date shall have occurred on or
before August 31, 1997.
(i) Consents, Etc. Except as set forth on Schedule 6.01-E, each of
the Borrowers and the Company's Subsidiaries shall have received all consents
and authorizations required pursuant to any material Contractual Obligation with
any other Person and shall have obtained all consents and authorizations of, and
effected all notices to and filings with, any Governmental Authority as may be
necessary to allow each of the Borrowers and the Company's Subsidiaries lawfully
(A) to execute, deliver and perform, in all material respects, their respective
obligations hereunder, under the other Loan Documents to which each of them is,
or shall be, a party and each other agreement or instrument to be executed and
delivered by each of them pursuant thereto or in connection therewith and (B) to
create and perfect the Liens on the Collateral to be owned by each of them in
the manner and for the purpose contemplated by the Loan Documents,
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except for Liens that cannot be created or perfected by filings with or notices
to a Governmental Authority. No such consent or authorization shall impose any
conditions upon the Company or any of its Subsidiaries that are not reasonably
acceptable to the Lenders.
(j) Repayment of Obligations under the Existing Credit Agreement.
On the Effective Date the Company shall have refinanced in full the outstanding
principal amount of the Term Loans, including any interest accrued thereon
through the Effective Date and all other interest, fees and expenses accrued
under the Existing Credit Agreement through the Effective Date whether or not
due and payable on the Effective Date.
5.02. Conditions Precedent to All Subsequent Revolving Loans, Swing
Loans and Letters of Credit. The obligation of each Lender to make any Revolving
Loan and of the Swing Loan Bank to make any Swing Loan, requested to be made by
it on any date after the Effective Date, and the agreement of each Issuing Bank
to Issue any Letter of Credit on any date after the Effective Date is subject to
the following conditions precedent as of each such date:
(a) Representations and Warranties. As of such date, both before
and after giving effect to the Loans to be made or the Letter of Credit to be
Issued on such date, all of the representations and warranties of the Company
and its Subsidiaries contained in Section 6.01 and in any other Loan Document
(other than representations and warranties which expressly speak as of a
different date) shall be true and correct in all material respects.
(b) No Default. No Event of Default or Default shall have occurred
and be continuing or would result from the making of the requested Loan or the
issuance of the requested Letter of Credit.
(c) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Administrative Agent shall
not have received from any Lender, the Swing Loan Bank or Issuing Bank, as the
case may be, notice that, in the reasonable judgment of such Person, any action,
suit, investigation, litigation or proceeding is pending or threatened in any
court or before any arbitrator or Governmental Authority which is likely to
enjoin, prohibit or restrain, or impose or result in the imposition of any
material adverse condition upon, (i) such Lender's making of the requested Loan
or participation in the requested Letter of Credit, (ii) the Swing Loan Bank's
making of the requested Swing Loan or (iii) such Issuing Bank's issuance of the
requested Letter of Credit.
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(d) No Material Adverse Change. No change shall have occurred in
the condition (financial or otherwise), business, performance, Properties,
operations or prospects of the Borrower and its Subsidiaries taken as a whole
since December 31, 1996 which has had or is reasonably likely to have a Material
Adverse Effect (other than any such change resulting from the consummation of
the Rolodex Sale, the consummation of the Stock Repurchase or the issuance of
the Subordinated Notes).
Each submission by the Company to the Administrative Agent of a Notice of
Borrowing with respect to a Revolving Loan or Swing Loan, each acceptance by the
applicable Borrower of the proceeds of each such Loan so made, each submission
by the Company to an Issuing Bank of a request for issuance of a Letter of
Credit and the issuance of such Letter of Credit, shall constitute a
representation and warranty by the Company as of the Funding Date in respect of
such Revolving Loan, as of the Swing Loan Funding Date in respect of such Swing
Loan, and as of the date of issuance of such Letter of Credit, that all the
conditions contained in this Section 5.02(a), (b) and (d) have been satisfied or
waived in accordance with Section 13.07.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the Borrowers. In order to
induce the Lenders and the Issuing Banks to enter into this Agreement and to
make the Loans and the other financial accommodations to the Borrowers and to
issue the Letters of Credit described herein, each Borrower represents and
warrants (only with respect to those representations and warranties set forth
below applicable to itself and its Subsidiaries) to each Lender, each Issuing
Bank, each Co-Agent and the Administrative Agent as of the Effective Date and
thereafter on each date as required by Section 5.02(a) that the following
statements are true and correct:
(a) Organization; Corporate Powers. Each of the Company and the
Company's Subsidiaries (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (ii) is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing has or is reasonably likely to have a Material Adverse Effect and
(iii) has all requisite corporate power and authority to own, operate and
encumber its Property and to conduct its business as presently conducted.
(b) Authority. (i) Each of the Company and the Company's
Subsidiaries has the requisite corporate power and
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authority to execute, deliver and perform each of the Loan Documents to which it
is a party.
(ii) The execution, delivery and performance, as the case may be,
of each of the Loan Documents which have been executed and to which any of the
Company or the Company's Subsidiaries is a party and the consummation of the
transactions contemplated thereby, have been duly approved by each of the boards
of directors and (to the extent required by law) the shareholders of the Company
and the Company's Subsidiaries, respectively, and such approvals have not been
rescinded, revoked or modified in any manner. No other corporate action or
proceedings on the part of the Company or the Company's Subsidiaries is
necessary to consummate such transactions.
(iii) Each of the Loan Documents to which the Company or the
Company's Subsidiaries is a party has been duly executed, or delivered on behalf
of the Company or the Company's Subsidiaries, as the case may be, and
constitutes its legal, valid and binding obligation, enforceable against such
Person in accordance with its terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the enforcement of creditors' rights and
remedies generally and general principles of equity), is in full force and
effect and no Default or Event of Default has occurred and is continuing.
(c) Subsidiaries; Ownership of Capital Stock. Schedule 6.01-C (i)
contains a diagram indicating the corporate structure of the Company, the
Company's Subsidiaries and any other Person in which the Company or any of the
Company's Subsidiaries holds an equity interest as of the Effective Date; and
(ii) accurately sets forth as of the Effective Date, (A) the correct legal name,
the jurisdiction of incorporation, and Employer Identification Number of each of
the Company and the Company's Subsidiaries, and the jurisdictions in which each
of the Company and the Company's Subsidiaries is qualified to transact business
as a foreign corporation, (B) the authorized, issued and outstanding shares of
each class of Capital Stock of the Company and each of the Company's
Subsidiaries and, with respect to the Company's Subsidiaries, the owners of such
shares and (C) a summary of the direct and indirect partnership, joint venture,
or other equity interests, if any, of the Company and each Subsidiary of the
Company in any Person that is not a corporation. Except as set forth in Schedule
6.01-C, none of the issued and outstanding Capital Stock of the Company or the
Company's Subsidiaries is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options outstanding with respect to such
Capital Stock. The outstanding Capital Stock of the Company and each of its
Subsidiaries is duly authorized, validly issued, fully paid and nonassessable
and the
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outstanding Capital Stock of the Company's Subsidiaries is not Margin Stock.
(d) No Conflict. The execution, delivery and performance of each of
the Loan Documents to which the Company or any of the Company's Subsidiaries is
a party do not and shall not (i) conflict with the Constituent Documents of the
Company or any such Subsidiary, (ii) except as set forth on Schedule 6.01-D,
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under any material Requirement of Law or any
material Contractual Obligation of the Company or any such Subsidiary, or
require the termination of any material Contractual Obligation, (iii) result in
or require the creation or imposition of any Lien whatsoever upon any of the
Property of the Company or any such Subsidiary, other than Liens contemplated by
the Loan Documents, or (iv) require any approval of the Company's or any such
Subsidiary's shareholders that has not been obtained.
(e) Governmental Consents, etc. Except as set forth on Schedule
6.01-E, the execution, delivery and performance of each of the Loan Documents to
which the Company or any of the Company's Subsidiaries is a party do not and
shall not require any registration with, consent or approval of, or notice to,
or other action to, with or by any Governmental Authority, except (i) filings,
consents or notices which have been made, obtained or given, or, in a timely
manner, shall be made, obtained, or given and (ii) filings necessary to perfect
security interests in the Collateral to the extent that such security interests
may be perfected by filings. None of the Company or any of the Company's
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur the Obligations or its ability to
consummate the transactions contemplated in the Loan Documents.
(f) Accommodation Obligations; Contingencies. Except as set forth
on Schedule 1.01.1, none of the Company or any of the Company's Subsidiaries has
any Accommodation Obligation, contingent liability or liability for any Taxes,
long-term lease or commitment, not reflected in its financial statements dated
December 31, 1996 delivered to the Administrative Agent or otherwise disclosed
to the Administrative Agent, the Co-Agents and the Lenders in the other
Schedules hereto, which has or is reasonably likely to have a Material Adverse
Effect, except as permitted pursuant to Section 9.01 or 9.05 hereof.
(g) Restricted Junior Payments. None of the Company or any of the
Company's Subsidiaries has directly or indirectly declared, ordered, paid or
made or set apart any sum or Property of the Company or such Subsidiary for any
Restricted Junior
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Payment or agreed to do so, except as permitted pursuant to Section 9.06 hereof.
(h) Financial Position. (i) The Company's pro forma estimated
balance sheet and the notes thereto referred to in Section 5.01(a)(ii) was
prepared in good faith and fairly presents on a pro forma basis (after giving
effect to the transactions contemplated herein) as of the Effective Date the
Company's consolidated financial condition, based on the information available
to the Company at the time so furnished.
(ii) The Company's Projections were prepared in good faith and are
based upon facts and assumptions that were reasonable in light of the then
current and foreseeable business conditions of the Company and represented
management's reasonable best estimate of the projected financial performance of
the Company and its Subsidiaries based on the information available to the
Company at the time so furnished.
(i) Litigation; Adverse Effects. Except as set forth in Schedule
6.01-I or as disclosed on Schedule 6.01-O, (A) there is no action, suit, audit,
proceeding, investigation or arbitration (or series of related actions, suits,
proceedings, investigations or arbitrations) before or by any Governmental
Authority or private arbitrator pending or, to the knowledge of the Borrowers,
threatened against the Company or any of the Company's Subsidiaries or any
Property of any of them (i) challenging the validity or the enforceability of
any of the Loan Documents or (ii) which has had or is reasonably likely to have
a Material Adverse Effect and (B) none of the Company or any of the Company's
Subsidiaries is (i) in violation of any applicable Requirements of Law which
violation has had or is reasonably likely to have a Material Adverse Effect, or
(ii) subject to or in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or regulation
of any court or Governmental Authority, in each case which has had or is
reasonably likely to have a Material Adverse Effect.
(j) No Material Adverse Change. Since December 31, 1996, there has
occurred no event which has had or is reasonably likely to have a Material
Adverse Effect (other than the consummation of the Rolodex Sale, the
consummation of the Stock Repurchase or the issuance of the Subordinated Notes).
(k) Payment of Taxes. Except as set forth in Schedule 6.01-K, all
tax returns and reports of each of the Company and the Company's Subsidiaries
required to be filed have been timely filed, and all taxes, assessments, fees
and other governmental charges thereupon and upon their respective Property,
income and franchises which are shown in such returns or reports to be due and
payable have been paid, other than such taxes, assessments,
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fees and other governmental charges (i) which are being contested in good faith
by the Company or such Subsidiary, as the case may be, by appropriate
proceedings diligently instituted and conducted and without danger of any
material risk to the Collateral and (ii) with respect to which a reserve or
other appropriate provision, if any, as is required in conformity with GAAP
shall have been made. The Company has no knowledge of any proposed tax
assessment against the Company or any of the Company's Subsidiaries that would
have or is reasonably likely to have a Material Adverse Effect.
(l) Performance. None of the Company or any of the Company's
Subsidiaries has received notice or has actual knowledge that (i) it is in
default in the performance, observance or fulfillment of any Contractual
Obligation applicable to it or (ii) any condition exists which, with the giving
of notice or the lapse of time or both, would constitute a default with respect
to any such Contractual Obligation; in each case, except where such default or
defaults, if any, would not have or are not reasonably likely to have a Material
Adverse Effect.
(m) Disclosure. The representations and warranties of each of the
Company and the Company's Subsidiaries contained in the Loan Documents, and all
schedules, certificates and documents delivered to the Administrative Agent, the
Co-Agents and the Lenders pursuant to the terms hereof and the other Loan
Documents do not contain any statement of a material fact untrue when made or
omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading when made.
(n) Requirements of Law. Each of the Company and the Company's
Subsidiaries is in compliance with all Requirements of Law applicable to it and
its business, in each case where the failure to so comply individually or in the
aggregate would have or is reasonably likely to have a Material Adverse Effect.
(o) Environmental Matters. Except as set forth in Schedule 6.01-O
and except for matters, conditions, operations and noncompliance which would not
have or be reasonably likely to have a Material Adverse Effect:
(A) the operations of the Company and the Company's Subsidiaries
comply in all material respects with all applicable Environmental,
Health or Safety Requirements of Law;
(B) the Company and each of the Company's Subsidiaries have
obtained or have taken appropriate steps, as required by Environmental,
Health or Safety Requirements of Law, to obtain all environmental,
health and safety Permits
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necessary for their respective operations, and all such Permits are in
good standing and each of the Company and each of the Company's
Subsidiaries are currently in compliance in all material respects with
all terms and conditions of such Permits;
(C) none of the Company or the Company's Subsidiaries or any of
their respective operations or present Property or, to the knowledge of
the Company or any of the Company's Subsidiaries, their past Property,
are subject to any judicial or administrative proceeding, order,
judgment, decree, or other agreement, or to the knowledge of the
Company or any of the Company's Subsidiaries, any investigation,
alleging or addressing (i) a material violation of any Environmental,
Health or Safety Requirement of Law; (ii) any Remedial Action; or (iii)
any material Claims or Liabilities and Costs arising from the Release
or threatened Release of a Contaminant into the environment nor has the
Company or the Company's Subsidiaries received any notice of the
foregoing;
(D) none of the Company or the Company's Subsidiaries is the owner
or operator of any Property which has any of the following:
(i) any past or present on-site generation, treatment,
recycling, storage or disposal of any hazardous waste, as that term
is defined under 40 C.F.R. Part 261 or any state equivalent;
(ii) any present or known past landfill, wastepile,
underground storage tank or surface impoundment;
(iii) any asbestos-containing material; or
(iv) any polychlorinated biphenyls (PCBs) used by the Company
or the Company's Subsidiaries in hydraulic oils, electrical
transformers or other Equipment of the Company or the Company's
Subsidiaries;
(E) no Environmental Lien has attached to any Property of the
Company or any of the Company's Subsidiaries;
(F) there have been no Releases of any Contaminants into the
environment in reportable quantities by the Company or the Company's
Subsidiaries;
(G) the Company and the Company's Subsidiaries have no material
contingent liability in connection with any Release or threatened
Release of any Contaminants into the environment;
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(H) to the knowledge of the Company, the Company and the Company's
Subsidiaries have not sent or directly arranged for the transport of
any waste to any site listed or proposed for listing on the National
Priorities List ("NPL") pursuant to CERCLA or on the Comprehensive
Environmental Response Compensation Liability Information System List
("CERCLIS"), or any similar state list;
(I) to the knowledge of the Company, none of the Company's or the
Company's Subsidiaries' present or past Property is listed or proposed
for listing on the NPL pursuant to CERCLA or on the CERCLIS or any
similar state list of sites that requires Remedial Action, and the
Company and the Company's Subsidiaries are presently unaware of any
conditions on such Property which would qualify such Property for
inclusion on any such list.
(J) none of the Company or the Company's Subsidiaries is subject to
any Environmental Property Transfer Act as a result of the transactions
contemplated by the Loan Documents or to the extent such acts are
applicable to any such Property upon which a Lien will be or has been
granted in connection with the transactions contemplated by the Loan
Documents, the Company has fully complied with the requirements of such
acts.
(p) ERISA Matters. Neither the Company nor any ERISA Affiliate
maintains or contributes to any Plan and its related trust, if applicable, other
than those listed on Schedule 6.01-P hereto. Each Plan and its related trust, if
applicable, which is intended to be qualified under Sections 401(a) and 501(a)
of the Internal Revenue Code as currently in effect received a favorable
determination letter from the IRS as to its qualified status, or such a letter
will be applied for with the IRS for the Plan and its related trust on or before
December 31, 1994. Except as disclosed in Schedule 6.01-P, neither Company nor
any ERISA Affiliate knows of any reason why such Plans or trusts are no longer
qualified or exempt following such determination by the IRS. Except as disclosed
in Schedule 6.01-P, neither the Company nor any of its Subsidiaries maintains or
contributes to any employee welfare benefit plan within the meaning of Section
3(l) of ERISA which provides benefits to employees after termination of
employment other than as required by Section 601 of ERISA. Except as disclosed
in Schedule 6.01-P the Company and all of its ERISA Affiliates are in compliance
with the responsibilities, obligations or duties imposed on them by ERISA, the
Internal Revenue Code and regulations promulgated thereunder with respect to all
Plans, except where the failure to so comply individually or in the aggregate
would have or is reasonably likely to have a Material Adverse Effect. No Benefit
Plan has incurred any accumulated funding deficiency (as defined in Sections
302(a)(2) of ERISA and 412(a) of the Internal Revenue Code) whether or not
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waived. Except as disclosed in Schedule 6.01-P, neither the Company nor any
ERISA Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan
(i) has engaged in a nonexempt prohibited transaction described in Sections 406
of ERISA or 4975 of the Internal Revenue Code, which prohibited transaction has
had or is reasonably likely to have a Material Adverse Effect or (ii) has taken
or failed to take any action which would constitute or result in a Termination
Event. Neither the Company nor any ERISA Affiliate has any liability under
Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA with respect to a Benefit
Plan. Neither the Company nor any ERISA Affiliate has incurred any liability to
the PBGC which remains outstanding other than the payment of premiums, and there
are no premium payments which have become due which are unpaid. Schedule B to
the most recent annual report filed with the IRS with respect to each Benefit
Plan and furnished to the Administrative Agent is complete and accurate in all
material respects. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the
Benefit Plan relating to such Schedule B. Neither the Company nor any ERISA
Affiliate has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan. Neither the Company nor any
ERISA Affiliate has failed to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due date
for such installment or other payment. Neither the Company nor any ERISA
Affiliate is required to provide security to a Benefit Plan under Section
401(a)(29) of the Internal Revenue Code due to a Plan amendment that results in
an increase in current liability for the plan year. The Company has made
available to the Administrative Agent copies of all of the following: each
Benefit Plan and related trust agreement (including all amendments to such Plan
and trust) in existence, or for which the Company or any ERISA Affiliate has
taken any corporate action to authorize the adoption thereof, as of the
Effective Date and in respect of which the Company or any ERISA Affiliate is
currently an "employer" as defined in section 3(5) of ERISA, and the most recent
summary plan description, actuarial report, determination letter issued by the
IRS and Form 5500 filed in respect of each such Benefit Plan in existence; a
listing of all of the Multiemployer Plans currently contributed to by the
Company or any ERISA Affiliate with the aggregate amount of the most recent
annual contributions required to be made by the Company and all ERISA Affiliates
to each such Multiemployer Plan, any information which has been provided to the
Company or an ERISA Affiliate regarding withdrawal liability under any
Multiemployer Plan and the collective bargaining agreement pursuant to which
such contribution is required to be made; each employee welfare benefit plan
within the meaning of Section 3(l) of ERISA which provides benefits to employees
of the Company or any of its Subsidiaries after termination of
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employment other than as required by Section 601 of ERISA, the most recent
summary plan description for such plan and the aggregate amount of the most
recent annual payments made to terminated employees under each such plan.
(q) Foreign Employee Benefit Matters. Each Foreign Employee Benefit
Plan is in compliance with all Requirements of Laws applicable thereto and the
respective requirements of the governing documents for such Plan, except where
the failure to so comply individually or in the aggregate would not have or be
reasonably likely to have a Material Adverse Effect. With respect to any Foreign
Employee Benefit Plan maintained by the Company, any of its subsidiaries or any
ERISA Affiliate, reasonable reserves have been established in accordance with
prudent business practice or where required by ordinary accounting practices in
the jurisdiction in which such Plan is maintained. No such plan has aggregate
unfunded liabilities, after giving effect to any reserves for such liabilities,
which have or are reasonably likely to have a Material Adverse Effect. There are
no actions, suits or claims pending or, to the knowledge of the Borrowers or any
of the Subsidiary Guarantors, threatened against the Company, any of its
Subsidiaries or any ERISA Affiliate with respect to any Foreign Employee Benefit
Plan which have had or are reasonably likely to have a Material Adverse Effect.
(r) Labor Matters. Except as set forth in Schedule 6.01-R, as of
the Effective Date there is no collective bargaining agreement covering any of
the employees of the Company or any Subsidiary of the Company.
(s) Securities Activities. None of the Company or any of the
Company's Subsidiaries is engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
(t) Solvency. After giving effect to the transactions contemplated
in the Loan Documents (including, without limitation, the issuance of the
Subordinated Notes and the consummation of the Stock Repurchase) and the Loans
to be made on the Effective Date or such other date as Loans requested hereunder
are made and the disbursement of the proceeds of such Loans pursuant to the
Company's instructions, each of the Borrowers and the Subsidiary Guarantors is
Solvent.
(u) Patents, Trademarks, Permits, Etc.; Government Approvals. (i)
The Company and each of the Company's Subsidiaries own, are licensed or
otherwise have the lawful right to use, or have all permits and other
governmental approvals, patents, trademarks, trade names, copyrights,
technology, know-how and processes used in or necessary for the conduct of their
businesses as currently conducted except where the failure to do
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so would not have or be reasonably likely to have a Material Adverse Effect.
Except as set forth on Schedule 6.01-U, no claims are pending or, to the best of
Company's knowledge, threatened in writing that the Company or any of its
Subsidiaries is infringing upon the rights of any Person with respect to such
permits and other governmental approvals, patents, trademarks, trade names,
copyrights, technology, know-how and processes, except for such claims which
would not have or are not reasonably likely to have a Material Adverse Effect.
(ii) Except for Liens granted to the Administrative Agent for
the benefit of the Administrative Agent, the Co-Agents, the Issuing Banks and
the Lenders, the transactions contemplated by the Loan Documents shall not
impair the ownership of or rights under (or the license or other right to use,
as the case may be) any permits and governmental approvals, patents, trademarks,
trade names, copyrights, technology, know-how or processes by the Company or any
of the Company's Subsidiaries in any manner which would have or is reasonably
likely to have a Material Adverse Effect.
(v) Properties. Each of the Company and the Company's Subsidiaries
has good, and in the case of Real Property, indefeasible title to all of its
Property (tangible and intangible) owned by it or a valid leasehold interest in
all of its leased Property (except insofar as indefeasibility may be limited by
any laws or regulations of any Governmental Authority affecting such Property),
and all such Property is free and clear of all Liens, except Liens securing the
Obligations and Liens permitted under Section 9.03. Schedule 6.01-V contains a
true and complete list of all of the Real Property owned in fee simple by each
of the Company and the Company's Domestic Subsidiaries as of the Effective Date
with a book value in excess of $500,000, and a true and complete list of all
Leases in effect on the Effective Date which, pursuant to the terms thereof,
have annual rental payments in excess of $750,000. Substantially all of the
assets and Property owned by or leased to the Company and each such Subsidiary
and being used by the Company or each such Subsidiary are in adequate operating
condition and repair, reasonable and ordinary wear and tear excepted, and are
free and clear of any known defects except such defects that do not
substantially interfere with the continued use thereof in the conduct of normal
operations of the Company or such Subsidiaries. Except for Liens granted to the
Administrative Agent neither this Agreement nor any other Loan Document, nor any
transaction contemplated herein or therein, shall affect any right, title or
interest of the Company or any such Subsidiary in and to any of such Properties
in a manner that has or is reasonably likely to have a Material Adverse Effect.
(w) Insurance. Schedule 6.01-W accurately sets forth as of June 30,
1997 all insurance policies and programs
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(including self-insurance programs) currently in effect with respect to the
respective Properties and business of the Company and its Subsidiaries,
specifying for each such policy and program, (i) the amount thereof, (ii) the
risks insured against thereby, (iii) the name of the insurer, if any, and each
insured party thereunder, (iv) the policy or other identification number
thereof, (v) the expiration date thereof and (vi) the annual premium, if any,
with respect thereto. Such insurance policies and programs are, except as
disclosed on Schedule 6.01-W, in amounts sufficient to cover the replacement
value of the respective Properties of the Company and its Subsidiaries in excess
of deductible amounts.
(x) Pledge of Collateral. The grant and perfection of the security
interests in the Capital Stock of each of the Company's Subsidiaries
constituting a portion of the Collateral for the benefit of the Administrative
Agent, the Co-Agents, the Issuing Banks, the Lenders and the other Holders, as
contemplated by the terms of the Loan Documents, are not made in violation of
the registration provisions of the Securities Act, any applicable provisions of
other federal securities laws, state securities or "Blue Sky" law, foreign
securities law, or applicable general corporation law or in violation of any
other Requirement of Law.
(y) Transactions with Affiliates. Schedule 6.01-Y lists as of the
Effective Date each existing material agreement and arrangement that is in
effect on the Effective Date that any of the Company or the Company's
Subsidiaries has entered into with any of their respective Affiliates. The
Administrative Agent shall have the right to request a true, accurate and
complete copy of each existing written agreement or arrangement set forth on
Schedule 6.01-Y and a true, accurate and complete description of each existing
or proposed agreement or arrangement set forth in Schedule 6.01-Y that is not in
writing.
(z) Bank Accounts. Schedule 6.01-Z sets forth at the Effective Date
(i) all of the Company's and the Subsidiary Guarantors' Collection Account Banks
as of the Effective Date and (ii) all other banks where funds are from time to
time deposited, including the Lockboxes, their addresses and the relevant
account numbers.
(aa) Subordinated Notes. The Subordinated Note Indenture, when
executed, has been duly executed and delivered on behalf of the Company and
constitutes its legal, valid and binding obligation, enforceable against the
Company in accordance with its terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium and other law
affecting creditors' rights generally, and to general principles of equity, is
in full force and effect. No material term or condition in the Subordinated Note
Indenture has been amended, modified or waived from the form of such indenture
approved in
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writing by the Lenders, except as permitted under Section 9.16. The Company has
performed and complied in all material respects with all the terms, provisions,
agreements and conditions set forth in the Subordinated Note Indenture and
required to be performed or complied with by the Company and no default, event
of default or breach of any covenant by any such party exists thereunder. The
Subordinated Notes, when issued, have been duly issued in accordance with the
terms of the Subordinated Note Indenture and are subordinated to the
Obligations.
ARTICLE VII
REPORTING COVENANTS
The Company covenants and agrees that so long as any Revolving
Credit Commitment is outstanding and thereafter until payment in full of all of
the Obligations, unless the Requisite Lenders shall otherwise give prior written
consent thereto or shall have waived compliance:
7.01. Financial Statements. The Company shall maintain, and shall
cause each of the Company's Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated and consolidating financial statements on a
business unit basis and proper books of records and account and each of the
financial statements described below shall be prepared from such system and
records. The Company shall deliver or cause to be delivered to the
Administrative Agent, with sufficient copies for the Lenders, each of the
following within the time periods set forth below (which upon the written
consent of the Administrative Agent may be extended for up to fifteen (15)
additional days):
(a) Monthly Reports. Within thirty (30) days after the end of each
fiscal month in each Fiscal Year, a "Flash Report" substantially in the form of
Exhibit G.
(b) Quarterly Reports. Within fifty (50) days after the end of each
of the first three fiscal quarters of each Fiscal Year, the consolidated and
consolidating balance sheets of the Company and its Subsidiaries and divisions
by business unit as at the end of such period and the related consolidated and
consolidating statements of income and cash flow of the Company and its
Subsidiaries and divisions by business unit (in respect of the consolidating
cash flow statements, in the format customarily prepared by the Company for
internal reporting purposes) for such fiscal quarter and for the period from the
beginning of the then current Fiscal Year to the end of such fiscal quarter, and
for the corresponding period during the previous Fiscal Year, all certified by
the chief financial officer, treasurer or controller of the Company as fairly
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(subject to normal year end adjustments) presenting in all material respects the
consolidated and consolidating financial position of the Company and its
Subsidiaries and divisions by business unit as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP.
(c) Annual Reports. Within ninety-five (95) days after the end of
each Fiscal Year, (i) audited consolidated financial statements of the Company
and its Subsidiaries certified by KPMG Peat Marwick or other independent
certified public accountants of recognized national standing reasonably
acceptable to the Co-Agents, which report shall be certified without
qualification or modification as to scope of audit and as to the Company being a
going concern and shall state that such financial statements fairly present in
all material respects the consolidated financial position of the Company and its
Subsidiaries at the dates indicated and the results of their operations and cash
flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except for changes with which such independent
certified public accountants shall concur and which shall have been disclosed in
the notes to the financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards and (ii) annual
consolidating financial statements of the Company and its Subsidiaries and
divisions, by business unit, prepared by the Company.
(d) Officer's Certificate. Together with each delivery of any
financial statement pursuant to paragraphs (b) and (c) of this Section 7.01, an
Officer's Certificate of the Company substantially in the form of Exhibit F (the
"Compliance Certificate"), signed by the Company's chief financial officer,
treasurer or controller and setting forth calculations for the period then
ended, if applicable, for the Leverage Ratio (for purposes of determining the
Applicable Base Rate Margin, the Applicable Eurocurrency Rate Margin and the
Unused Commitment Fee Rate), Section 3.01(b) (including, without limitation,
calculations of Net Cash Proceeds and mandatory prepayments and commitment
reductions), the negative covenants of Article IX and the financial covenants of
Article X (including, without limitation, calculations made to reflect changes
in GAAP from GAAP in effect on the Effective Date).
(e) Business Plans; Financial Projections. Within (x) 10 Business
Days prior to the end of each Fiscal Year, a preliminary draft of each of the
following, and (y) 55 days after the end of each Fiscal year, each of the
following:
(i) a consolidated annual budget (in the format customarily
utilized by the Company for making financial
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projections) of the Company and its Subsidiaries for the succeeding
Fiscal Year, displaying on a quarterly basis anticipated balance
sheets, and on a monthly and quarterly basis forecasted revenues,
operating income and cash flow, all for each business unit of the
Company and its Subsidiaries and
(ii) a forecast (in the format customarily utilized by the Company
for making financial projections) of balance sheets, income statements
and cash flow statements of the Company and its Subsidiaries on a
consolidated basis for each fiscal month in such Fiscal Year and on an
annual basis and for each business unit of the Company and its
Subsidiaries for each of the next succeeding Fiscal Years up to and
including the Fiscal Year during which it is anticipated that the
Obligations will be paid in full;
(f) Accountant's Statement. Together with each delivery of the
financial statements referred to in Section 7.01(c), a written statement of KPMG
Peat Marwick or another firm of independent certified public accountants of
recognized national standing acceptable to the Co-Agents giving the report
stating (i) that their audit examination has included a review of the terms
hereof as it relates to accounting matters and (ii) whether, in connection with
their audit examination, any condition or event which constitutes an Event of
Default or Default has come to their attention, and if such condition or event
has come to their attention, specifying the nature and period of existence
thereof. The statement referred to above shall be accompanied by a copy of the
management letter or any similar report delivered to the Company or to any
officer or employee thereof by such accountants in connection with such
financial statements. Upon prior notice to the Company and, at the Company's
option, in the Company's presence, the Company shall authorize Administrative
Agent, each Co-Agent and each Lender to communicate directly with such
accountants.
7.02. Notice of Events of Default. Within five (5) Business Days
after any of the chief executive officer, chief operating officer, chief
financial officer, treasurer or controller of the Company (i) obtains knowledge
of any condition or event which constitutes an Event of Default or Default, or
receives notice from any Lender, any Issuing Bank, either Co- Agent or the
Administrative Agent with respect to a claimed Event of Default or Default, (ii)
obtains knowledge that any Person has given any written notice to the Company or
any Domestic Subsidiary or taken any other action with respect to a claimed
default or event or condition of the Type referred to in Section 11.01(e) or
(iii) obtains knowledge of any condition or event which has or is reasonably
likely to have a Material Adverse Effect, the Company shall deliver to the
Administrative Agent an Officer's Certificate specifying (A) the nature and
period of
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existence of any such claimed default, Event of Default, Default, condition or
event, (B) the notice given or action taken by such Person in connection
therewith, and (C) the remedial action the Company has taken, is taking or
proposes to take with respect thereto.
7.03. Lawsuits. (i) Within twenty (20) Business Days after the
Company obtains knowledge of the institution of, or written threat of, any
action, suit, proceeding, governmental investigation or arbitration against or
affecting the Company or any of the Company's Subsidiaries or any Property of
the Company or any of the Company's Subsidiaries not previously disclosed
pursuant to Section 6.01(i), which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose, in the Company's reasonable
judgment, the Company or any of the Company's Subsidiaries to liability in an
amount aggregating $10,000,000 or more, the Company shall give written notice
thereof to the Administrative Agent and provide such other information as may be
reasonably available to enable the Administrative Agent and its counsel to
evaluate such matters; and (ii) in addition to the requirements set forth in
clause (i) of this Section 7.03, the Company upon request of the Administrative
Agent shall as soon as practicable give to the Administrative Agent written
notice of the status of any action, suit, proceeding, governmental investigation
or arbitration covered by a report delivered pursuant to clause (i) above and
provide such other information as may be reasonably available to it to enable
the Administrative Agent and its counsel to evaluate such matters.
7.04. Insurance. Within ninety (90) days (or, upon the written
consent of the Administrative Agent, up to an additional fifteen (15) days)
after the end of each Fiscal Year ending after the Effective Date, the Company
shall deliver to the Administrative Agent (i) a report in form and substance
satisfactory to the Administrative Agent, the Co-Agents and the Lenders
outlining all material insurance coverage (including any self-insurance provided
by the Company) maintained as of the date of such report by the Company and its
Subsidiaries and the duration of such coverage and (ii) to the extent such
insurance coverage is not provided by the Company, an insurance broker's
statement that all premiums then due and payable with respect to such coverage
have been paid.
7.05. ERISA Notices. The Company shall deliver or cause to be
delivered to the Administrative Agent, at the Company's expense, the following
information and notices within twenty (20) Business Days after:
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(i) the Company or any ERISA Affiliate knows or has reason to know
after diligent inquiry that a Termination Event has occurred, a written
statement of the chief financial officer of the Company describing such
Termination Event and the action, if any, which the Company or any
ERISA Affiliate has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto;
(ii) the Company or any ERISA Affiliate knows or has reason to know
after diligent inquiry that a prohibited transaction (defined in
Sections 406 of ERISA and 4975 of the Internal Revenue Code) has
occurred, a statement of the chief financial officer of the Company
describing such transaction and the action which the Company or any
ERISA Affiliate has taken, is taking or proposes to take with respect
thereto;
(iii) the filing thereof with the DOL, IRS or PBGC, copies of each
annual report (form 5500 series), including Schedule B thereto, filed
with respect to each Benefit Plan;
(iv) receipt by the Company or any ERISA Affiliate of each
actuarial report for any Benefit Plan or Multiemployer Plan and each
annual report for any Multiemployer Plan, copies of each such report;
(v) the filing thereof with the IRS, a copy of each funding waiver
request filed with respect to any Benefit Plan and all communications
received by the Company or any ERISA Affiliate with respect to such
request;
(vi) the occurrence thereof, notification of any material increase
in the benefits of any existing Plan or the establishment of any new
Plan (excluding supplemental employee retirement plans which are not
material) or the commencement of contributions to any Plan (excluding
supplemental employee retirement plans which are not material) to which
the Company or any ERISA Affiliate was not previously contributing;
(vii) receipt by the Company or any ERISA Affiliate of the PBGC's
intention to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;
(viii) receipt by the Company or any ERISA Affiliate of any
unfavorable determination letter from the IRS regarding the
qualification of a Plan under Section 401(a) of the Internal Revenue
Code, copies of each such letter;
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(ix) receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan regarding the imposition of withdrawal liability,
copies of each such notice;
(x) the Company or any ERISA Affiliate fails to make a required
installment or any other required payment under Section 412 of the
Internal Revenue Code on or before the due date for such installment or
payment, a notification of such failure;
(xi) the Company or any ERISA Affiliate knows or has reason to know
after diligent inquiry (a) a Multiemployer Plan has been terminated,
(b) the administrator or plan sponsor of a Multiemployer Plan intends
to terminate a Multiemployer Plan, or (c) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan; and
(xii) receipt by the Company of a written notice from the
Administrative Agent, copies of any Foreign Employee Benefit Plan and
related documents, reports and correspondence as requested by the
Administrative Agent in such notice.
For purposes of clause (i) of this Section 7.05, the Company and any ERISA
Affiliate shall be deemed to know all facts known by the administrator of any
Plan of which the Company or any ERISA Affiliate is the plan sponsor.
7.06. Environmental Notices. (a) The Company shall
notify the Administrative Agent in writing, within twenty (20)
Business Days after the Company learns thereof, of any of the
following:
(i) written notice or claim by a Governmental Authority or any
third party to the effect that the Company or any of the Company's
Subsidiaries is or may be liable to any Person, or is subject to an
investigation by a Governmental Authority, relating to a material
Release or threatened material Release of any Contaminant into the
environment;
(ii) written notice that any Property of the Company or any of the
Company's Subsidiaries is subject to an Environmental Lien;
(iii) commencement or written threat of any judicial or
administrative proceeding alleging a material violation by the Company
or any of the Company's Subsidiaries of any Environmental, Health or
Safety Requirement of Law;
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(iv) new and material changes to any existing Environmental, Health
or Safety Requirement of Law that would reasonably be expected to have
a Material Adverse Effect; or
(v) any intent to execute an agreement, letter of intent or
commitment to acquire stock, Property, or to lease Real Property, or to
take any other action by the Company or any of its Subsidiaries that
would subject the Company or any of the Company's Subsidiaries to
environmental, health or safety Liabilities and Costs that would
reasonably be expected to have a Material Adverse Effect.
(b) The Company shall notify the Administrative Agent, in writing,
within 20 Business Days after any filing or report made by the Company or any of
its Subsidiaries with any Governmental Authority with respect to (i) the
material violation of any Environmental, Health or Safety Requirement of Law,
(ii) any material unpermitted Release or threatened Release of a Contaminant or
(iii) any material unsafe or unhealthful condition at any Property of the
Company or its Subsidiaries;
(c) Within ninety (90) days (or, upon the written request of the
Administrative Agent, up to an additional fifteen (15) days) after the end of
each calendar year, commencing at the end of Fiscal Year 1997, the Company shall
submit to the Administrative Agent a report prepared by the appropriate officers
of the Company summarizing the status of any environmental, health or safety
non-compliance, hazard or liability issues identified in notices required
pursuant to Section 7.06(a), disclosed on Schedule 6.01-O or identified in any
notice or report required herein.
7.07. Labor Matters. The Company shall notify the
Administrative Agent in writing, promptly after the Company knows of, of (i) any
material labor dispute to which the Company or any of its Subsidiaries is or is
reasonably likely to become a party, including, without limitation, any strikes,
lockouts or other disputes relating to such Persons' plants and other facilities
and (ii) any material liability related to Worker Adjustment and Retraining
Notification Act or related liability incurred with respect to the closing of
any plant or other facility of such Persons.
7.08. Public Filings and Reports. Promptly upon the filing
thereof with the Securities and Exchange Commission or the mailing thereof to
the public shareholders or debtholders of the Company generally, the Company
shall deliver to the Administrative Agent, with copies sufficient for each of
the Lenders, copies of all filings or reports made in connection with
outstanding Indebtedness and Capital Stock of the Company other than amendments
to this Agreement and any amendments to
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management contracts, compensatory plans or other plans in which directors or
officers of the Company or its Subsidiaries participate, which filings shall be
delivered to the Administrative Agent, with copies sufficient for each of the
Lenders, promptly upon the request of the Administrative Agent.
7.09. Bank Accounts. The Company shall, together with the financial
statements delivered pursuant to Section 7.01(c), (a) notify the Administrative
Agent in writing of all additions, subtractions and modifications to the
Company's and the Subsidiary Guarantor's Collection Accounts with banks other
than the Collection Account Banks listed on Schedule 6.01-Z, and (b) deliver to
the Administrative Agent a list of all banks (other than Collection Account
Banks) where funds of the Company and the Subsidiary Guarantors are from time to
time deposited, including the Lockboxes, their addresses and the relevant
account numbers.
7.10. Other Information. As soon as reasonably practical after
receipt of a request therefor from the Administrative Agent, the Company shall
prepare and deliver to the Administrative Agent such other information with
respect to the Company, any of the Company's Subsidiaries or the Collateral
including, without limitation, schedules identifying and describing the
Collateral and any dispositions thereof, as from time to time may be reasonably
requested by the Administrative Agent.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Each of the Borrowers covenants and agrees (with respect to those
covenants set forth below applicable to itself and its Subsidiaries) that so
long as any Revolving Credit Commitment is outstanding and thereafter until
payment in full of all of the Obligations, unless the Requisite Lenders shall
otherwise give prior written consent or shall have waived compliance:
8.01. Corporate Existence, Etc. (a) The Company shall, and shall
cause each Subsidiary Guarantor to, at all times maintain its corporate
existence and preserve and keep, or cause to be preserved and kept, in full
force and effect its rights and franchises material to their respective
businesses;
(b) The Company shall cause each Non-Guarantor Domestic Subsidiary
at all times to maintain its respective corporate existence and preserve and
keep, or cause to be preserved and kept, in full force and effect its rights and
franchises material to its respective business, except where the Board of
Directors of such Non-Guarantor Domestic Subsidiary determines that the
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maintenance or preservation of its business is not in the best
interest of the Company or such Non-Guarantor Domestic
Subsidiary;
(c) Each Foreign Borrower shall, and the Company shall cause each
Foreign Subsidiary at all times to, maintain its respective corporate existence
and preserve and keep, or cause to be preserved and kept, in full force and
effect its respective rights and franchises material to its business;
except in each instance described in clauses (a) through (c) above, where the
failure to so maintain or preserve would not have or be reasonably likely to
have a Material Adverse Effect.
8.02. Corporate Powers; Conduct of Business, Etc. The Company
shall, and shall cause each of its Subsidiaries to, qualify and remain qualified
to do business in each jurisdiction in which the nature of its business requires
it to be so qualified except where the failure to be so qualified would not have
or be reasonably likely to have a Material Adverse Effect.
8.03. Compliance with Laws, Etc. The Company shall, and shall cause
each of its respective Subsidiaries to, (a) comply with all Requirements of Law
and all restrictive covenants affecting such Person or the business, Property,
assets or operations of such Person, and (b) obtain as needed all Permits
necessary for such Person's operations and maintain such Permits in good
standing, except, in the case of (a) and (b) above, where the failure to do so
would not have or be reasonably likely to have a Material Adverse Effect.
8.04. Payment of Taxes and Claims; Tax Consolidation. The Company
shall, and shall cause each of its Subsidiaries to, pay (a) all taxes,
assessments and other governmental charges imposed upon it or on any of its
Property or assets or in respect of any of its franchises, business, income or
Property before any penalty or interest for late payment (except as such penalty
or interest relates to underpayment of estimated tax payments) accrues thereon,
and (b) all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums which have become due and payable and which by
law have or may become a Lien (other than a Lien permitted by Section 9.03) upon
any of the Company's or such Subsidiary's Property, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided, however, that
no such taxes, assessments and governmental charges referred to in clause (a)
above or claims referred to in clause (b) above are required to be paid if being
contested in good faith by the Company or such Subsidiary, as the case may be,
by appropriate proceedings diligently instituted and conducted and without
danger of any material risk to the Collateral and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
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shall have been made therefor; provided, further, however, to the extent there
exists any unpaid taxes resulting from the failure to file the tax returns
referred to in Schedule 6.01-K, the Company shall use its best efforts to
satisfy such tax obligations as soon as practicable after the Effective Date.
The Company shall not and shall not permit any Subsidiary of the Company to,
file or consent to the filing of any consolidated income tax return with any
Person (other than the Company and its Subsidiaries).
8.05. Insurance. The Company shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain, in full force
and effect the insurance policies and programs listed on Schedule 6.01-W or
substantially similar policies and programs or other policies and programs as
are acceptable to the Administrative Agent. Each certificate and policy relating
to Property damage and boiler and machinery insurance shall contain an
endorsement, in form and substance acceptable to the Administrative Agent,
showing loss payable to the Administrative Agent, for the benefit of the
Administrative Agent, the Co-Agents, the Issuing Banks and the Lenders and
naming the Administrative Agent as an additional insured under such policy and
providing that no act, whether willful or negligent, or default of the Company,
any of its Subsidiaries or any other Person shall affect the right of the
Administrative Agent to recover under such policy or policies of insurance in
case of loss or damage. Each certificate and policy relating to coverages other
than the foregoing shall contain an endorsement naming the Administrative Agent
as an additional insured under such policy. Such endorsement or an independent
instrument furnished to the Administrative Agent shall provide that the
insurance companies shall give the Administrative Agent at least thirty (30)
days' written notice before any such policy or policies of insurance shall be
cancelled or altered adversely to the interests of the Administrative Agent, the
Co-Agents, the Issuing Banks and the Lenders. In the event that the Company or
any of its Subsidiaries, at any time or times hereafter, shall fail to obtain or
maintain any of the policies or insurance required herein or to pay any premium
in whole or in part relating thereto, then the Administrative Agent, without
waiving or releasing any obligations or resulting Event of Default hereunder,
may at any time or times thereafter (but shall be under no obligation to do so)
obtain and maintain such policies of insurance and pay such premiums and take
any other action with respect thereto which the Administrative Agent deems
advisable. All sums so disbursed by the Administrative Agent shall constitute
Protective Advances and be part of the Obligations, payable as provided herein.
8.06. Inspection of Property; Books and Records; Discussions. The
Company shall permit, and shall cause each of its Subsidiaries to permit, any
authorized representative(s)
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designated by the Administrative Agent or any Lender to visit and inspect any of
the Properties of such Person, to examine, audit, check and make copies of their
respective financial and accounting records, books, journals, orders, receipts
and any correspondence and other data relating to their respective businesses or
the transactions contemplated hereby and by the Loan Documents (including, in
connection with environmental compliance, hazard or liability) (in each case,
except such documents and data required to be maintained as confidential or such
documents as contain privileged or legally protected communications), and to
discuss their affairs, finances and accounts with their officers and, in the
presence of the Company or such Subsidiary, their independent certified public
accountants, all of the foregoing upon reasonable notice and at such times
during normal business hours, as often as may be reasonably requested. All
reasonable costs and expenses incurred by the Administrative Agent or, after the
occurrence and during the continuance of any Event of Default, any Lender, in
each case as a result of such inspection, audit or examination conducted
pursuant to this Section 8.06 shall be paid by the Company.
8.07. Insurance and Condemnation Proceeds. The Company hereby
directs (and, if applicable, shall cause its Domestic Subsidiaries to direct)
all insurers under policies of Property damage and boiler and machinery
insurance and payors of any condemnation claim or award relating to the Property
of the Company and its Domestic Subsidiaries to pay all proceeds payable under
such policies or with respect to such claim or award for any loss directly to
the Administrative Agent, for the benefit of the Administrative Agent, the
Co-Agents, the Issuing Banks, the Lenders and the other Holders, except to the
extent such proceeds, claims or awards are required to be paid to alternate loss
payees pursuant to the terms of any purchase money Indebtedness or Capital Lease
permitted under Section 9.01(vi) or any Operating Lease permitted hereunder, in
each case solely with respect to the Property covered by such Indebtedness,
Capital Lease or Operating Lease; and in no case to the Company or one or more
of its Subsidiaries. The Administrative Agent shall, upon receipt of such
proceeds and at the Company's direction, either apply the same to the principal
amount of the Revolving Loans outstanding at the time of such receipt and create
a corresponding reserve against Revolving Credit Availability in an amount equal
to such application (the "Decision Reserve") or hold such proceeds as Cash
Collateral for the Obligations; provided, however, claims and awards not in
excess of $5,000,000 per occurrence or (series of related occurrences) shall be
remitted to the Company within a reasonable time following the Administrative
Agent's receipt thereof. For up to 180 days after the date of any loss (the
"Decision Period"), the Company may notify the Administrative Agent that it
intends to restore, rebuild or replace the Property subject to the receipt of
any insurance payment or condemnation award and
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shall, as soon as practicable thereafter, provide the Administrative Agent
detailed information, including a construction schedule and cost estimates.
Should the Company notify the Administrative Agent that it has decided not to
rebuild or replace such Property during the Decision Period, or should the
Company fail to notify the Administrative Agent of the Company's decision during
the Decision Period, then the amounts held as Cash Collateral or as the Decision
Reserve shall automatically be applied as a mandatory prepayment of the Loans
pursuant to Section 3.01(b)(i). In the event the Company notifies the
Administrative Agent that it intends to rebuild or replace such Property during
the Decision Period, proceeds held as Cash Collateral or constituting the
Decision Reserve shall be disbursed as necessary; provided, however, should a
Default or an Event of Default occur after the Company has notified the
Administrative Agent that it intends to rebuild or replace such Property, the
Decision Reserve or Cash Collateral may, at the Administrative Agent's
discretion, or shall, upon the direction of Requisite Lenders, be applied as a
mandatory prepayment of the Loans pursuant to Section 3.01(b)(i). In the event
the Decision Reserve is to be used to rebuild or replace such Property or
applied as a mandatory prepayment of the Loans, the Company shall be deemed to
have requested Revolving Loans in an amount equal to the Decision Reserve, and,
in the case of a mandatory prepayment of the Loans, such Revolving Loans shall
be made regardless of any failure of the Company to meet the conditions set
forth in Section 5.02. Upon completion of the restoration, rebuilding or
replacement of such Property, the unused proceeds held as Cash Collateral shall
constitute Net Cash Proceeds and shall be applied as a mandatory prepayment of
the Loans pursuant to Section 3.01(b)(i).
8.08. ERISA Compliance. The Company shall, and shall cause each of
its Subsidiaries and ERISA Affiliates to, establish, maintain and operate all
Plans to comply with the provisions of ERISA, the Internal Revenue Code, all
other applicable laws, and the regulations and interpretations thereunder and
the respective requirements of the governing documents for such Plans except
where the failure to do so would not have or be reasonably likely to have a
Material Adverse Effect.
8.09. Foreign Employee Benefit Plan Compliance. The Company shall,
and shall cause each of its Subsidiaries and ERISA Affiliates to establish,
maintain and operate all Foreign Employee Benefit Plans to comply with all laws,
regulations and rules applicable thereto and the respective requirements of the
governing documents for such Plans except where the failure to do so would not
have or be reasonably likely to have a Material Adverse Effect.
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8.10. Maintenance of Property. The Company shall cause all Property
used or useful in the conduct of its business or the business of any Subsidiary
of the Company to be maintained and kept in good condition, repair and working
order (ordinary wear and tear excepted) and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof; provided, however, that
nothing in this Section shall prevent the Company or such Subsidiary from
discontinuing the operation or maintenance of any of such Property if such
discontinuance is, in the judgment of the Company or such Subsidiary, necessary
or appropriate in the conduct of its business or the business of such
Subsidiary.
8.11. Condemnation. Promptly upon learning of the institution of
any proceeding for the condemnation or other taking of any of the (a) owned Real
Property of the Company or any of its Domestic Subsidiaries with a book value in
excess of $500,000 or (b) leased Real Property of the Company or any of its
Domestic Subsidiaries for which the annual rental payments of the applicable
Lease exceed $750,000, the Company shall notify the Administrative Agent of the
pendency of such proceeding, and permit the Administrative Agent to participate
in any such proceeding, and from time to time shall deliver to the
Administrative Agent all instruments reasonably requested by the Administrative
Agent to permit such participation.
8.12. Future Liens on Real Property. After the Effective Date, with
respect to Real Property located in the United States, at least fifteen (15)
Business Days prior to the entering into of any Lease by the Company or any of
the Subsidiary Guarantors with respect to which the annual rental payments are
anticipated to equal or exceed $750,000, or the acquisition of any Real Property
acquired by the Company or any of the Subsidiary Guarantors after the date
hereof and located in the United States with a book value in excess of
$2,000,000, the Company shall, and shall cause each of the Subsidiary Guarantors
to, provide the Administrative Agent written notice thereof and with respect to
any such Lease, the Company or such Subsidiary Guarantor agrees to use its best
efforts in negotiating such Lease to obtain the consent of the landlord or owner
of such Real Property, as the case may be, to the granting of a Lien on such
Lease in favor of the Administrative Agent. Upon written request of the
Administrative Agent, and, in the case of any Lease, provided that the landlord
or owner, as the case may be, of the Real Property to which such Lease relates,
has provided its written consent to the granting of a Lien on such Lease, the
Company shall, and shall cause each of the Subsidiary Guarantors to, execute and
deliver to the Administrative Agent, for the benefit of the Administrative
Agent, the Co-Agents, the Issuing Banks and the Lenders, immediately upon the
acquisition or lease of such Real Property (other than Real Property acquired
with the
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proceeds of Indebtedness permitted by Section 9.01(vi) and subject to a Lien
permitted by Section 9.03(iv)) a mortgage, deed of trust, assignment or other
appropriate instrument evidencing a Lien upon any such Real Property, together
with such Title Policies, certified Surveys, and local counsel opinions with
respect thereto and such other agreements, documents and instruments which the
Administrative Agent deems necessary or desirable, the same to be in form and
substance substantially the same as the mortgages and other Loan Documents
relating to Real Property of the Company and the Subsidiary Guarantors executed
and delivered in connection with this Agreement, and to be subject only to (i)
Liens permitted under Section 9.03 and (ii) such other Liens as the
Administrative Agent may reasonably approve, it being understood that the
granting of such additional security for the Obligations pursuant to this
Section 8.12 is a material inducement to the execution and delivery of this
Agreement by each Lender.
8.13. Future Liens on Personal Property. (a) The Company shall, and
shall cause each of the Subsidiary Guarantors to, provide to the Administrative
Agent, for the benefit of the Administrative Agent, the Co-Agents, the Issuing
Banks and the Lenders (i) a Lien upon the personal Property located in the
United States of each Subsidiary Guarantor becoming party to the Subsidiary
Guaranty after the Effective Date, pursuant to a Security Agreement
substantially in the form of the Subsidiary Security Agreement dated as of
November 21, 1994, as amended, delivered in connection with the Existing Credit
Agreement, together with such other agreements, documents and instruments which
the Administrative Agent deems necessary or desirable, the same to be in form
and substance substantially the same as the Loan Documents relating to personal
Property of the other Subsidiary Guarantors executed and delivered in connection
with this Agreement, and to be subject only to Liens permitted by Section 9.03
and such other Liens as the Administrative Agent may reasonably approve and (ii)
a pledge of (A) 100% of the Capital Stock of any Non-Guarantor Domestic
Subsidiary or domestic Permitted Joint Venture (other than Thermalex or Thermal
Components, Inc.) held by the Company or any Subsidiary Guarantor and (B) all of
the Capital Stock of (I) any Foreign Borrower held by the Company or any
Subsidiary Guarantor and (II) any other Foreign Subsidiary or foreign Permitted
Joint Venture held by the Company or any Subsidiary Guarantor with net assets
with an aggregate book value in excess of $10,000,000 (but in either case no
greater than 65% of the outstanding Capital Stock of such Subsidiary or joint
venture shall be pledged as security for the Obligations (other than the
Obligations of the Company and the Subsidiary Guarantors in respect of their
guaranty of the Obligations of the Foreign Borrowers)), pursuant to a pledge
agreement in form and substance satisfactory to the Administrative Agent,
together with such other agreements, documents and instruments which the
Administrative Agent deems
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necessary or desirable, and (b) the Company shall cause any Wholly Owned
Domestic Subsidiary (other than Thermal Components, Inc.) with net assets with
an aggregate book value in excess of $5,000,000 to become a Subsidiary Guarantor
pursuant to the terms of the Subsidiary Guaranty, it being understood that the
granting of the additional security for the Obligations pursuant to this Section
8.13 is a material inducement to the execution and delivery of this Agreement by
each Lender.
8.14. Landlord Waivers. On or prior to the Effective Date, the
Company has obtained and delivered to the Administrative Agent landlord waivers
(with copies of the relevant leases attached) in form and substance reasonably
satisfactory to the Administrative Agent relating to the Company's Leases,
except for landlord waivers that the Company, despite its best efforts as of the
Effective Date, has been unable to obtain. The Company shall use its best
efforts to obtain and deliver to the Administrative Agent landlord waivers (with
copies of the relevant Lease attached) with respect to any Lease entered into
after the Effective Date which relates to a location in which there is, or is
reasonably expected to be, Collateral with a book value of $3,000,000 or more.
8.15. Environmental Compliance. The Company and the Company's
Subsidiaries shall comply with all Environmental, Health or Safety Requirements
of Law, except where the failure to so comply would not have or be reasonably
likely to have a Material Adverse Effect.
8.16. Post-Closing Matters. To the extent not delivered prior to or
on the Effective Date, the Company shall deliver to the Administrative Agent, in
form and substance satisfactory to the Administrative Agent, each of the
agreements, instruments, opinions and other documents listed under the heading
"Postclosing Matters" on the List of Closing Documents attached hereto as
Exhibit N within the time periods set forth on such List of Closing Documents.
8.17. Permitted Acquisitions. (a) In addition to any other
limitation set forth in this Agreement, neither the Company nor any of its
Domestic Subsidiaries shall, in connection with any Permitted Acquisition, enter
into any acquisition or purchase agreement providing for a Permitted Acquisition
which does not allow for the assignment of the Company's or such Subsidiary's
rights thereunder to the Administrative Agent as security for the Obligations.
(b) On the Funding Date for any Borrowing of Revolving Loans for
the purpose of consummating a Permitted Acquisition, (i) the Administrative
Agent shall have received an Officer's Certificate certifying that (a) the
acquisition meets the requirements of the definition of Permitted Acquisition
(setting
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forth detailed calculations of all financial covenants), (b) such acquisition
complies with the requirements of Sections 9.12 and 9.17 and (c) the liabilities
of the type referred to in Sections 9.12 and 9.17 with respect to such Permitted
Acquisition and any other liabilities assumed in connection with such Permitted
Acquisition do not or are not reasonably likely to have a Material Adverse
Effect, (ii) the Company shall have delivered to the Administrative Agent copies
of (or to the extent unavailable, forms of) all material documentation
evidencing the Permitted Acquisition, including, without limitation, the
relevant acquisition or purchase agreement, corporate resolutions approving such
Permitted Acquisition and opinions of counsel delivered in connection therewith
(and the Company will use reasonable efforts to enable the Administrative Agent
and the Lenders to be entitled to rely thereon) each certified by the Secretary
or Assistant Secretary of the Company to be either (A) true and correct copies
of such documents in full force and effect or (B) substantially in the form of
the final documentation evidencing such Permitted Acquisition (provided that any
such final documentation not delivered to the Administrative Agent on the
Funding Date shall be delivered to the Administrative Agent no later than five
Business Days after the Funding Date) and (iii) the Company shall have delivered
to the Administrative Agent copies of all material business and financial
information (with appropriate supporting detail) relating to the business
purchased in the Permitted Acquisition as the Administrative Agent may
reasonably request.
ARTICLE IX
NEGATIVE COVENANTS
Each of the Borrowers covenants and agrees (with respect to those
covenants set forth below applicable to itself and its Subsidiaries) that it
shall comply with the following covenants so long as any Revolving Credit
Commitment is outstanding and thereafter until payment in full of all of the
Obligations, unless (except as otherwise provided below) the Requisite Lenders
shall otherwise give prior written consent thereto or shall have waived
compliance:
9.01. Indebtedness. None of the Company or any of its Subsidiaries
shall directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness, and any extensions, renewals,
refundings or replacements of Permitted Existing Indebtedness; provided
that any such extension, renewal, refunding or replacement is in an
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aggregate principal amount not greater than the principal amount of,
and is on terms no less favorable to the Company or such Subsidiary
than the terms of, the Permitted Existing Indebtedness so extended,
renewed, refunded or replaced;
(iii) Non-Facility Letters of Credit for which a Non- Facility
Letter of Credit Reserve has been established by the Administrative
Agent following receipt of a written notice from the Company
instructing the Administrative Agent to establish such reserve;
provided, however, the aggregate amount available for drawing under all
Letters of Credit and Non-Facility Letters of Credit shall not exceed
the sum of (A) $50,000,000 and (B) the aggregate amount available for
drawing under any Non-Facility Letter of Credit incurred pursuant to
clause (xiii) of this Section 9.01;
(iv) Indebtedness in respect of taxes, assessments, governmental
charges and claims for labor, materials or supplies, to the extent that
payment thereof is not required pursuant to Section 8.04;
(v) Indebtedness constituting Accommodation Obligations to the
extent permitted by Section 9.05(i) through (viii);
(vi) to the extent permitted by Article X and in any event in an
aggregate outstanding principal amount not to exceed $15,000,000 at any
time, Capital Leases and purchase money Indebtedness incurred by the
Company and/or any Domestic Subsidiary (or by the Person whose Capital
Stock or assets were purchased by the Company or any Domestic
Subsidiary in connection with a Permitted Acquisition) to finance the
acquisition of fixed assets, and Indebtedness incurred by the Company
and/or any such Domestic Subsidiary to refinance, extend, renew, refund
or replace such Capital Leases and purchase money Indebtedness;
(vii) Indebtedness (other than Funded Debt) incurred in connection
with Customary Permitted Liens;
(viii) Indebtedness arising from intercompany loans (A) from the
Company to any Subsidiary Guarantor or from any Subsidiary Guarantor to
any Subsidiary of such Subsidiary Guarantor that is also a Guarantor;
(B) from the Company or any Subsidiary Guarantor to any Non-Guarantor
Domestic Subsidiary, Permitted Joint Venture or any Foreign Subsidiary
which Indebtedness shall not cause the Maximum Non-Guarantor Subsidiary
Investment Amount to exceed $20,000,000 in the aggregate at any time;
(C) from any Subsidiary of any Subsidiary Guarantor to such Guarantor;
or (D) from any Subsidiary of the Company to the Company;
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provided that the loans referred to in clause (A) shall be evidenced by
an intercompany promissory notes substantially in the form of Exhibit
J, payable to the Company or the applicable Subsidiary Guarantor, as
the case may be, which promissory notes shall be secured by a Lien on
the personal Property of such Guarantor and shall be delivered and
pledged to the Administrative Agent as part of Collateral;
(ix) Indebtedness of (A) the Company arising pursuant to Interest
Rate Contracts entered into with any Lender for the purpose of hedging
the Company's interest rate exposure and not for speculative purposes,
(B) the Company or any Subsidiary of the Company arising pursuant to
Currency Agreements entered into in the ordinary course of the
Company's or such Subsidiary's business and (C) the Company arising
pursuant to Currency Agreements entered into for the purpose of hedging
the Company's foreign exchange exposure in respect of Revolving Loans
made for the purpose of financing the acquisition of ARUP and providing
for its working capital needs in a notional principal amount not to
exceed $30,000,000;
(x) Indebtedness incurred by any Foreign Subsidiary (other than
Indebtedness owing to the Company or any Domestic Subsidiary) not in
excess of an aggregate outstanding principal amount of $10,000,000 at
any time (plus the aggregate outstanding principal amount of any
Indebtedness in support of which the Company or any Subsidiary
Guarantor has entered into an Accommodation Obligation pursuant to
Section 9.05(iv));
(xi) Indebtedness in respect of the Subordinated Notes; provided
that (A) the gross proceeds of the issuance of such notes do not exceed
$175,000,000, (B) the issuance of such Subordinated Notes occurs on or
prior to December 31, 1997 and (C) the terms of the Subordinated Notes
and the Subordinated Note Indenture (including, without limitation, as
to subordination, covenants, cross-default, interest rate and maturity)
are approved by the Lenders (it being understood that an interest rate
of 15% per annum or less is acceptable to the Lenders);
(xii) Indebtedness in respect of metals futures contracts entered
into by the Company and its Subsidiaries in the ordinary course of
business and not for speculative purposes;
(xiii) In addition to Indebtedness permitted by clauses (i) through
(xi) above, Indebtedness of the Company or any Subsidiary incurred
after the date hereof (in respect of Non-Facility Letters of Credit or
otherwise) in an amount not to exceed an aggregate outstanding
principal amount of
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$30,000,000 (less the amount of Indebtedness incurred
pursuant to clause (vi) of this Section 9.01) at any time;
(xiv) Indebtedness in connection with borrowings against the cash
surrender value of life insurance maintained by the Company or any of
its Subsidiaries; provided, however, that unless such Indebtedness is
otherwise permitted to be incurred pursuant to clause (xiii) above, the
proceeds of such borrowings shall be used solely to pay the premiums
with respect to such insurance policies and any accrued and unpaid
interest on, and any premiums or penalties relating to, any such
borrowings, and any extensions, renewals, refundings or replacements of
such Indebtedness; provided that any such extension, renewal, refunding
or replacement is in an aggregate principal amount not greater than the
principal amount of, and is on terms no less favorable to the Company
or such Subsidiary than the terms of, the Indebtedness so extended,
renewed, refunded or replaced; and
(xv) Indebtedness incurred (other than the Obligations) or assumed
in connection with or as a result of a Permitted Acquisition in an
aggregate amount not to exceed $15,000,000 at any time outstanding.
9.02. Sales of Assets. None of the Company or any of the Domestic
Subsidiaries shall sell, assign, transfer, lease, convey or otherwise dispose of
any Property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except:
(i) sales, leases, assignments, transfers, conveyances or other
dispositions of Inventory in the ordinary course of business; provided,
however, that any such sale, transfer or other disposition of Inventory
to any Non-Guarantor Domestic Subsidiary, Permitted Joint Venture or
Foreign Subsidiary shall not cause the Maximum Non-Guarantor Subsidiary
Investment Amount to exceed $20,000,000 in the aggregate at any time;
(ii) sales, assignments, transfers, conveyances or other
dispositions (other than Leases or subleases of Leases) of Properties
outside of the ordinary course of business not to exceed in the
aggregate more than $5,000,000 in any Fiscal Year (exclusive of any
sales or other dispositions permitted in clause (vii) below); provided,
however, that any such sale, transfer or other disposition of such
Properties to any Non-Guarantor Domestic Subsidiary, Permitted Joint
Venture or Foreign Subsidiary shall not cause the Maximum Non-Guarantor
Subsidiary Investment Amount to exceed $20,000,000 in the aggregate at
any time;
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(iii) in addition to dispositions permitted under clauses (i) and
(ii) of this Section 9.02, the disposition of Equipment of the Company
or any of the Domestic Subsidiaries if such Equipment is obsolete or no
longer useful in the ordinary course of the Company's or such Domestic
Subsidiary's business or otherwise is not required to be maintained by
the Company or such Domestic Subsidiary pursuant to Section 8.10;
(iv) assignments and licenses of intellectual Property of the
Company or any of its Subsidiaries in the ordinary course of business;
(v) the sale or transfer of Property of the Company or any Domestic
Subsidiary to any Subsidiary Guarantor or the Company (other than a
sale of all or a substantial portion of the assets of such Person in
any transaction or series of related transactions);
(vi) (A) subleases of Leases or Leases, to the extent at any point
in time such subleases or Leases have anticipated annual rental
payments of not more than $2,000,000 in the aggregate since the
Effective Date and (B) subleases of Leases or Leases of any Real
Property listed on Schedule 9.02;
(vii) the Company may from time to time sell, assign, transfer,
convey or otherwise dispose of any or all of the Properties specified
in Schedule 9.02; provided that if in connection with a sale or similar
disposition of any such Property, the Company receives a note or
similar obligation as all or part of the consideration therefor, the
Company shall secure such note or obligation with a mortgage or similar
Lien on such Property and pledge such note or other obligation to the
Administrative Agent as security for the Obligations pursuant to the
terms of the Loan Documents; and
(viii) Sale and Leaseback Transactions to the extent permitted by
Section 9.10.
9.03. Liens. None of the Company or any of the Domestic
Subsidiaries shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to any of their respective Property except:
(i) Liens created by the Loan Documents;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens;
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(iv) purchase money Liens granted by the Company or any Domestic
Subsidiary (including the interest of a lessor under a Capital Lease)
and Liens to which any Property is subject at the time of the Company's
or any Domestic Subsidiary's acquisition thereof) securing Indebtedness
permitted under Section 9.01(vi) and limited in each case to the
Property purchased or subject to such lease;
(v) to the extent Indebtedness secured thereby is permitted to be
extended, renewed, refunded or refinanced pursuant to clauses (ii),
(vi) or (xiv) of Section 9.01, a future Lien on any Property which is
subject to a Lien described in clause (ii), (iv) or (vii) of this
Section 9.03, if such future Lien attaches only to the same Property
and secures only such permitted extensions, renewals, replacements or
refinancings;
(vi) Liens securing reimbursement obligations with respect to
commercial letters of credit which constitute Non-Facility Letters of
Credit; provided that such Liens only attach to the Property being
acquired with the proceeds of such Non-Facility Letters of Credit;
(vii) other Liens securing not more than $5,000,000 of any
Indebtedness or Accommodation Obligation permitted hereunder;
(viii) Liens securing Indebtedness assumed in connection with, or
continuing to exist after but not incurred in connection with, a
Permitted Acquisition as permitted by Section 9.01(xv), which Liens
were in effect prior to the consummation of the Permitted Acquisition;
and
(ix) A negative pledge granted by the Company and its Subsidiaries
in favor of the trustee under the Subordinated Note Indenture.
9.04. Investments. None of the Company or any of the Domestic
Subsidiaries shall directly or indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments;
(iii) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
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(iv) Investments (A) by the Company or any Subsidiary Guarantor in
any Non-Guarantor Domestic Subsidiary, Permitted Joint Venture or
Foreign Subsidiary which Investments shall not cause the Maximum
Non-Guarantor Subsidiary Investment Amount to exceed $20,000,000 in the
aggregate at any time or (B) by the Company or any Guarantor in any
Subsidiary Guarantor to the extent a loan or loans made by the Company
or such Guarantor are permitted pursuant to Section 9.01(viii)(A) or
Section 9.01(viii)(C);
(v) (A) loans or advances to employees of the Company or any of its
Subsidiaries, which loans and advances shall not in the aggregate (but
excluding advances referred to in clause (B) hereof) exceed $3,000,000
outstanding at any time and (B) advances to sales representatives of
the Company or any of its Subsidiaries in the ordinary course of
business and consistent with past practices;
(vi) additional Investments not otherwise permitted in this Section
9.04 not to exceed $10,000,000 in the aggregate at any one time
outstanding;
(vii) Investments not to exceed $6,500,000 at any one time
outstanding in the aggregate in certificates of deposit and bank
deposits with maturities of up to five years in Puerto Rican financial
institutions necessary to maintain the Company's or any Subsidiary's
preferred tax treatment in Puerto Rico;
(viii) Investments received by the Company or any Domestic
Subsidiary as consideration for the sale or other disposition of
Property permitted by Section 9.02;
(ix) Investments made pursuant to Permitted Acquisitions; provided,
however, no Investment made in any Non-Guarantor Domestic Subsidiary,
Permitted Joint Venture or Foreign Subsidiary (whether existing before,
or after giving effect to, such Permitted Acquisition) pursuant to such
Permitted Acquisition shall cause the Maximum Non-Guarantor Subsidiary
Investment Amount to exceed $20,000,000 in the aggregate at any time;
(x) in addition to Investments in Permitted Acquisitions permitted
pursuant to clause (ix) above, Investments made by the Company in
Insilco GmbH and its Subsidiaries of up to $5,000,000 in the aggregate
since the Effective Date; and
(xi) Investments in Interest Rate Contracts permitted pursuant to
Section 9.01(ix)(A) and metals future contracts permitted pursuant to
Section 9.01(xii).
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9.05. Accommodation Obligations. None of the Company or any of the
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Accommodation Obligation, except:
(i) Permitted Existing Accommodation Obligations;
(ii) Accommodation Obligations arising under the Loan Documents;
(iii) obligations, warranties and indemnities, not with respect to
Indebtedness of any Person, which have been or are undertaken or made
in the ordinary course of business;
(iv) Accommodation Obligations of the Company or any Subsidiary
Guarantor in respect of any Non-Guarantor Domestic Subsidiary,
Permitted Joint Venture or Foreign Subsidiary, which Accommodation
Obligations shall not cause the Maximum Non-Guarantor Subsidiary
Investment Amount to exceed $20,000,000 at any time;
(v) Accommodation Obligations of any Subsidiary Guarantor in
respect of obligations of the Company or of any Subsidiary of such
Subsidiary Guarantor that is also a Guarantor;
(vi) reimbursement obligations under Non-Facility Letters of
Credit;
(vii) Accommodation Obligations with respect to Customary Permitted
Liens, other obligations, warranties and indemnities (other than with
respect to Indebtedness) in the ordinary course of business and with
respect to customary representations, warranties and indemnities
entered into in connection with the sale or other disposition of
Property or in connection with any Permitted Acquisition;
(viii) Accommodation Obligations of the Company in respect of any
Subsidiary Guarantor; and
(ix) Accommodation Obligations constituting Indebtedness to the
extent permitted under Section 9.01.
9.06. Restricted Junior Payments. Subject to Section 9.16, none of
the Company or any of the Domestic Subsidiaries shall declare or make any
Restricted Junior Payment except:
(i) dividends or other distributions made to the Company or any of
the Domestic Subsidiaries by any Subsidiary of the Company;
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(ii) the purchase or redemption of Capital Stock in connection with
a simultaneous sale of an equivalent amount of Capital Stock for the
same purchase or redemption price;
(iii) purchase of shares of Capital Stock in connection with claims
made in bankruptcy proceedings pursuant to the Plan of Reorganization
not to exceed $2,000,000 in the aggregate in any Fiscal Year;
(iv) payments with respect to employee or director stock options,
stock incentive plans or restricted stock plans of the Company;
provided, the aggregate amount of such payments do not exceed
$2,500,000 in any Fiscal Year or $6,500,000 in the aggregate since
November 21, 1994;
(v) [Intentionally omitted];
(vi) regularly scheduled payments of interest and principal in
respect of the Subordinated Notes (to the extent the issuance thereof
is permitted pursuant to Section 9.01(xi)) and Indebtedness of the
Company or any Domestic Subsidiary that is expressly subordinated in
writing to the Obligations and permitted pursuant to Section
9.01(xiii), but only if, in each case, such payment is permitted to be
made pursuant to the terms of the Subordinated Note Indenture or such
subordinated Indebtedness, as the case may be (it being understood that
no scheduled payments of principal on the Subordinated Notes or such
subordinated Indebtedness will be required to be made prior to the
seventh anniversary of the Effective Date);
(vii) so long as no Default or Event of Default has occurred or would
result therefrom, redemptions or repurchases of Common Stock of the
Company pursuant to the Stock Repurchase (it being understood and
agreed that, subject to clause (ix) below,any redemption or repurchase
pursuant to the Stock Repurchase in excess of the amount of the Rolodex
Proceeds may only be made after the receipt by the Company of at least
$100,000,000 in gross proceeds from the issuance of the Subordinated
Notes); provided, however, no distribution of the Rolodex Proceeds
pursuant to the Stock Repurchase or otherwise may be made after
December 31, 1997; and
(viii) in the event the Stock Repurchase is consummated and the
Company has received at least $100,000,000 in gross proceeds from the
issuance of the Subordinated Notes, purchases for no greater than Fair
Market Value by the Company of Common Stock or dividends or other
distributions in respect of such Common Stock in an amount not to
exceed the excess, if any, of the Maximum Stock Repurchase Amount over
the amount of redemptions or repurchases made pursuant
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to the Stock Repurchase; provided that (A) no Event of Default shall
have occurred and be continuing prior to such purchase or after giving
effect thereto and (B) no such purchase may be made after the first
anniversary of the completion of the Stock Repurchase, but if, at the
end of such one-year period, the Leverage Ratio of the Company and its
Subsidiaries for the most recently ended fiscal quarter for which the
Company has delivered a Compliance Certificate to the Administrative
Agent is less than 3.5 to 1, the Company may continue to make such
purchases so long as (I) it maintains a Leverage Ratio of less than 3.5
to 1 for each subsequent fiscal quarter and (II) in connection with any
such purchase, the Company's Leverage Ratio on a pro forma basis after
giving effect to any Indebtedness incurred for the purpose of making
such purchase is also less than 3.5 to 1; and
(ix) if within 90 days after the issuance of the Subordinated
Notes, no portion of the Stock Repurchase in excess of the Rolodex
Proceeds has been consummated and the Stock Repurchase has been
terminated or withdrawn, then the Subordinated Notes may be rescinded
or otherwise prepaid or redeemed in accordance with the terms of the
Subordinated Note Indenture, but only to the extent of the proceeds
received by the Company from the issuance of the Subordinated Notes
together with any premium and associated transaction costs incurred in
connection therewith (it being understood and agreed that if the
Subordinated Notes are repaid pursuant to this clause (ix) then no
portion of the Stock Repurchase in excess of the Rolodex Proceeds may
be made pursuant to Section 9.06(vii)).
9.07. Conduct of Business. None of the Company or any of its
Subsidiaries shall engage in any business (pursuant to a Permitted Joint
Venture, Permitted Acquisition or otherwise) other than the businesses engaged
in by the Company or such Subsidiaries on the date hereof and any business or
activities which are substantially similar, related or incidental thereto,
except to the extent otherwise permitted hereunder. The Company agrees to cause
Insilco GmbH not to engage in any business or activity other than acting as a
holding company for each of its Subsidiaries and engaging in the transactions
contemplated in any agreement for the acquisition of any such Subsidiary.
9.08. Transactions with Affiliates. The Company shall not, and
shall not permit any of its Subsidiaries, except as otherwise expressly
permitted herein, to do any of the following: (i) make any Investment in an
Affiliate of the Company or any of the Company's Subsidiaries; (ii) transfer,
sell, lease, assign or otherwise dispose of any Property to any Affiliate of the
Company or any of the Company's Subsidiaries; (iii) merge into or consolidate
with or purchase or acquire assets from any Affiliate
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of the Company or any of the Company's Subsidiaries; (iv) repay any Indebtedness
to any Affiliate of the Company or any of the Company's Subsidiaries; (v) pay
any royalties to any Affiliate of the Company or any of the Company's
Subsidiaries; (vi) pay any management fees to any Affiliate of the Company or
any of the Company's Subsidiaries; or (vii) enter into any other transaction
directly or indirectly with or for the benefit of any Affiliate of the Company
or any of the Company's Subsidiaries (including, without limitation, guaranties
and assumptions of obligations of any such Affiliate) except in each case for
transactions (A) in the ordinary course of business and (B) either on a basis no
less favorable to the Company or such Subsidiary as would be obtained in a
comparable arm's length transaction with a Person not an Affiliate, or in the
case of compensation payable to any officer or director of the Company or such
Subsidiary, in an amount approved by the Board of Directors of the Company or
such Subsidiary.
9.09. Restriction on Fundamental Changes. (a) Except in
connection with a Permitted Joint Venture or a Permitted Acquisition, none of
the Company or any of the Domestic Subsidiaries or Foreign Borrowers shall (i)
enter into any merger or consolidation, or liquidate, wind-up or dissolve (or
suffer any liquidation or dissolution), except for a merger or consolidation of
(A) any Non-Guarantor Domestic Subsidiary into another Non-Guarantor Domestic
Subsidiary, (B) any Wholly Owned Non-Guarantor Domestic Subsidiary into the
Company or a Subsidiary Guarantor (with the Company or such Subsidiary Guarantor
as the surviving corporation) or (C) INR Holding Co. into the Company or a
Subsidiary Guarantor (with the Company or such Subsidiary Guarantor as the
surviving corporation); provided that, after giving effect to any such merger or
consolidation, no Default or Event of Default shall have occurred or be
continuing, (ii) enter into any partnership or joint venture, or (iii) enter
into or permit any transaction or series of transactions in which the Company
and/or any of the Domestic Subsidiaries acquire all or any significant portion
of the Capital Stock and/or assets of another Person.
(b) The Company shall not permit any Subsidiary Guarantor or
Foreign Borrower to cease to be a direct or indirect Wholly Owned Subsidiary of
the Company.
9.10. Sales and Leasebacks. None of the Company or any of the
Domestic Subsidiaries shall enter into any Sale and Leaseback Transaction other
than a Sale and Leaseback Transaction on terms and conditions satisfactory to
the Administrative Agent relating to the sale and lease of owned Property where,
after giving effect to all such Sale and Leaseback Transactions, the aggregate
Fair Market Value of all such Property sold does not exceed $20,000,000 since
the Effective Date.
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9.11. Margin Regulations; Securities Laws. None of the Company
or any of the Company's Subsidiaries, shall use all or any portion of the
proceeds of any credit extended hereunder to purchase or carry Margin Stock in
violation of Regulation G or Regulation U.
9.12. ERISA. The Company shall not, to the extent the
following actions, individually or in the aggregate, would have, or are
reasonably likely to have, a Material Adverse Effect:
(i) engage, or permit any ERISA Affiliate to engage, in any
prohibited transaction described in Sections 406 of ERISA or 4975 of
the Internal Revenue Code for which a statutory or class exemption is
not available or a private exemption has not been previously obtained
from the DOL;
(ii) permit to exist any accumulated funding deficiency (as
defined in sections 302 of ERISA and 412 of the Internal Revenue Code),
with respect to any Benefit Plan, whether or not waived;
(iii) terminate, or permit any ERISA Affiliate to terminate,
any Benefit Plan which would result in any material liability of
Company or any ERISA Affiliate under Title IV of ERISA;
(iv) fail to make any contribution or payment to any
Multiemployer Plan which Company or any ERISA Affiliate may be required
to make under any agreement relating to such Multiemployer Plan, or any
law pertaining thereto;
(v) fail, or permit any ERISA Affiliate to fail, to pay any
required installment or any other payment required under Section 412 of
the Internal Revenue Code on or before the due date for such
installment or other payment;
(vi) amend, or permit any ERISA Affiliate to amend, a Plan
resulting in an increase in current liability for the plan year such
that the Company or any ERISA Affiliate is required to provide security
to such Plan under Section 401(a)(29) of the Internal Revenue Code;
(vii) permit any unfunded liabilities with respect to any
Foreign Pension Plan; or
(viii) fail, or permit any Subsidiary or ERISA Affiliate to
fail, to pay any required contributions or payments to a Foreign
Pension Plan on or before the due date for such required installment or
payment.
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9.13. Issuance or Sale of Capital Stock. None of the Company's
Subsidiaries shall (i) grant any rights (either preemptive or others) to
subscribe for or to purchase, or any option for the purchase of, Capital Stock
or (ii) create calls, commitments, claims of any character relating to any of
its Capital Stock, other than as permitted pursuant to Section 9.07 or Section
9.09 or pursuant to the management incentive plans listed on Schedule 9.13, as
amended from time to time (it being understood that any such amendment would not
increase the Company's obligation to make Restricted Junior Payments beyond the
amounts permitted in Section 9.06(iv)). Other than as permitted pursuant to
Section 9.09(a), the Company shall not sell or otherwise dispose of, or permit
the sale or disposition of, any shares of Capital Stock of any Subsidiary
Guarantor or Foreign Borrower.
9.14. Constituent Documents. None of the Company or any of the
Company's Subsidiaries shall materially amend, modify or otherwise change any of
the terms or provisions in any of their respective Constituent Documents as in
effect on the Effective Date (except for amendments, modifications or other
changes to such Constituent Documents that, in the judgment of the
Administrative Agent, do not materially affect the rights and privileges of the
Company or any of its Subsidiaries under the Loan Documents, or the interests of
the Administrative Agent, the Co-Agents, the Lenders or the Issuing Banks under
the Loan Documents or in the Collateral).
9.15. Fiscal Year. None of the Company or any of the Company's
consolidated Subsidiaries shall change its Fiscal Year for accounting or tax
purposes from a period consisting of the 12-month period ending on December 31
of each calendar year.
9.16. Cancellation of Debt; Prepayment; Certain Amendments.
Neither the Company nor any of the Domestic Subsidiaries shall (i) cancel any
material claim or debt or amend or modify the terms thereof, except in the
ordinary course of its business, in connection with the reasonable modification
to payment terms, in connection with the Plan of Reorganization, in connection
with those notes set forth in Section 3 of Schedule 1.01.3 or otherwise in
connection with the compromise and settlement of disputes and except for
Indebtedness (whether or not evidenced by a promissory note pledged to the
Administrative Agent) incurred prior to the Effective Date arising from
intercompany loans not in excess of the amounts of such Indebtedness set forth
on Schedule 9.16, (ii) voluntarily prepay, redeem, purchase, repurchase, defease
or retire the Subordinated Notes or any other long-term Indebtedness (other than
the Obligations) or (iii) after the issuance of the Subordinated Notes, amend,
supplement or otherwise modify the terms of the Subordinated Notes or the
Subordinated Note Indenture (except amendments, supplements or other
modifications to such terms
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that, in the reasonable judgment of the Administrative Agent, do not materially
adversely affect the rights and privileges of the Borrower under the
Subordinated Notes or the Subordinated Note Indenture or the interests of the
Administrative Agent, the Lenders or the Issuing Banks under the Loan Documents
or in the Collateral).
9.17. Environmental Matters. None of the Company nor any of
Company's Subsidiaries shall become subject to any Liabilities and Costs which
would have a Material Adverse Effect arising out of or related to (a) the
Release or threatened Release at any location of any Contaminant into the
environment, or any Remedial Action in response thereto, or (b) any violation of
any Environmental, Health and Safety Requirements of Law.
9.18. Foreign Subsidiary. No Foreign Subsidiary shall enter
into any Accommodation Obligation with respect to any Indebtedness of the
Company or any Domestic Subsidiary (other than the Obligations) or grant or
permit to exist any Lien on its Property to secure any such Indebtedness (other
than those Accommodation Obligations and Liens set forth on Schedule 9.18
hereto).
9.19. No New Restrictions on Subsidiary Dividends. Except as
may be required by any applicable Requirements of Law or pursuant to the Loan
Documents, the Company will not agree, or permit any of the Domestic
Subsidiaries to agree, to create or otherwise become effective any consensual
encumbrance or restriction of any kind on the ability of any Domestic Subsidiary
to (i) pay, directly or indirectly, dividends or make any other distributions in
respect of its Capital Stock, (ii) make any other distribution or transfer of
funds or assets or (iii) make loans or advances to or other Investments in, or
pay any Indebtedness or other obligation owing to, the Company.
9.20. Accounting Changes. The Company shall not make, nor
permit any of its Subsidiaries to make, any material (as defined in GAAP) change
in accounting treatment and reporting practices or tax reporting treatment,
except as required or permitted by GAAP or law and concurred with, if
applicable, by the Company's independent accountants and disclosed to the
Administrative Agent or as otherwise permitted by the Loan Documents.
ARTICLE X
FINANCIAL COVENANTS
Each of the Borrowers covenants and agrees that so long as any
Revolving Credit Commitment is outstanding and thereafter until payment in full
of all of the Obligations, unless the
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Requisite Lenders shall otherwise give prior written consent thereto:
10.01. Minimum Consolidated Net Worth. The Consolidated Net
Worth of the Company and its Subsidiaries at all times during any period set
forth below shall not be less than the minimum amount set forth opposite such
period:
Period Minimum Amount
------ --------------
Effective Date through
June 29, 1998 ($130,000,000)
June 30, 1998 through
March 30, 1999 ($120,000,000)
March 31, 1999 through
June 29, 1999 ($115,000,000)
June 30, 1999 through
December 30, 1999 ($110,000,000)
December 31, 1999 through
March 30, 2000 ($105,000,000)
March 31, 2000 through
June 29, 2000 ($100,000,000)
June 30, 2000 through
September 29, 2000 ($ 90,000,000)
September 30, 2000 through
December 30, 2000 ($ 85,000,000)
December 31, 2000 through
March 30, 2001 ($ 80,000,000)
March 31, 2001 through
June 29, 2001 ($ 75,000,000)
June 30, 2001 through
September 29, 2001 ($ 70,000,000)
September 30, 2001 through
December 30, 2001 ($ 65,000,000)
December 31, 2001 through
March 30, 2002 ($ 60,000,000)
March 31, 2002 through
June 29, 2002 ($ 50,000,000)
June 30, 2002 through
September 29, 2002 ($ 45,000,000)
September 30, 2002 through
December 30, 2002 ($ 40,000,000)
December 31, 2002 through
March 30, 2003 ($ 35,000,000)
March 31, 2003 through
June 29, 2003 ($ 30,000,000)
June 30, 2003 and
thereafter ($ 25,000,000)
10.02. Minimum Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio of the Company and its Subsidiaries on a consolidated basis, as
determined as of the last day of each
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fiscal quarter of the Company set forth below for the twelve month period ending
on such date, shall not be less than the minimum ratio set forth opposite such
fiscal quarter:
Fiscal Quarter Minimum Ratio
-------------- -------------
Third fiscal quarter of 1997 1.50 to 1
Fourth fiscal quarter of 1997 1.50 to 1
First fiscal quarter of 1998 1.25 to 1
Second fiscal quarter of 1998 1.10 to 1
Third fiscal quarter of 1998 1.15 to 1
Fourth fiscal quarter of 1998 1.15 to 1
First fiscal quarter of 1999 1.15 to 1
Second fiscal quarter of 1999 1.25 to 1
Third fiscal quarter of 1999 1.25 to 1
Fourth fiscal quarter of 1999 1.30 to 1
First fiscal quarter of 2000 1.30 to 1
Second fiscal quarter of 2000 1.40 to 1
Third fiscal quarter of 2000 1.40 to 1
Fourth fiscal quarter of 2000 1.40 to 1
First fiscal quarter of 2001 1.40 to 1
Second fiscal quarter of 2001 1.50 to 1
Third fiscal quarter of 2001 1.50 to 1
Fourth fiscal quarter of 2001 1.50 to 1
First fiscal quarter of 2002 1.50 to 1
Second fiscal quarter of 2002 1.75 to 1
Third fiscal quarter of 2002 1.75 to 1
Fourth fiscal quarter of 2002
and each fiscal quarter thereafter 2.00 to 1
10.03. Minimum Interest Coverage Ratio. The Interest Coverage
Ratio of the Company and its Subsidiaries on a consolidated basis, as determined
as of the last day of each fiscal quarter of the Company set forth below for the
twelve month period ending on such date, shall not be less than the minimum
ratio set forth opposite such fiscal quarter:
Fiscal Quarter Minimum Ratio
-------------- -------------
Third fiscal quarter of 1997 2.50 to 1
Fourth fiscal quarter of 1997 2.50 to 1
First fiscal quarter of 1998 2.25 to 1
Second fiscal quarter of 1998 2.00 to 1
Third fiscal quarter of 1998 2.00 to 1
Fourth fiscal quarter of 1998 2.00 to 1
First fiscal quarter of 1999 2.00 to 1
Second fiscal quarter of 1999 2.10 to 1
Third fiscal quarter of 1999 2.10 to 1
Fourth fiscal quarter of 1999 2.20 to 1
First fiscal quarter of 2000 2.20 to 1
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Second fiscal quarter of 2000 2.25 to 1
Third fiscal quarter of 2000 2.25 to 1
Fourth fiscal quarter of 2000 2.35 to 1
First fiscal quarter of 2001 2.35 to 1
Second fiscal quarter of 2001 2.50 to 1
Third fiscal quarter of 2001 2.50 to 1
Fourth fiscal quarter of 2001 2.75 to 1
First fiscal quarter of 2002 2.75 to 1
Second fiscal quarter of 2002 2.75 to 1
Third fiscal quarter of 2002 2.75 to 1
Fourth fiscal quarter of 2002 3.00 to 1
First fiscal quarter of 2003
and each fiscal quarter thereafter 3.25 to 1
10.04. Maximum Leverage Ratio. The Leverage Ratio of the
Company and its Subsidiaries on a consolidated basis, as determined as of the
last day of each fiscal quarter of the Company set forth below for the twelve
month period ending on such date, shall not be greater than the maximum amount
set forth opposite such fiscal quarter:
Fiscal Quarter Maximum Ratio
-------------- -------------
Third fiscal quarter of 1997 5.00 to 1
Fourth fiscal quarter of 1997 5.00 to 1
First fiscal quarter of 1998 5.00 to 1
Second fiscal quarter of 1998 5.00 to 1
Third fiscal quarter of 1998 5.00 to 1
Fourth fiscal quarter of 1998 4.75 to 1
First fiscal quarter of 1999 4.75 to 1
Second fiscal quarter of 1999 4.75 to 1
Third fiscal quarter of 1999 4.75 to 1
Fourth fiscal quarter of 1999 4.50 to 1
First fiscal quarter of 2000 4.50 to 1
Second fiscal quarter of 2000 4.50 to 1
Third fiscal quarter of 2000 4.50 to 1
Fourth fiscal quarter of 2000 4.00 to 1
First fiscal quarter of 2001 4.00 to 1
Second fiscal quarter of 2001 4.00 to 1
Third fiscal quarter of 2001 4.00 to 1
Fourth fiscal quarter of 2001 3.50 to 1
First fiscal quarter of 2002 3.50 to 1
Second fiscal quarter of 2002 3.50 to 1
Third fiscal quarter of 2002 3.50 to 1
Fourth fiscal quarter of 2002
and each fiscal quarter thereafter 3.00 to 1
10.05. Maximum Capital Expenditures. Capital Expenditures made
or incurred by the Company and its Subsidiaries on a consolidated basis during
each Fiscal Year set forth below shall not exceed in the aggregate the amount
set forth opposite such Fiscal Year:
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Fiscal Year Maximum Amount
----------- --------------
Fiscal Year 1997 $30,000,000
Fiscal Year 1998 30,000,000
Fiscal Year 1999 30,000,000
Fiscal Year 2000 30,000,000
Fiscal Year 2001 32,000,000
Fiscal Year 2002 34,000,000
Fiscal Year 2003 36,000,000;
provided, however, if the maximum amount set forth above opposite any Fiscal
Year exceeds the amount of Capital Expenditures made or incurred by the Company
and its Subsidiaries on a consolidated basis for such Fiscal Year, then Capital
Expenditures made or incurred by the Company and its Subsidiaries on a
consolidated basis for the succeeding Fiscal Year may exceed the maximum amount
set forth above opposite such succeeding Fiscal Year by the lesser of (i) 25% of
the maximum amount for the preceding Fiscal Year and (ii) the amount of such
excess from the immediately preceding Fiscal Year (such excess amount being
available only for use in such succeeding Fiscal Year but being treated as the
first amount spent in such succeeding Fiscal Year).
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.01. Events of Default. Each of the following occurrences
shall constitute an Event of Default hereunder:
(a) Failure to Make Payments When Due. Any Borrower shall fail
to pay (i) when due any principal or interest on the Loans (including the
Reimbursement Obligations) or (ii) any other Obligation, and (x) if such
non-payment relates to interest on the Loans (including the Reimbursement
Obligations), such non-payment continues for a period of three (3) Business Days
after the due date thereof and (y) if such non-payment relates to Obligations
other than interest or principal, such non-payment continues for a period of
five (5) Business Days after the due date thereof.
(b) Breach of Certain Covenants. Any Borrower or any
Subsidiary Guarantor shall fail to perform or observe duly and punctually any
agreement, covenant or obligation binding on such Person under (i) Sections
7.02, 7.03, 8.01, 8.02 or 8.06; or (ii) Article IX (other than Sections 9.08,
9.12, 9.16(i) and 9.19 and, solely with respect to Environmental Liens, Section
9.03) or Article X.
(c) Breach of Representation or Warranty. Any written
representation or warranty made or deemed made by any Borrower,
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any Subsidiary Guarantor or any other Subsidiary of the Borrower to the
Administrative Agent, the Co-Agents, any Lender or any Issuing Bank herein or in
any other Loan Document or in any written statement or certificate at any time
given by any such Person pursuant to any Loan Document shall be false or
misleading in any material respect on the date made (or deemed made).
(d) Other Defaults. Any Borrower shall default in the
performance of or compliance with any term contained herein (other than as
covered by paragraphs (a), (b) or (c) of this Section 11.01), or any Borrower or
any of its Subsidiaries shall default in the performance of or compliance with
any term contained in any other Loan Document, and such default shall continue
for (i) fifteen (15) Business Days after the occurrence thereof with respect to
any term contained in Sections 7.01, 7.05, 7.06, 8.07 or 9.08; and (ii) thirty
(30) days after the occurrence thereof with respect to any other term.
(e) Default as to Other Indebtedness; Operating Leases. Any
Borrower or any of the Domestic Subsidiaries shall fail to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) with respect to any Indebtedness (other than an Obligation) in excess
of a principal amount of $10,000,000; or any breach, default or event of default
shall occur, or any other condition shall exist under any instrument, agreement
or indenture pertaining to any such Indebtedness, if the effect thereof is to
cause an acceleration, mandatory redemption or other required repurchase of such
Indebtedness, or permit the holder(s) of such Indebtedness to accelerate the
maturity of such Indebtedness or require the redemption or other repurchase of
such Indebtedness; or any such Indebtedness shall be otherwise declared to be
due and payable (by acceleration or otherwise) or required to be prepaid,
redeemed or otherwise repurchased by such Borrower or any of the Domestic
Subsidiaries (other than by a regularly scheduled required prepayment, mandatory
redemption or required repurchase) prior to the stated maturity thereof; or any
material breach, default or event of default remaining uncured for a period of
thirty (30) days after notice from the applicable landlord or owner on the part
of such Borrower or any of the Domestic Subsidiaries shall occur under any
Operating Lease to which such Borrower or any of the Domestic Subsidiaries is a
party pursuant to which the annual rental payments of such Operating Lease equal
or exceed $1,000,000, unless such default under any such Operating Lease is
being contested in good faith by such Borrower or such Domestic Subsidiary, as
the case may be, by appropriate proceedings diligently instituted and conducted
and with respect to which appropriate reserves have been set aside therefor in
conformity with GAAP.
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(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company
or any of its Subsidiaries and the petition shall not be dismissed, stayed,
bonded or discharged within sixty (60) days after commencement of the case; or a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company or any of its Subsidiaries in an involuntary
case, under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be granted under any
applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over the Company or any of its
Subsidiaries or over all or a substantial part of the Property of the Company or
any of its Subsidiaries shall be entered; or an interim receiver, trustee or
other custodian of the Company or any of its Subsidiaries or of all or a
substantial part of the Property of the Company or any of its Subsidiaries shall
be appointed or a warrant of attachment, execution or similar process against
any substantial part of the Property of the Company or any of its Subsidiaries
shall be issued and any such event shall not be stayed, dismissed, bonded or
discharged within sixty (60) days after entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
Company or any of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or the Company or any of its Subsidiaries shall make any assignment
for the benefit of creditors.
(h) Judgments. Any judgment, writ, order or warrant of
attachment, or other similar process shall be rendered against any Borrower or
any of the Domestic Subsidiaries or any of their respective Properties involving
in any single case or in the aggregate an amount exceeding $10,000,000 in excess
of applicable insurance coverage is (are) entered and remains undischarged,
unvacated and unstayed for a period of sixty (60) days.
(i) Dissolution. Any order, judgment or decree shall be
entered against the Company or any of its Subsidiaries, decreeing its
involuntary dissolution or other similar
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proceeding, and such order shall remain undischarged and unstayed for a period
in excess of sixty (60) days; or any Borrower or any of the Domestic
Subsidiaries shall otherwise dissolve or cease to exist except as specifically
permitted hereby.
(j) Loan Documents; Failure of Security. At any time, for any
reason (i) any Loan Document ceases to be in full force and effect or the
Company or any of its Subsidiaries party thereto seeks to repudiate its
obligations thereunder and the Liens intended to be created thereby are, or the
Company or any such Subsidiary seeks to render such Liens, invalid or
unperfected, or (ii) Liens in favor of the Administrative Agent, the Co-Agents,
the Issuing Banks and/or the Lenders contemplated by the Loan Documents shall,
at any time, for any reason, be invalidated or otherwise cease to be in full
force and effect, or such Liens shall be subordinated or shall not have the
priority contemplated hereby or by the other Loan Documents.
(k) Termination Event. Any Termination Event occurs which the
Administrative Agent believes has or is reasonably likely to have a Material
Adverse Effect.
(l) Waiver of Minimum Funding Standard. If the plan
administrator of any Plan applies under Section 412(d) of the Internal Revenue
Code for a waiver of the minimum funding standards of Section 412(a) of the
Internal Revenue Code and the Administrative Agent believes the substantial
business hardship upon which the application for the waiver is based has or is
reasonably likely to have a Material Adverse Effect.
(m) Change of Control. A Change of Control shall occur.
A Default or an Event of Default shall be deemed "continuing" until cured or
until waived in accordance with Section 13.07; provided, however, a Default
under Sections 7.01, 7.04 or 7.06(c) arising from the failure of the Company to
deliver to the Administrative Agent any item required to be delivered pursuant
to such sections within the appropriate time period specified for such item
shall not be deemed "continuing" if the Administrative Agent has extended the
time period for the delivery of such item pursuant to the terms of such sections
and such time period has not expired.
11.02. Rights and Remedies.
(a) Acceleration and Termination. Upon the occurrence of any
Event of Default described in Sections 11.01(f) or 11.01(g) other than with
respect to a Subsidiary that is a Non-Guarantor Domestic Subsidiary or an
Foreign Subsidiary, the Revolving Credit Commitments shall automatically and
immediately terminate and the unpaid principal amount of, and any and all
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accrued interest on, the Obligations and all accrued fees shall automatically
become immediately due and payable, without presentment, demand, or protest or
other requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by the Borrowers;
and upon the occurrence and during the continuance of any other Event of Default
(including, without limitation, an Event of Default described in Sections
11.01(f) or 11.01(g) with respect to a Subsidiary that is a Non-Guarantor
Domestic Subsidiary or an Foreign Subsidiary), the Administrative Agent shall at
the request, or may with the consent, of the Requisite Lenders, by written
notice to the Company, (i) declare that all or any portion of the Revolving
Credit Commitments are terminated, whereupon the Revolving Credit Commitments
and the obligation of each Lender to make any Loan hereunder and of each Lender
or Issuing Bank to issue or participate in any Letter of Credit not then issued
shall immediately terminate, and/or (ii) declare the unpaid principal amount of
and any and all accrued and unpaid interest on the Obligations to be, and the
same shall thereupon be, immediately due and payable, without presentment,
demand, or protest or other requirements of any kind (including, without
limitation, valuation and appraisement, diligence, presentment, notice of intent
to demand or accelerate and of acceleration), all of which are hereby expressly
waived by the Borrowers.
(b) Deposit for Letters of Credit. In addition, after the
occurrence and during the continuance of an Event of Default, the Borrowers
shall, promptly upon demand by the Administrative Agent (given upon the written
instructions of the Requisite Lenders or, in the absence of such instructions,
in its sole discretion), deliver to the Administrative Agent, Cash Collateral in
such form and currency as requested by the Administrative Agent, together with
such endorsements, and execution and delivery of such documents and instruments
as the Administrative Agent may request in order to perfect or protect the
Administrative Agent's Lien with respect thereto, in an aggregate principal
amount equal to the then outstanding Letter of Credit Obligations.
(c) Rescission. If at any time after termination of the
Revolving Credit Commitments and/or acceleration of the maturity of the Loans,
the Borrowers shall pay all arrears of interest and all payments on account of
principal of the Loans and Reimbursement Obligations which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified herein) and all
Events of Default and Defaults (other than nonpayment of principal of and
accrued interest on the Loans due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant to Section 13.07, then upon the written
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consent of the Requisite Lenders and written notice to the Company, the
termination of the Revolving Credit Commitments and/or the acceleration and the
consequences of such termination and/or acceleration may be rescinded and
annulled; but such action shall not affect any subsequent Event of Default or
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders and the Issuing Banks
to a decision which may be made at the election of the Requisite Lenders; they
are not intended to benefit the Borrowers and do not give the Borrowers the
right to require the Lenders to rescind or annul any acceleration hereunder,
even if the conditions set forth herein are met.
(d) Enforcement. Each of the Borrowers acknowledges that in
the event such Borrower or any of its Subsidiaries fails to perform, observe or
discharge any of its respective obligations or liabilities hereunder or under
any other Loan Document, any remedy of law may prove to be inadequate relief to
the Administrative Agent, the Co-Agents, the Issuing Banks and the Lenders;
therefore, such Borrower agrees that the Administrative Agent, the Co-Agents,
the Issuing Banks and the Lenders shall be entitled after the occurrence and
during the continuance of an Event of Default to seek temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
ARTICLE XII
THE AGENTS
12.01. Appointment. (a) Each Lender and each Issuing Bank
hereby designates and appoints (i) Citicorp as the Administrative Agent and (ii)
First Chicago and GSCP as syndication agents hereunder, and each Lender and each
Issuing Bank hereby irrevocably authorizes the Administrative Agent to execute
such documents (including, without limitation, the Loan Documents to which the
Administrative Agent is a party) and irrevocably authorizes the Agents to take
such other action on such Person's behalf under the provisions hereof and of the
Loan Documents and to exercise such powers as are set forth herein or therein
together with such other powers as are reasonably incidental thereto. As to any
matters not expressly provided for hereby (including, without limitation,
enforcement or collection of the Notes or any amount payable under any provision
of Article III when due) or the other Loan Documents, none of the Agents shall
be required to exercise any discretion or take any action. Notwithstanding the
foregoing, the Administrative Agent shall be required to act or refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Requisite Lenders (unless the instructions or
consent of all of the Lenders is required hereunder or thereunder) and such
instructions shall be binding upon all
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Lenders, Issuing Banks and Holders; provided, however, the Administrative Agent
shall not be required to take any action which (i) the Administrative Agent
reasonably believes shall expose it to personal liability unless the
Administrative Agent receives an indemnification satisfactory to it from the
Lenders with respect to such action or (ii) is contrary hereto, to the other
Loan Documents or applicable law. The Agents agree to act as such on the express
conditions contained in this Article XII.
(b) The provisions of this Article XII are solely for the
benefit of the Agents, the Lenders and Issuing Banks, and none of the Borrowers
or any Subsidiary of the Company shall have any rights to rely on or enforce any
of the provisions hereof (other than as expressly set forth in Sections 12.07
and 12.09). In performing their respective functions and duties hereunder, each
of the Agents shall act solely as agent of the Lenders and the Issuing Banks and
does not assume and shall not be deemed to have assumed any obligation or
relationship of agency, trustee or fiduciary with or for the Borrowers or any
Subsidiary of the Company. The Agents may perform any of their respective duties
hereunder, or under the Loan Documents, by or through its agents or employees.
12.02. Nature of Duties. None of the Agents shall have any
duties or responsibilities except those expressly set forth herein or in the
Loan Documents. The duties of the Agents shall be mechanical and administrative
in nature. None of the Agents shall have by reason hereof a fiduciary
relationship in respect of any Holder. Nothing herein or in any of the Loan
Documents, expressed or implied, is intended to or shall be construed to impose
upon any Agent any obligations in respect hereof or any of the Loan Documents
except as expressly set forth herein or therein. Each Lender and each Issuing
Bank shall make its own independent investigation of the financial condition and
affairs of the Borrowers and their Subsidiaries in connection with the making
and the continuance of the Loans hereunder and with the issuance of the Letters
of Credit and shall make its own appraisal of the creditworthiness of the
Borrowers and their Subsidiaries initially and on a continuing basis, and none
of the Agents shall not have any duty or responsibility, either initially or on
a continuing basis, to provide any Holder with any credit or other information
with respect thereto (except for reports required to be delivered by any Agent
under the terms hereof). If any Agent seeks the consent or approval of any of
the Lenders to the taking or refraining from taking of any action hereunder,
such Agent shall send notice thereof to each Lender. The Administrative Agent
shall promptly notify each Lender at any time that the Lenders so required
hereunder have instructed any Agent to act or refrain from acting pursuant
hereto.
12.03. Rights, Exculpation, Etc. (a) Liabilities;
Responsibilities. None of the Agents or any Affiliate of any of
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the Agents, nor any of their respective officers, directors, employees or agents
shall be liable to any Holder for any action taken or omitted by them hereunder
or under any of the Loan Documents, or in connection therewith, except that no
Person shall be relieved of any liability imposed by law for gross negligence or
willful misconduct. None of the Agents shall be liable for any apportionment or
distribution of payments made by it in good faith pursuant to Section 3.02(b),
and if any such apportionment or distribution is subsequently determined to have
been made in error the sole recourse of any Holder to whom payment was due, but
not made, shall be to recover from other Holders any payment in excess of the
amount to which they are determined to have been entitled. None of the Agents
shall be responsible to any Holder for any recitals, statements, representations
or warranties herein or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility, or sufficiency hereof or of any of the
other Loan Documents or the transactions contemplated thereby, or for the
financial condition of the Borrowers or any of their Subsidiaries. None of the
Agents shall be required to make any inquiry concerning either the performance
or observance of any of the terms, provisions or conditions hereof or of any of
the Loan Documents or the financial condition of the Borrowers or any of their
Subsidiaries, or the existence or possible existence of any Default or Event of
Default.
(b) Right to Request Instructions. Any Agent may at any time
request instructions from the Lenders with respect to any actions or approvals
which by the terms of any of the Loan Documents such Agent is permitted or
required to take or to grant, and such Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from those Lenders from whom such Agent is required
to obtain such instructions for the pertinent matter in accordance with the Loan
Documents. Without limiting the generality of the foregoing, no Holder shall
have any right of action whatsoever against any Agent as a result of such Agent
acting or refraining from acting under the Loan Documents in accordance with the
instructions of the Requisite Lenders or, where required by the express terms
hereof, a greater proportion of the Lenders.
12.04. Reliance. The Agents shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents or any
telephone message believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining hereto or to any of the Loan Documents and its duties
hereunder or thereunder, upon advice of legal counsel (including
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counsel for the Borrowers), independent public accountants and other experts
selected by it.
12.05. Indemnification. To the extent that any Agent is not
reimbursed and indemnified by the Borrowers, the Lenders shall reimburse and
indemnify such Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against such Agent in any way relating to or arising out of the
Loan Documents or any action taken or omitted by such Agent under the Loan
Documents, in proportion to each Lender's Pro Rata Share; provided, however, the
Lenders shall have no obligation to such Agent with respect to the matters
indemnified pursuant to this Section resulting from the willful misconduct or
gross negligence of such Agent, as determined in a final, non-appealable
judgment by a court of competent jurisdiction. The obligations of the Lenders
under this Section 12.05 shall survive the payment in full of the Loans, the
Reimbursement Obligations and all other Obligations and the termination hereof.
12.06. Citicorp, First Chicago and GSCP Individually. With
respect to their respective Pro Rata Shares of the Revolving Credit Commitments
hereunder, if any, and the Loans made by each of them, if any, Citicorp, First
Chicago and GSCP shall each have and may exercise the same rights and powers
hereunder and are each subject to the same obligations and liabilities as and to
the extent set forth herein for any other Lender. The terms "Lenders" or
"Requisite Lenders" or any similar terms shall, unless the context clearly
otherwise indicates, include Citicorp, First Chicago and GSCP in their
respective individual capacities as a Lender or as one of the Requisite Lenders.
Citicorp, First Chicago, GSCP and their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking, trust
or other business with the Borrowers or any of their Subsidiaries as if Citicorp
were not acting as Administrative Agent pursuant hereto or First Chicago or GSCP
were not acting as Co-Agent pursuant hereto.
12.07. Successor Administrative Agent; Resignation of
Administrative Agent and Co-Agents. (a) Resignation. Any of the Co-Agents or the
Administrative Agent may resign from the performance of its respective functions
and duties hereunder at any time by giving at least thirty (30) Business Days'
prior written notice to the Company and the Lenders. The resignation of such
Co-Agent shall take effect upon the expiration of such thirty-day period. The
resignation of the Administrative Agent shall take effect upon the acceptance by
a successor Administrative Agent of appointment pursuant to this Section 12.07.
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(b) Appointment by Requisite Lenders. Upon any such notice of
resignation by the Administrative Agent, the Requisite Lenders shall have the
right to appoint a successor Administrative Agent selected from among the
Lenders which appointment shall be subject to the prior written approval of the
Company (which may not be unreasonably withheld, and shall not be required upon
the occurrence and during the continuance of an Event of Default). Upon any such
notice of resignation by either Co-Agent, no successor Co-Agent shall be
appointed.
(c) Appointment by Retiring Administrative Agent. If a
successor Administrative Agent shall not have been appointed within the thirty
(30) Business Day period provided in paragraph (a) of this Section 12.07, the
retiring Administrative Agent, with the consent of the Company (which may not be
unreasonably withheld, and shall not be required upon the occurrence and during
the continuance of an Event of Default), shall then appoint a successor
Administrative Agent who shall serve as Administrative Agent until such time, if
any, as the Requisite Lenders appoint a successor Administrative Agent as
provided above.
(d) Rights of the Successor and Retiring Administrative
Agents. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder thereafter
to be performed. After any retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Article XII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent hereunder.
12.08. Relations Among Lenders. Each Lender and each Issuing
Bank agrees that it shall not take any legal action, nor institute any actions
or proceedings, against the Borrowers or any other obligor hereunder or with
respect to any Collateral without the prior written consent of the Requisite
Lenders. Without limiting the generality of the foregoing, no Lender may
accelerate or otherwise enforce its portion of the Obligations, or terminate its
Revolving Credit Commitments except in accordance with Section 11.02(a) or a
setoff permitted under Section 13.05.
12.09. Concerning the Collateral and the Loan Documents. (a)
Protective Advances. The Administrative Agent may from time to time, after the
occurrence and during the continuance of an Event of Default, make such
disbursements and advances in Dollars pursuant to the Loan Documents which the
Administrative Agent, in its sole discretion, deems necessary or
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desirable to preserve or protect the Collateral or any portion thereof or to
enhance the likelihood or maximize the amount of repayment of the Loans and
other Obligations up to an amount not in excess of the lesser of the Revolving
Credit Availability at such time and $5,000,000 ("Protective Advances"). The
Administrative Agent shall notify the Company and each Lender in writing of each
such Protective Advance, which notice shall include a description of the purpose
of such Protective Advance. The Company agrees to pay the Administrative Agent,
upon demand, the principal amount of all outstanding Protective Advances,
together with interest thereon at the Base Rate applicable to the Loans from the
date of such Protective Advance until the outstanding principal balance thereof
is paid in full. If the Company fails to make payment in respect of any
Protective Advance within one (1) Business Day after the date the Company
receives written demand therefor from the Administrative Agent, the
Administrative Agent shall promptly notify each Lender and each Lender agrees
that it shall thereupon make available to the Administrative Agent, in Dollars
in immediately available funds, the amount equal to such Lender's Pro Rata Share
of such Protective Advance. If such funds are not made available to the
Administrative Agent by such Lender within one (1) Business Day after the
Administrative Agent's demand therefor, the Administrative Agent shall be
entitled to recover any such amount from such Lender together with interest
thereon at the Federal Funds Rate for each day during the period commencing on
the date of such demand and ending on the date such amount is received. The
failure of any Lender to make available to the Administrative Agent its Pro Rata
Share of any such Protective Advance shall neither relieve any other Lender of
its obligation hereunder to make available to the Agent such other Lender's Pro
Rata Share of such Protective Advance on the date such payment is to be made nor
increase the obligation of any other Lender to make such payment to the
Administrative Agent. All outstanding principal of, and interest on, Protective
Advances shall constitute Obligations secured by the Collateral until paid in
full by the Company.
(b) Authority. Each Lender and each Issuing Bank authorizes
and directs the Administrative Agent to enter into the Loan Documents relating
to the Collateral for the benefit of the Lenders and the Issuing Banks. Each
Lender and each Issuing Bank agrees that any action taken by the Administrative
Agent or the Requisite Lenders (or, where required by the express terms hereof,
a different proportion of the Lenders) in accordance with the provisions hereof
or of the other Loan Documents, and the exercise by the Administrative Agent or
the Requisite Lenders (or, where so required, such different proportion) of the
powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders and Issuing Banks. Without limiting the generality of the foregoing, the
Administrative
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Agent shall have the sole and exclusive right and authority to (i) act as the
disbursing and collecting agent for the Lenders and the Issuing Banks with
respect to all payments and collections arising in connection herewith and with
the Loan Documents relating to the Collateral; (ii) execute and deliver each
Loan Document relating to the Collateral and accept delivery of each such
agreement delivered by the Borrowers or any of their Subsidiaries; (iii) act as
collateral agent for the Lenders and the Issuing Banks for purposes of the
perfection of all security interests and Liens created by such agreements and
all other purposes stated therein, provided, however, the Administrative Agent
hereby appoints, authorizes and directs each Lender and each Issuing Bank to act
as collateral sub-agent for the Administrative Agent, the Co-Agents, the Lenders
and the Issuing Banks for purposes of the perfection of all security interests
and Liens with respect to the Company's and its Subsidiaries' respective deposit
accounts maintained with, and cash and Cash Equivalents held by, such Lender or
such Issuing Bank; (iv) manage, supervise and otherwise deal with the
Collateral; (v) take such action as is necessary or desirable to maintain the
perfection and priority of the security interests and liens created or purported
to be created by the Loan Documents; and (vi) except as may be otherwise
specifically restricted by the terms hereof or of any other Loan Document,
exercise all remedies given to the Administrative Agent, the Co-Agents, the
Lenders or the Issuing Banks with respect to the Collateral under the Loan
Documents relating thereto, applicable law or otherwise.
(c) Release of Collateral. (i) Each of the Co-Agents, the
Lenders, the Issuing Banks and the Holders hereby directs the Administrative
Agent to release any Lien held by the Administrative Agent for the benefit of
the Administrative Agent, the Co-Agents, the Lenders, the Issuing Banks and the
other Holders:
(A) against all of the Collateral, upon final payment in full
of the Obligations and termination hereof;
(B) against any part of the Collateral sold or disposed of by
the Borrowers or any of their Subsidiaries, if such sale or disposition
is permitted by Section 9.02 (or permitted pursuant to a waiver or
consent of a transaction otherwise prohibited by such Section) or, if
not pursuant to such sale or disposition, against any other part of the
Collateral if such release is consented to by Lenders whose Pro Rata
Shares, in the aggregate, are equal to 100%;
(C) against any of the Real Property listed on Schedule 9.02
at the request of the Company at any time on or after the Effective
Date; and
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(D) against the Rolodex Proceeds upon the consummation of the
private repurchase of shares pursuant to clause (i) of the definition
of Stock Repurchase, but only such amount thereof actually used by the
Company to redeem or repurchase its Common Stock.
(ii) Each of the Lenders and the Issuing Banks hereby directs
the Administrative Agent to execute and deliver or file such termination and
partial release statements and do such other things as are necessary to release
Liens to be released pursuant to this Section 12.09(c) promptly upon the
effectiveness of any such release.
(d) Confirmation by Lenders. Without in any manner limiting
the Administrative Agent's authority to act without any specific or further
authorization or consent by the Lenders (as set forth in subsection (c) above),
each Lender agrees to confirm in writing, upon request by the Company, the
authority to release Collateral conferred upon the Administrative Agent under
clauses (A) and (B) of subsection (c) above. So long as no Event of Default is
then continuing, upon receipt by the Administrative Agent of any such written
confirmation from the Lenders of the Administrative Agent's authority to release
any particular items or types of Collateral, and in any event upon any sale and
transfer of Collateral which is expressly permitted pursuant to the terms of
this Agreement, and upon at least five (5) Business Days' prior written request
by the Company, the Administrative Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be necessary to
evidence the release of the Liens upon such Collateral granted to the
Administrative Agent for the benefit of Administrative Agent, the Co-Agents, the
Lenders, the Issuing Banks and the other Holders; provided, however, that (i)
the Administrative Agent shall not be required to execute any such document on
terms which, in the Administrative Agent's opinion, would expose the
Administrative Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse or warranty,
and (ii) such release shall not in any manner discharge, affect or impair the
Obligations or any Liens upon (or obligations of the Borrowers or any of their
Subsidiaries in respect of) all interests retained by the Borrowers and/or any
of their Subsidiaries, including (without limitation) the proceeds of any sale,
all of which shall continue to constitute part of the Collateral.
(e) No Obligation. The Administrative Agent shall not have any
obligation whatsoever to any Lender or to any other Person to assure that the
Collateral exists or is owned by the Borrowers or any of their Subsidiaries or
is cared for, protected or insured or has been encumbered or that the Liens
granted to the Administrative Agent herein or pursuant to the Loan Documents
have been properly or sufficiently or lawfully created,
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perfected, protected or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to the Administrative Agent in this
Section 12.09 or in any of the Loan Documents, it being understood and agreed
that in respect of the Collateral, or any act, omission or event related
thereto, the Administrative Agent may act in any manner it may deem appropriate,
in its sole discretion, given the Administrative Agent's own interests in the
Collateral as one of the Lenders and that the Administrative Agent shall not
have any duty or liability whatsoever to any Lender.
(f) Collateral Matters Relating to Related Obligations. The
benefit of the Loan Documents and of the provisions of this Agreement relating
to the Collateral shall extend to and be available in respect of any Obligations
("Related Obligations") which arise under any Interest Rate Contracts or which
are otherwise owed to Persons other than the Administrative Agent, the
Co-Agents, the Lenders and the Issuing Banks, solely on the condition and
understanding, as among the Administrative Agent and all Holders, that (i) the
Related Obligations shall be entitled to the benefit of the Collateral to the
extent expressly set forth in this Agreement and the Loan Documents, and to such
extent the Administrative Agent shall hold, and have the right and power to act
with respect to, the Collateral on behalf of and as agent for the Holders of the
Related Obligations; but the Administrative Agent is otherwise acting solely as
agent for the Lenders and the Issuing Banks and shall have no fiduciary duty,
duty of loyalty, duty of care, duty of disclosure or other obligations
whatsoever to any Holder of Related Obligations; and (ii) all matters, acts and
omissions relating in any manner to the Collateral, or the omission, creation,
perfection, priority, abandonment or release of any Lien, shall be governed
solely by the provisions of this Agreement and the Loan Documents and no
separate Lien, right, power or remedy shall arise or exist in favor of any
Holder under any separate instrument or agreement or in respect of any Related
Obligations; and (iii) each Holder shall be bound by all actions taken or
omitted, in accordance with the provisions of this Agreement and the Loan
Documents, by the Administrative Agent and the Requisite Lenders, each of whom
shall be entitled to act at its sole discretion and exclusively in its own
interest given its own Revolving Credit Commitments and its own interest in the
Loans, Letter of Credit Obligations and other Obligations to it arising under
this Agreement or the other Loan Documents, without any duty or liability to any
other Holder or as to any Related Obligations and without regard to whether any
Related Obligations remain outstanding or are deprived of the benefit of the
Collateral or become unsecured or are otherwise affected or put in jeopardy
thereby; and (iv) no holder of Related Obligations and no other Holder (except
the Administrative Agent, the Co-
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Agents and the Lenders, to the extent set forth in this Agreement) shall have
any right to be notified of, or to direct, require or be heard with respect to,
any action taken or omitted in respect of the Collateral or under this Agreement
or the Loan Documents; and (v) no holder of any Related Obligations shall
exercise any right of setoff, banker's lien or similar right except as expressly
provided in Section 13.05.
ARTICLE XIII
MISCELLANEOUS
13.01. Assignments. (a) Assignments. No assignments or
participations of any Lender's rights or obligations hereunder shall be made
except in accordance with this Section 13.01. Subject to compliance with all
Requirements of Law, each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations hereunder (including all of its
rights and obligations with respect to the Revolving Loans and the Letters of
Credit) in accordance with the provisions of this Section 13.01.
(b) Limitations on Assignments. Each assignment by a Lender
shall be subject to the following conditions: (i) each assignment (other than to
a Lender or an Affiliate of a Lender) shall be approved by the Administrative
Agent and the Company, which approval shall not be unreasonably withheld; (ii)
each such assignment shall be to an Eligible Assignee; (iii) each such
assignment shall be in an amount at least equal to $5,000,000, except if the
Eligible Assignee is a Lender or an Affiliate of Lender or if such assignment
shall constitute all the assigning Lender's interest hereunder; (iv) any such
assignment (other than any such assignment to an Affiliate of the Assigning
Lender) shall consist of the simultaneous assignment of corresponding pro rata
portions of the assigning Lender's Revolving Credit Commitment and Revolving
Loans, and (v) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance. Upon such execution, delivery, acceptance and
recording in the Register, from and after the effective date specified in each
Assignment and Acceptance and agreed to by the Administrative Agent, (x) the
assignee thereunder shall, in addition to any rights and obligations hereunder
held by it immediately prior to such effective date, if any, have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and shall, to the fullest extent permitted by law, have the same
rights and benefits hereunder as if it were an original Lender hereunder and (y)
the assigning Lender shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations hereunder (and, in the case of
an Assignment and
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Acceptance covering all or the remaining portion of such assigning Lender's
rights and obligations hereunder, the assigning Lender shall cease to be a party
hereto).
(c) The Register. The Administrative Agent shall maintain at
its address referred to in Section 13.08 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Revolving
Credit Commitment under each Loan of, and principal amount of the Loans under
each facility owing to, each Lender from time to time and whether such Lender is
an original Lender or the assignee of another Lender pursuant to an Assignment
and Acceptance. The Register shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Borrowing made hereunder, (ii) the effective
date and amount of each Assignment and Acceptance delivered to and accepted by
it and the parties thereto, (iii) the amount of any principal or interest due
and payable or to become due and payable from the Borrowers to each Lender
hereunder or under the Notes, and (iv) the amount of any sum received by the
Administrative Agent from the Borrowers or any Subsidiary Guarantor hereunder
and each Lender's share thereof. The Administrative Agent shall deliver a
statement of such account to the Company whenever an Assignment and Acceptance
is accepted by it and the parties hereto; provided, however, the Administrative
Agent shall not be obligated to deliver such statement more frequently than once
a month. Each such statement shall be deemed final, binding and conclusive upon
the Borrowers in all respects as to all matters reflected therein (absent
manifest error) unless the Company, within thirty (30) days after the date such
statement is delivered to the Company, delivers to the Administrative Agent
written notice of any objections which the Company may have to any such
statement. In that event, only those items expressly objected to in such notice
shall be deemed to be disputed by the Company. The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and the
Company and each of its Subsidiaries, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes hereof. The Register shall be available for
inspection by the Borrowers or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance
executed by the assigning Lender and an Eligible Assignee and a processing and
recordation fee of $3,500 (payable by the assigning Lender or the assignee, as
shall be agreed between them), the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in compliance herewith and
in substantially the form of Exhibit A hereto, (i) accept such Assignment and
Acceptance, (ii) record the information
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contained therein in the Register and (iii) give prompt notice thereof to the
Company and the other Lenders.
(e) Information Regarding the Borrowers. Any Lender may, in
connection with any assignment or proposed assignment pursuant to this Section
13.01, disclose to the assignee or proposed assignee any information relating to
the Borrowers or their Subsidiaries furnished to such Lender by the
Administrative Agent or by or on behalf of the Borrowers; provided that, prior
to any such disclosure, such assignee or proposed assignee shall agree (for the
Borrowers' benefit) to preserve in accordance with Section 13.20 the
confidentiality of any information described therein.
(f) Lenders' Creation of Security Interests. Notwithstanding
any other provision set forth herein, any Lender may at any time create a
security interest in all or any portion of its rights hereunder (including,
without limitation, Obligations owing to it and Notes held by it) in favor of
any Federal Reserve bank in accordance with Regulation A.
(g) Assignments by an Issuing Bank. If any Issuing Bank ceases
to be a Lender hereunder by virtue of any assignment made pursuant to this
Section 13.01, then, as of the effective date of such cessation, such Issuing
Bank's obligations to issue Letters of Credit pursuant to Section 2.04 shall
terminate and such Issuing Bank shall be an Issuing Bank hereunder only with
respect to outstanding Letters of Credit issued prior to such date.
(h) Participations. Subject to compliance with all
Requirements of Law, each Lender may sell participations to one or more other
financial institutions in or to all or a portion of its rights and obligations
under and in respect of any and all facilities hereunder (including, without
limitation, all or a portion of any or all of its Revolving Credit Commitments
hereunder and the Loans owing to it and its undivided interest in the Letters of
Credit); provided, however, that (i) such Lender's obligations hereunder
(including, without limitation, its Revolving Credit Commitments hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
Borrowers, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations hereunder and (iv) such participant's rights to agree or to restrict
such Lender's ability to agree to the modification, waiver or release of any of
the terms of the Loan Documents or to the release of any Collateral covered by
the Loan Documents, to consent to any action or failure to act by any party to
any of the Loan Documents or any of their respective Subsidiaries or Affiliates,
or to exercise or refrain from exercising any powers or rights
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which any Lender may have under or in respect of the Loan Documents or any
Collateral, shall be limited to the right to consent to (A) reduction of the
principal of, or rate or amount of interest on the Loans(s) subject to such
participation (other than by the payment or prepayment thereof and excluding any
waiver of default interest pursuant to Section 4.01(d)), (B) postponement of any
scheduled date for any payment of principal of, or interest on, the Loan(s)
subject to such participation (except with respect to any modifications of the
application provisions relating to the prepayments of Loans and other
Obligations and any rescission of acceleration pursuant to Section 11.02(c)) and
(C) release of any Guarantor or all or any portion of the Collateral, except as
provided in Section 12.09(c) or in connection with the sale of all or
substantially all of the Capital Stock or Property of any Subsidiary Guarantor
or a merger of a Subsidiary Guarantor into another Subsidiary Guarantor or into
the Company, in each case approved by the Requisite Lenders. No holder of a
participation in all or any part of the Loans shall be a "Lender" or a "Holder"
for any purposes hereunder by reason of such participation; provided, however,
that each holder of a participation shall have the rights and obligations of a
Lender (including any right to receive payment) under Sections 3.03, 3.04,
4.01(f), 4.02(f), 12.05 and 13.02; provided, however, that all requests for any
such payments shall be made by a participant through the Lender granting such
participation. The right of each holder of a participation to receive payment
under Sections 3.03, 3.04, 4.01(f), 4.02(f) and 13.02 shall be limited to the
lesser of (i) the amounts actually incurred by such holder for which payment is
provided under said Sections and (ii) the amounts that would have been payable
under said Sections by the applicable Borrower to the Lender granting the
participation in respect of the participated interest to such holder had such
participation not been granted.
(i) Payment to Participants. Anything herein to the contrary
notwithstanding, in the case of any participation, all amounts payable by the
Borrowers under the Loan Documents shall be calculated and made in the manner
and to the parties required hereby as if no such participation had been sold.
(j) No Registration. Notwithstanding any other provisions of
this Section 13.01, no transfer or assignment of interests or obligations of any
Lender hereunder or any grant of participations therein shall be permitted if
such transfer, assignment or grant would require the Company or any Subsidiary
Guarantor to file a registration statement under the Securities Act with the
Securities and Exchange Commission or to qualify the Loans or the Notes under
the state securities or "Blue Sky" laws of any state. The approval of any
proposed assignee by the Company required by this Agreement shall not be deemed
to be unreasonably withheld if the approval of such Person would
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require any Loan or Note to be registered or qualified under any applicable
securities law.
(k) Investment Representation. Each Lender party to this
Agreement on the Effective Date hereby represents, and each Person that becomes
a Lender pursuant to an assignment permitted by this Section 13.01 will
represent, and shall be deemed to have represented, upon becoming a party to
this Agreement, to the Borrowers and each Subsidiary Guarantor and the other
parties to this Agreement that it is a commercial lender, other financial
institution regularly engaged in making commercial loans or an "accredited
investor" or "qualified institutional investor" (as defined in Regulation D and
Rule 144A, respectively, of the Securities Act) and that it will make or acquire
Loans hereunder for its own account in the ordinary course of its business.
(l) Notes Not Securities. Notwithstanding the foregoing
provisions of this Section 13.01, no provision of this Agreement shall be
construed to mean or imply that any Loan, any Note, the Revolving Credit
Commitments or any assignment thereof or grant of a participation therein is a
"security" under any applicable securities law.
13.02. Expenses.
(a) Generally. The Company agrees upon demand to pay, or
reimburse the Administrative Agent for, all of the Administrative Agent's
reasonable internal and external audit, legal, appraisal, valuation, filing,
document duplication and reproduction and investigation expenses and for all
other out-of-pocket costs and expenses of every type and nature (including,
without limitation, the reasonable fees, expenses and disbursements of the
Administrative Agent's counsel, Sidley & Austin, local legal counsel, auditors,
accountants, appraisers, printers, insurance and environmental advisers, and
other consultants and agents retained by the Administrative Agent, it being
understood that the Administrative Agent will discuss with the Company the
proposed use of a consultant or agent prior to seeking reimbursement for such
consultant's expense) incurred by the Administrative Agent in connection with
(A) the Administrative Agent's audit and investigation of the Company and the
Company's Subsidiaries in connection with the preparation, negotiation, and
execution of the Loan Documents and the Administrative Agent's periodic audits
of the Company or the Company's Subsidiaries; (B) the preparation, negotiation,
execution and interpretation hereof (including, without limitation, the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article V), the other Loan Documents and any proposal letter or commitment
letter issued in connection therewith and the making of the Loans hereunder; (C)
the creation, perfection or protection of the Liens under the Loan Documents
(including, without limitation, any reasonable fees and
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expenses for local counsel in various jurisdictions); (D) the ongoing
administration hereof and of the Loans, including consultation with attorneys in
connection therewith and with respect to the Administrative Agent's rights and
responsibilities hereunder and under the other Loan Documents; (E) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (F) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, the
Property of the Borrowers or any of the Domestic Subsidiaries, the Borrowers,
any of the Company's Subsidiaries, this Agreement or any of the other Loan
Documents; (G) the response to, and preparation for, any subpoena or request for
document production with which the Administrative Agent is served or deposition
or other proceeding in which the Administrative Agent is called to testify, in
each case, relating in any way to the Obligations, the Property of the Borrowers
or any of the Domestic Subsidiaries, the Borrowers, any of the Company's
Subsidiaries, this Agreement or any of the other Loan Documents; and (H) any
amendments, consents, waivers, assignments, restatements, or supplements to any
of the Loan Documents and the preparation, negotiation, and execution of the
same.
(b) After Default. The Company further agrees to pay or
reimburse the Administrative Agent, the Co-Agents, the Issuing Banks and the
Lenders upon demand for all out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of internal
counsel and costs of settlement), incurred by the Administrative Agent, the
Co-Agents, any Issuing Bank or any Lender after the occurrence of an Event of
Default (i) in enforcing any Loan Document or Obligation or any security
therefor or exercising or enforcing any other right or remedy available by
reason of any Event of Default; (ii) in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a
"work-out" or in any insolvency or bankruptcy proceeding; (iii) in commencing,
defending or intervening in any litigation or in filing a petition, complaint,
answer, motion or other pleadings in any legal proceeding relating to the
Obligations, the Property, the Borrowers or any of the Company's Subsidiaries
and related to or arising out of the transactions contemplated hereby or by any
of the other Loan Documents; and (iv) in taking any other action in or with
respect to any suit or proceeding (bankruptcy or otherwise) described in clauses
(i) through (iii) above.
13.03. Indemnities. (a) Each Borrower agrees to indemnify and
hold harmless the Administrative Agent, each Co- Agent, each Lender and each
Issuing Bank and their respective Affiliates (but excluding any Lender or
Affiliate of a Lender solely in such Lender's or Affiliate's capacity as an
underwriter of the Subordinated Notes), and the directors, officers, employees,
agents, partners, attorneys, consultants and advisors
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of or to any of the foregoing (including, without limitation, those retained in
connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article III) (each of the foregoing being and
"Indemnitee") from and against any and all claims, damages, liabilities,
obligations, losses, penalties, actions, judgments, suits, costs, disbursements
and expenses of any kind or nature (including, without limitation, reasonable
fees and disbursements of counsel to any such Indemnitee) which may be imposed
on, incurred by or asserted against any such Indemnitee in connection with or
arising out of any investigation, litigation or proceeding, whether or not any
such Indemnitee is a party thereto, whether direct, indirect, or consequential
and whether based on any federal, state or local law or other statutory
regulation, securities or commercial law or regulation, or under common law or
in equity, or on contract, tort or otherwise, in any manner relating to or
arising out of this Agreement, the Loan Documents, any Obligation, any Letter of
Credit, the issuance of the Subordinated Notes, the Stock Repurchase or any act,
event or transaction related or attendant to any thereof, including, without
limitation, (i) all Liabilities and Costs arising from or connected with the
past, present or future operations of such Borrower or any or its Subsidiaries
involving any Property subject to a Loan Document, or damage to real or personal
Property or natural resources or harm or injury alleged to have resulted from
any Release of Contaminants on, upon or into such Property or any other affected
real estate; (ii) any Liabilities or Costs incurred as a result of any Remedial
Action concerning such Borrower or any of its Subsidiaries; (iii) any
Liabilities or Costs incurred as a result of any Environmental Lien; (iv) any
Liabilities or Costs incurred pursuant to Environmental, Health and Safety
Requirements of Law, including, without limitation, CERCLA and applicable state
property transfer laws, whether, with respect to any of the foregoing, such
Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in
possession, the successor in interest to such Borrower or any of its
Subsidiaries, or the owner, lessee or operator of any Property of such Borrower
or any of its Subsidiaries by virtue of foreclosure, except, with respect to any
of the foregoing referred to in clauses (i), (ii), (iii) and (iv), to the extent
incurred following (x) foreclosure by the Administrative Agent, any Co-Agent any
Lender or any Issuing Bank, or (y) the Administrative Agent, any Co-Agent any
Lender or any Issuing Bank having become the successor in interest to such
Borrower or any of its Subsidiaries, attributable with respect to clauses (x)
and (y) solely to acts of the Administrative Agent, such Co-Agent, such Lender
or such Issuing Bank or any agent on behalf of the Administrative Agent, such
Co-Agent, such Lender or such or such Issuing Bank; (v) the use or intended use
of the proceeds of the Revolving Loans or Letters of Credit (collectively,
"Indemnified Matter"); or (vi) any action taken or omitted by any Indemnitee in
reliance on any notice or other written communication in the form of a telecopy
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or facsimile received hereunder by such Indemnitee; provided that such Borrower
shall not have any obligation under this Section 13.03 to an Indemnitee with
respect to any Indemnified Matter caused by or resulting from the gross
negligence or willful misconduct of that Indemnitee, as determined by a court of
competent jurisdiction in a final non-appealable judgment or order.
(b) Each Borrower shall indemnify the Administrative Agent,
the Co-Agents, the Lenders and the Issuing Banks for, and hold the
Administrative Agent, the Co-Agents, the Lenders and the Issuing Banks harmless
from and against, any and all claims for brokerage commissions, fees and other
compensation made against the Administrative Agent, the Co-Agents, the Lenders
and the Issuing Banks for any broker, finder or consultant with respect to any
agreement, arrangement or understanding made by or on behalf of such Borrower or
its Subsidiaries in connection with the transactions contemplated by this
Agreement.
(c) The Administrative Agent, each Co-Agent, each Lender and
each Issuing Bank agree that in the event that any such investigation,
litigation or proceeding set forth in subparagraph (a) above is asserted or
threatened in writing or instituted against it or any other Indemnitee, or any
Remedial Action is requested of it or any of its officers, directors, agents and
employees, for which any Indemnitee may desire indemnity or defense hereunder,
such Indemnitee shall promptly notify the Company in writing.
(d) Each Borrower, at the request of any Indemnitee, shall
have the obligation to defend against such investigation, litigation or
proceeding or requested Remedial Action, and such Borrower, in any event, may
participate in the defense thereof with legal counsel of the Company's choice.
In the event that such Indemnitee requests such Borrower to defend against such
investigation, litigation or proceeding or requested Remedial Action, such
Borrower shall promptly do so and such Indemnitee shall have the right to have
legal counsel chosen by such Indemnitee participate in such defense. No action
taken by legal counsel chosen by such Indemnitee in defending against any such
investigation, litigation or proceeding or requested Remedial Action shall
vitiate or in any way impair such Borrower's obligation and duty hereunder to
indemnify and hold harmless such Indemnitee.
(e) Each Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including,
without limitation, pursuant to this Section 13.03) or any other Loan Document
shall also inure to the benefit of any Person who was at any time an Indemnitee
under this Agreement or any other Loan Document.
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13.04. Change in Accounting Principles. If any change in the
accounting principles used in the preparation of the most recent financial
statements referred to in Section 7.01 is after the Effective Date required or
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the Company with the agreement of its independent certified
public accountants and such change results in a change in the method of
calculation of any of the covenants, standards or terms found in Article IX and
Article X, the parties hereto agree to enter into negotiations in order to amend
such provisions so as to equitably reflect such change with the desired result
that the criteria for evaluating compliance with such covenants, standards and
terms by the Company shall be the same after such change as if such change had
not been made; provided, however, no change in accounting principles that would
affect the method of calculation of any of the covenants, standards or terms
shall be given effect in such calculations until such provisions are amended, in
a manner satisfactory to the Requisite Lenders and the Company, to so reflect
such change in accounting principles and all references to GAAP in the defined
terms used in Article IX and Article X shall refer to GAAP as in effect on the
Effective Date or, if such provisions are amended, on the date such provisions
are amended.
13.05. Setoff. In addition to any Liens granted under the Loan
Documents and any rights now or hereafter granted under applicable law, upon the
occurrence and during the continuance of any Event of Default, and with the
prior written consent of the Requisite Lenders, each Lender, each Issuing Bank
and any Affiliate of any Lender or Issuing Bank is hereby authorized by the
Company at any time or from time to time, without notice to any Person (any such
notice being hereby expressly waived) to set off and to appropriate and to apply
any and all deposits (general or, to the extent permitted by law, special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured (but not including trust accounts)) and
any other Indebtedness at any time held or owing by such Lender, Issuing Bank or
any of their Affiliates to or for the credit or the account of any Borrower
against and on account of the Obligations of such Borrower to such Lender,
Issuing Bank or any of their Affiliates, including, but not limited to, all
Loans and Letters of Credit and all claims of any nature or description arising
out of or in connection herewith, irrespective of whether or not (i) such Lender
or Issuing Bank shall have made any demand hereunder or (ii) the Administrative
Agent, at the request or with the consent of the Requisite Lenders, shall have
declared the principal of and interest on the Loans and other amounts due
hereunder to be due and payable as permitted by Article XI and even though such
Obligations may be contingent or unmatured.
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13.06. Ratable Sharing. The Lenders and the Issuing Banks
agree among themselves that, except as otherwise expressly provided in any Loan
Document, (i) with respect to all amounts received by them which are applicable
to the payment of the Obligations (excluding (x) the fees described in Sections
2.04(g), 3.03, 3.04, 4.01(f) and 4.02 and (y) any amounts to received in respect
of Currency Agreements and/or Interest Rate Contracts) equitable adjustment
shall be made so that, in effect, all such amounts shall be shared among them
ratably in accordance with their Pro Rata Shares, whether received by voluntary
payment, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross-action or by the enforcement of any or all of such
Obligations (excluding the fees described in Sections 2.04(g), 3.03, 3.04,
4.01(f) and 4.02) or the Collateral, (ii) if any of them shall by voluntary
payment or by the exercise of any right of counterclaim, setoff, banker's lien
or otherwise, receive payment of a proportion of the aggregate amount of such
Obligations held by it which is greater than the amount which such Lender is
entitled to receive hereunder, the Lender receiving such excess payment shall
purchase, without recourse or warranty, an undivided interest and participation
(which it shall be deemed to have done simultaneously upon the receipt of such
payment) in such Obligations owed to the others so that all such recoveries with
respect to such Obligations shall be applied ratably in accordance with their
Pro Rata Shares; provided, however, that if all or part of such excess payment
received by the purchasing party is thereafter recovered from it, those
purchases shall be rescinded and the purchase prices paid for such participation
shall be returned to such party to the extent necessary to adjust for such
recovery, but without interest except to the extent the purchasing party is
required to pay interest in connection with such recovery. Each Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section 13.06 may, to the fullest extent permitted by law, exercise all its
rights of payment (including, subject to Section 13.05, the right of setoff)
with respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation.
13.07. Amendments and Waivers. (a) General Provisions. Unless
otherwise provided herein, no amendment or modification of any provision hereof
shall be effective without the written agreement of the Requisite Lenders and
the Borrowers, and no termination or waiver of any provision hereof, or consent
to any departure by the Borrowers therefrom, shall be effective without the
written concurrence of the Requisite Lenders, which the Requisite Lenders shall
have the right to grant or withhold in their sole discretion.
(b) Amendment, Consents and Waivers by all Lenders.
Notwithstanding the foregoing but subject to Section 11.02(c),
any amendment, modification, termination, waiver or consent with
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respect to any of the following provisions hereof shall be effective only by a
written agreement, signed by the Borrowers and each Lender:
(i) waiver of any of the conditions with respect to the making
or the extension of the maturities of Revolving Loans specified in
Section 5.01 or 5.02 (except with respect to a condition based upon
another provision hereof, the waiver of which requires only the
concurrence of the Requisite Lenders),
(ii) increase in the amount of any of the Revolving Credit
Commitments of any Lender,
(iii) reduction of the principal of, rate or amount of
interest on the Revolving Loans or Reimbursement Obligations or any
fees or other amounts payable to any Lender (excluding amounts so
payable pursuant to Sections 3.01(b) and any waiver of default interest
pursuant to Section 4.01(d)),
(iv) extension of the Revolving Credit Termination Date, any
postponement or waiver of any scheduled reduction of the Revolving
Credit Commitments pursuant to Section 3.01(c) or the postponement of
any date on which any scheduled payment of principal of, or interest
on, the Revolving Loans or Reimbursement Obligations or any fees or
other amounts payable to any Lender (excluding amounts so payable
pursuant to Sections 3.01(b)) would otherwise be due,
(v) release of any Guarantor (except in connection with the
sale of all or substantially all of the Capital Stock or Property of
any Subsidiary Guarantor or a merger of a Subsidiary Guarantor into
another Subsidiary Guarantor or into the Company, in each case approved
by the Requisite Lenders) or all or any portion of the Collateral
(except as provided in Section 12.09(c)),
(vi) change in the aggregate Pro Rata Share of the Lenders
which shall be required for the Lenders or any of them to take action
hereunder,
(vii) change in the definition of Requisite Lenders, or
(viii) amendment of Sections 12.09(c) or 13.06 or this Section
13.07.
The Administrative Agent may, but shall have no obligation to,
with the written concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it
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was given. No notice to or demand on the Borrowers in any case shall entitle the
Borrowers to any other or further notice or demand in similar or other
circumstances. Notwithstanding anything to the contrary contained in this
Section 13.07, no amendment, modification, waiver or consent shall affect the
rights or duties of any of the Agents hereunder or under the other Loan
Documents, including this Article XIII, unless made in writing and signed by the
Agent so affected in addition to the Lenders required above to take such action.
Notwithstanding anything herein to the contrary, in the event that any Borrower
shall have requested, in writing, that any Lender agree to an amendment,
modification, waiver or consent with respect to any particular provision or
provisions hereof, and such Lender shall have failed to state, in writing, that
it either agrees or disagrees (in full or in part) with all such requests (it
being understood that any such statement of agreement may be subject to
satisfactory documentation and other conditions specified in such statement)
within thirty (30) days of such request, then such Lender hereby irrevocably
authorizes the Administrative Agent to agree or disagree, in full or in part,
and in the Administrative Agent's sole discretion, to such requests on behalf of
such Lender as such Lender's attorney-in-fact and to execute and deliver any
writing approved by the Administrative Agent which evidences such agreement as
such Lender's duly authorized agent for such purposes.
13.08. Notices. Unless otherwise specifically provided herein,
any notice, consent or other communication herein required or permitted to be
given shall be in writing and may be personally served, telecopied, or sent by
courier service and shall be deemed to have been given when delivered in person
or by courier service, or upon receipt of a telecopy. Notices to the
Administrative Agent pursuant to Articles II or III shall not be effective until
received by the Administrative Agent. For the purposes hereof, the addresses of
the parties hereto (until notice of a change thereof is delivered as provided in
this Section 13.08) shall be as set forth below each party's name on the
signature pages hereof or the signature page of any applicable Assignment and
Acceptance, or, as to each party, at such other address as may be designated by
such party in a written notice to all of the other parties hereto.
13.09. Survival of Warranties and Agreements. All
representations and warranties made herein and all obligations of the Borrowers
in respect of taxes, indemnification and expense reimbursement shall survive the
execution and delivery hereof and of the other Loan Documents, the making and
repayment of the Loans, the issuance and discharge of Letters of Credit
hereunder and the termination hereof and shall not be limited in any way by the
passage of time or occurrence of any event and shall expressly cover time
periods when the Administrative Agent, either Co-Agent, any of the Issuing Banks
or any of the Lenders
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may have come into possession or control of any of the Borrowers' or their
Subsidiaries' Property; provided, however, all representations and warranties
made herein or in any other Loan Document by the Borrowers or any of their
Subsidiaries shall terminate when all Obligations (other than indemnities not
then due) have been paid in full and this Agreement has been terminated.
13.10. Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent, either Co-Agent any
Lender or any Issuing Bank in the exercise of any power, right or privilege
under any of the Loan Documents shall impair such power, right or privilege or
be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under the Loan Documents are cumulative to and not
exclusive of any rights or remedies otherwise available.
13.11. Marshalling; Payments Set Aside. None of the
Administrative Agent, either Co-Agent, any Lender or any Issuing Bank shall be
under any obligation to xxxxxxxx any Property in favor of the Borrowers or any
other party or against or in payment of any or all of the Obligations. To the
extent that any Borrower makes a payment or payments to the Administrative
Agent, the Co-Agents, the Lenders or the Issuing Banks or any of such Persons
receives payment from the proceeds of the Collateral or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party, then to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, right and
remedies therefor, shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or setoff had not occurred.
13.12. Severability. In case any provision in or obligation
hereunder or under the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
13.13. Headings. Section headings herein are included herein
for convenience of reference only and shall not constitute a part hereof or be
given any substantive effect.
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13.14. GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH
THE INTERNAL LAW OF THE STATE OF NEW YORK.
13.15. Limitation of Liability. No claim may be made by any
Borrower, any of the their Subsidiaries, any Lender, any Issuing Bank, any
Co-Agent, the Administrative Agent or any other Person against such Borrower,
any of the their Subsidiaries, the Administrative Agent, any Co-Agent, any other
Issuing Bank or any other Lender or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any special, consequential or
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
hereby, or any act, omission or event occurring in connection therewith; and the
Borrowers, each of the Borrowers' Subsidiaries, each Lender, each Issuing Bank,
each Co-Agent and the Administrative Agent hereby waives, releases and agrees
not to xxx upon any such claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
13.16. Successors and Assigns. This Agreement and the other
Loan Documents shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of the parties
hereto and the successors and permitted assigns of the Lenders and the Issuing
Banks. The rights hereunder and the interest herein of the Borrowers may not be
assigned without the written consent of all Lenders, except as otherwise
permitted hereunder. Any attempted assignment without such written consent shall
be void.
13.17. Certain Consents and Waivers.
(a) Personal Jurisdiction. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, (i) EACH OF THE ADMINISTRATIVE AGENT, THE CO-AGENTS, THE
LENDERS, THE ISSUING BANKS AND THE BORROWERS IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE COURT OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY
COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY
ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT,
WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD
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AND DETERMINED IN SUCH STATE COURT OR IN SUCH FEDERAL COURT. EACH BORROWER
IRREVOCABLY DESIGNATES AND APPOINTS PRENTICE HALL CORPORATION AT 00 XXXXXXXX
XXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS RESPECTIVE PROCESS AGENT (THE "PROCESS
AGENT") FOR SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT. EACH OF THE ADMINISTRATIVE AGENT, THE CO-AGENTS, THE LENDERS, THE
ISSUING BANKS AND THE BORROWERS AGREES THAT A FINAL NONAPPEALABLE JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
EACH OF THE ADMINISTRATIVE AGENT, THE CO- AGENTS, THE LENDERS, THE ISSUING BANKS
AND THE BORROWERS WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT CONSIDERING THE DISPUTE IN ANY SUCH ACTION OR PROCEEDING
IN SUCH STATE COURT OR IN SUCH FEDERAL COURT.
(ii) EACH BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL
HAVE THE RIGHT TO PROCEED AGAINST THE SUBSIDIARY GUARANTORS, THE BORROWERS OR
THEIR RESPECTIVE PROPERTY IN A COURT HAVING JURISDICTION IN ANY LOCATION TO
ENABLE THE ADMINISTRATIVE AGENT, THE CO-AGENTS, THE ISSUING BANKS AND THE
LENDERS TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS,
OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT, ANY CO-AGENT, ANY ISSUING BANK OR ANY LENDER. EACH
BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN
WHICH THE ADMINISTRATIVE AGENT, ANY CO-AGENT ANY ISSUING BANK OR ANY LENDER MAY
COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) SERVICE OF PROCESS. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW: EACH BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
PROCESS AGENT OR SUCH BORROWER'S NOTICE ADDRESS SPECIFIED PURSUANT TO SECTION
13.08, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING. EACH
OF THE ADMINISTRATIVE AGENT, CO-AGENTS, LENDERS, ISSUING BANKS AND THE BORROWERS
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER
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LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT TO BRING PROCEEDINGS AGAINST THE BORROWERS
IN THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE
AGENT, CO-AGENTS, THE ISSUING BANKS, THE LENDERS AND THE BORROWERS IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT.
13.18. Counterparts; Effectiveness; Inconsistencies. This
Agreement and any amendments, waivers, consents, or supplements hereto may be
executed in counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. This Agreement and each of the other Loan Documents
shall be construed to the extent reasonable to be consistent one with the other,
but to the extent that the terms and conditions hereof are actually inconsistent
with the terms and conditions of any other Loan Document, this Agreement shall
govern. On the Effective Date, the Existing Credit Agreement shall be amended
and restated in its entirety by this Agreement and the Existing Credit Agreement
shall thereafter be of no further force and effect; provided that if the
Effective Date shall not have occurred on or prior to August 31, 1997, this
Agreement will terminate and will be of no further force and effect. The terms
and conditions of this Agreement and the Administrative Agent's and the Lenders'
rights and remedies under this Agreement, shall apply to all of the Obligations
incurred under the Existing Credit Agreement. It is expressly understood and
agreed by the parties hereto that this Agreement is in no way intended to
constitute a novation of the obligations and liabilities existing under the
Existing Credit Agreement or evidence payment of all or any of such obligations
and liabilities. The Company reaffirms the Liens granted to the Administrative
Agent for the benefit of the Lenders pursuant to each of the Loan Documents
executed by the Company, which Liens shall continue in full force and effect
during the term of this Agreement and any renewals thereof and shall continue to
secure the Obligations identified in such Loan Documents. All references to the
Existing Credit Agreement in the Loan Documents shall be deemed to refer to this
Agreement. This Agreement and each of the other Loan Documents shall be
construed to the extent reasonable to be consistent one with the other, but to
the extent that the terms and conditions of this Agreement are actually
inconsistent with the terms and conditions of any other Loan Document, this
Agreement shall govern.
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13.19. Limitation on Agreements. All agreements between the
Borrowers, the Administrative Agent, each Co-Agent, each Lender and each Issuing
Bank in the Loan Documents are hereby expressly limited so that in no event
shall any of the Loans or other amounts payable by the Borrowers under any of
the Loan Documents be directly or indirectly secured (within the meaning of
Regulation U) by Margin Stock.
13.20. Confidentiality. Subject to Section 13.01(e), the
Administrative Agent, the Co-Agents, the Lenders and the Issuing Banks shall
hold all nonpublic information obtained pursuant to the requirements hereof in
accordance with such Person's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices and in any event may make disclosure reasonably required by a bona
fide offeree or assignee (or participant) in connection with the contemplated
transfer (or participation), or as required or requested by any Governmental
Authority or representative thereof, or pursuant to legal process, or to its
accountants, lawyers and other advisors, and shall require any such offeree or
assignee (or participant) to agree (and require any of its offerees, assignees
or participants to agree) to comply with this Section 13.20. In no event shall
the Administrative Agent, any Co-Agent, any Lender or any Issuing Bank be
obligated or required to return any materials furnished by the Borrowers;
provided, however, each offeree shall be required to agree that if it does not
become a assignee (or participant) it shall return all materials furnished to it
by the Borrowers in connection herewith.
13.21. Entire Agreement. This Agreement, taken together with
all of the other Loan Documents, embodies the entire agreement and understanding
among the parties hereto and supersedes the commitment letter dated June 24,
1997 from Citicorp and Citicorp Securities and accepted and agreed to by the
Company on June 25, 1997 and all prior agreements and understandings, written
and oral (other than the Letter Agreement which constitutes a Loan Document),
relating to the subject matter hereof.
-159-
161
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first above written.
INSILCO CORPORATION
By: /s/ Xxxxx X. Xxxxx
__________________________________
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
Notice Address:
Insilco Corporation
000 Xxxxx Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx
Vice President and Treasurer
Telecopier No. (000) 000-0000
Confirmation No. (000) 000-0000
with a copy to:
Insilco Corporation
000 Xxxxx Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxx
General Counsel
Telecopier No. (000) 000-0000
Confirmation No. (000) 000-0000
Xxxxxx, Xxxxxx Xxxxxx & Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier No. (000) 000-0000
Confirmation No. (000) 000-0000
S-1
162
CITICORP USA, INC., as Administrative
Agent and Lender
By: /s/ Xxxxx Xxxxxxxxx
__________________________
Name: Xxxxx Xxxxxxxxx
Title: Attorney-in-Fact
CITIBANK, N.A., as Issuing Bank
By: /s/ Xxxxx Xxxxxxxxx
___________________________
Name: Xxxxx Xxxxxxxxx
Title: Attorney-in-Fact
Revolving Credit
Commitment: $66,666,666.67
Notice Address:
Citicorp USA, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
with a copy to:
Citicorp Securities, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx 4
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Citibank International plc
000 Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Loans Agency
Telecopier No.: 011-44171-500-4482
Confirmation No.: 011-44171-500-4247
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
X-0
000
XXXXXXX XXXXX CREDIT PARTNERS L.P., as
Co-Agent and Lender
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
Revolving Credit
Commitment: $66,666,666.67
Notice Address:
Xxxxxxx Xxxxx Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
S-3
164
THE FIRST NATIONAL BANK OF CHICAGO, as
Co-Agent and Lender
By: /s/ Xxxxxxxxx X. Xxxxx
____________________________
Name: Xxxxxxxxx X. Xxxxx
Title: Authorized Agent
Revolving Credit
Commitment: $66,666,666.66
Notice Address:
The First National Bank of Chicago
Suite 0088
One First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
S-4
165
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms....................................... 1
1.02. Computation of Time Periods................................. 38
1.03. Accounting Terms............................................ 39
1.04. Other Definitional Provisions............................... 39
1.05. Other Terms................................................. 39
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.01. The Term Loans.............................................. 39
2.02. Revolving Credit Facility................................... 41
2.03. Swing Loans................................................. 44
2.04. Letters of Credit........................................... 46
2.05. Promise to Repay; Evidence of Indebtedness.................. 53
2.06. Authorized Officers and Agents.............................. 54
2.07. Designation of Foreign Borrowers............................ 54
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.01. Prepayments; Reductions in Revolving Credit
Commitments...................................... 55
3.02. Payments ................................................. 58
3.03. Taxes ................................................. 63
3.04. Increased Capital........................................... 66
3.05. Cash Management............................................. 67
3.06. Right to Remove Affected Lender............................. 68
ARTICLE IV
INTEREST AND FEES
4.01. Interest on the Loans and Other Obligations................. 69
4.02. Special Provisions Governing Eurocurrency Rate
Loans............................................ 73
4.03. Fees ................................................. 76
ARTICLE V
CONDITIONS TO LOANS AND LETTERS OF CREDIT
5.01. Conditions Precedent to the Initial Loans and
Letters of Credit........................................... 78
5.02. Conditions Precedent to All Subsequent Revolving
Loans, Swing Loans and Letters of Credit.................... 80
(i)
166
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the Borrower.............. 82
ARTICLE VII
REPORTING COVENANTS
7.01. Financial Statements........................................ 93
7.02. Notice of Events of Default................................. 95
7.03. Lawsuits ................................................. 95
7.04. Insurance ................................................. 96
7.06. Environmental Notices....................................... 98
7.07. Labor Matters............................................... 99
7.08. Public Filings and Reports.................................. 99
7.09. Bank Accounts............................................... 99
7.10. Other Information...........................................100
ARTICLE VIII
AFFIRMATIVE COVENANTS
8.01. Corporate Existence, Etc....................................100
8.02. Corporate Powers; Conduct of Business, Etc..................100
8.03. Compliance with Laws, Etc...................................101
8.04. Payment of Taxes and Claims; Tax Consolidation..............101
8.05. Insurance .................................................101
8.06. Inspection of Property; Books and Records;
Discussions.................................................102
8.07. Insurance and Condemnation Proceeds.........................102
8.08. ERISA Compliance............................................104
8.09. Foreign Employee Benefit Plan Compliance....................104
8.10. Maintenance of Property.....................................104
8.11. Condemnation................................................104
8.12. Future Liens on Real Property...............................105
8.13. Future Liens on Personal Property...........................105
8.14. Landlord Waivers............................................106
8.15. Environmental Compliance....................................106
8.16. Post-Closing Matters........................................107
8.17. Permitted Acquisitions......................................107
ARTICLE IX
NEGATIVE COVENANTS
9.01. Indebtedness................................................108
9.02. Sales of Assets.............................................110
9.03. Liens .................................................112
9.04. Investments.................................................113
9.05. Accommodation Obligations...................................114
9.06. Restricted Junior Payments..................................115
9.07. Conduct of Business.........................................115
9.08. Transactions with Affiliates................................116
9.09. Restriction on Fundamental Changes..........................116
(ii)
167
9.10. Sales and Leasebacks........................................117
9.11. Margin Regulations; Securities Laws.........................117
9.12. ERISA .................................................117
9.13. Issuance or Sale of Capital Stock...........................118
9.14. Constituent Documents.......................................118
9.15. Fiscal Year.................................................118
9.16. Cancellation of Debt; Prepayment; Certain
Amendments..................................................118
9.17. Environmental Matters.......................................119
9.18. Foreign Subsidiary..........................................119
9.19. No New Restrictions on Subsidiary Dividends.................119
9.20. Accounting Changes..........................................119
ARTICLE X
FINANCIAL COVENANTS
10.01. Minimum Consolidated Net Worth.............................120
10.02. Minimum Fixed Charge Coverage Ratio........................122
10.03. Minimum Interest Coverage Ratio............................120
10.04. Maximum Leverage Ratio.....................................120
10.05. Maximum Capital Expenditures...............................122
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.01. Events of Default..........................................123
11.02. Rights and Remedies........................................126
ARTICLE XII
THE AGENT
12.01. Appointment................................................128
12.02. Nature of Duties...........................................128
12.03. Rights, Exculpation, Etc...................................129
12.04. Reliance .................................................130
12.05. Indemnification............................................130
12.06. Citicorp, First Chicago and GSCP Individually..............130
12.07. Successor Administrative Agent; Resignation of
Administrative Agent and Co-Agents.........................131
12.08. Relations Among Lenders....................................132
12.09. Concerning the Collateral and the Loan
Documents..................................................132
ARTICLE XIII
MISCELLANEOUS
13.01. Assignments................................................136
13.02. Expenses .................................................140
13.03. Indemnities................................................142
13.04. Change in Accounting Principles............................144
13.05. Setoff .................................................144
13.06. Ratable Sharing............................................145
(iii)
168
13.07. Amendments and Waivers.....................................145
13.08. Notices .................................................147
13.09. Survival of Warranties and Agreements......................147
13.10. Failure or Indulgence Not Waiver; Remedies
Cumulative.................................................148
13.11. Marshalling; Payments Set Aside............................148
13.12. Severability...............................................148
13.13. Headings .................................................149
13.14. Governing Law..............................................149
13.15. Limitation of Liability....................................149
13.16. Successors and Assigns.....................................149
13.17. Certain Consents and Waivers...............................149
13.18. Counterparts; Effectiveness; Inconsistencies...............151
13.19. Limitation on Agreements...................................151
13.20. Confidentiality............................................151
13.21. Entire Agreement...........................................151
(iv)
169
EXHIBITS
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Collection Account Agreement
Exhibit C -- Form of Notice of Borrowing
Exhibit D -- Form of Notice of Continuation/Conversion
Exhibit E -- List of Closing Documents
Exhibit F -- Form of Officer's Certificate to Accompany
Reports
Exhibit G -- Form of Monthly Report
Exhibit H -- Form of Revolving Credit Note
Exhibit I -- Form of Swing Loan Note
Exhibit J -- Form of Intercompany Note
Exhibit K -- Form of Foreign Borrower Assumption Agreement
SCHEDULES
Schedule 1.01.1 -- Permitted Existing Accommodation
Obligations
Schedule 1.01.2 -- Permitted Existing Indebtedness
Schedule 1.01.3 -- Permitted Existing Investments
Schedule 1.01.4 -- Permitted Existing Liens
Schedule 6.01-C -- Corporate Structure
Schedule 6.01-D -- Conflicts with Contractual Obligations
Schedule 6.01-E -- Governmental Consents
Schedule 6.01-I -- Litigation
Schedule 6.01-K -- Taxes
Schedule 6.01-O -- Environmental Matters
Schedule 6.01-P -- ERISA Matters
Schedule 6.01-R -- Collective Bargaining Agreements
Schedule 6.01-U -- Intellectual Property Infringement Claims
Schedule 6.01-V -- Real Property
Schedule 6.01-W -- Insurance Policies and Programs
Schedule 6.01-Y -- Transactions with Affiliates
Schedule 6.01-Z -- Collection Account Banks; Bank Accounts
Schedule 9.02 -- Properties to be Sold
Schedule 9.13 -- Management Incentive Plans
Schedule 9.16 -- Intercompany Indebtedness
Schedule 9.18 -- Permitted Accommodation Obligations and
Liens of Foreign Subsidiaries
(v)
