EXECUTION COPY
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$105,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Among
FLAVORS HOLDINGS INC.,
PNEUMO ABEX CORPORATION,
The Several Lenders
from Time to Time Parties Hereto,
BNP Paribas, as Documentation Agent,
and
THE CHASE MANHATTAN BANK, as Paying Agent
Dated as of April 17, 2001
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JPMORGAN and CREDIT SUISSE FIRST BOSTON,
as Co-Administrative Agents and Joint Bookrunners
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS............................................1
1.1 Defined Terms...........................................1
1.2 Other Definitional Provisions..........................19
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................19
2.1 Term Commitments.......................................19
2.2 Procedure for Term Loan Borrowing......................19
2.3 Repayment of Term Loans................................20
2.4 Revolving Commitments..................................20
2.5 Procedure for Revolving Loan Borrowing.................21
2.6 Commitment Fees, etc...................................21
2.7 Termination or Reduction of Revolving Commitments......21
2.8 Optional Prepayments...................................21
2.9 Mandatory Prepayments..................................22
2.10 Conversion and Continuation Options...................22
2.11 Limitations on Eurodollar Tranches....................23
2.12 Interest Rates and Payment Dates......................23
2.13 Computation of Interest and Fees......................24
2.14 Inability to Determine Interest Rate..................24
2.15 Pro Rata Treatment and Payments.......................24
2.16 Requirements of Law...................................26
2.17 Taxes.................................................27
2.18 Indemnity.............................................28
2.19 Change of Lending Office..............................29
2.20 Replacement of Lenders................................29
SECTION 3. LETTERS OF CREDIT.....................................29
3.1 L/C Commitment.........................................29
3.2 Procedure for Issuance of Letter of Credit.............30
3.3 Fees and Other Charges.................................30
3.4 L/C Participations.....................................30
3.5 Reimbursement Obligation of the Borrower...............31
3.6 Obligations Absolute...................................31
3.7 Letter of Credit Payments..............................32
3.8 Applications...........................................32
SECTION 4. REPRESENTATIONS AND WARRANTIES........................32
4.1 Financial Condition....................................32
4.2 No Change..............................................33
4.3 Existence; Compliance with Law.........................33
4.4 Power; Authorization; Enforceable Obligations..........33
4.5 No Legal Bar...........................................33
4.6 Litigation.............................................34
4.7 No Default.............................................34
4.8 Ownership of Property; Liens...........................34
4.9 Intellectual Property..................................34
4.10 Taxes.................................................34
4.11 Federal Regulations...................................35
4.12 Labor Matters.........................................35
4.13 ERISA.................................................35
4.14 Investment Company Act; Other Regulations.............35
4.15 Subsidiaries..........................................35
4.16 Use of Proceeds.......................................36
4.17 Environmental Matters.................................36
4.18 Accuracy of Information, etc..........................37
4.19 Security Documents....................................37
4.20 Solvency..............................................38
4.21 Regulation H..........................................38
4.22 Certain Documents.....................................38
SECTION 5. CONDITIONS PRECEDENT..................................38
5.1 Conditions to Effectiveness............................38
5.2 Conditions to Each Extension of Credit.................41
SECTION 6. AFFIRMATIVE COVENANTS.................................41
6.1 Financial Statements...................................41
6.2 Certificates; Other Information........................42
6.3 Payment of Obligations.................................43
6.4 Maintenance of Existence; Compliance...................43
6.5 Maintenance of Property; Insurance.....................43
6.6 Inspection of Property; Books and Records; Discussions.43
6.7 Notices................................................44
6.8 Environmental Laws.....................................44
6.9 Additional Collateral, etc.............................45
SECTION 7. NEGATIVE COVENANTS....................................46
7.1 Financial Covenants....................................46
7.2 Limitation on Liens....................................47
7.3 Limitation on Guarantee Obligations....................48
7.4 Limitation on Fundamental Changes......................49
7.5 Limitation on Sale of Assets...........................49
7.6 Limitation on Restricted Payments......................50
7.7 Limitation on Investments, Loans and Advances..........50
7.8 Sale and Leaseback.....................................51
7.9 Limitation on Transactions with Affiliates.............51
7.10 Indebtedness. Create, incur or suffer to exist any
Indebtedness except:..................................51
7.11 Limitation on Modifications of Tax Allocation Agreement52
7.12 Limitation on Negative Pledge Clauses.................52
7.13 Limitation on Lines of Business.......................52
7.14 Limitation on Restrictions on Subsidiary Distributions52
7.15 Amendments to Acquisition Documents...................53
SECTION 8. EVENTS OF DEFAULT.....................................53
SECTION 9. THE AGENTS............................................56
9.1 Appointment............................................56
9.2 Delegation of Duties...................................56
9.3 Exculpatory Provisions.................................56
9.4 Reliance by Paying Agent...............................56
9.5 Notice of Default......................................57
9.6 Non-Reliance on Agents and Other Lenders...............57
9.7 Indemnification........................................58
9.8 Agent in Its Individual Capacity.......................58
9.9 Successor Paying Agent.................................58
9.10 Documentation Agent...................................59
SECTION 10. MISCELLANEOUS........................................59
10.1 Amendments and Waivers................................59
10.2 Notices...............................................60
10.3 No Waiver; Cumulative Remedies........................60
10.4 Survival of Representations and Warranties............61
10.5 Payment of Expenses and Taxes.........................61
10.6 Successors and Assigns; Participations and Assignments62
10.7 Adjustments; Set-off..................................64
10.8 Counterparts..........................................64
10.9 Severability..........................................65
10.10 Integration..........................................65
SECTION 10.11. GOVERNING LAW...............................65
10.12 Submission To Jurisdiction; Waivers..................65
10.13 Acknowledgements.....................................65
10.14 Releases of Guarantees and Liens.....................66
10.15 Confidentiality......................................66
SECTION 10.16. WAIVERS OF JURY TRIAL.......................67
ANNEX:
A Pricing Grid
SCHEDULES:
1.1A Commitments
1.1B Mortgaged Property
4.4 Consents, Authorizations, Filings and Notices
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
7.2(l) Existing Liens
7.9 Transaction Agreements
7.10(c) Existing Indebtedness
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
F-2 Form of Legal Opinion of Xxxxxxx, Del Deo, Dolan,
Griffinger & Xxxxxxxxx, P.C.
F-3 Form of Legal Opinion of McCanlish Kaine & Grant, P.C.
F-4 Form of Legal Opinion of Xxxxxxxx Xxxxxxx & XxxXxxxx
G Form of Exemption Certificate
AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"), dated as
of April 17, 2001, among FLAVORS HOLDINGS INC., a Delaware corporation
("Holdings"), PNEUMO ABEX CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "Lenders"), BNP PARIBAS,
as documentation agent (in such capacity, the "Documentation Agent"), and
THE CHASE MANHATTAN BANK ("Chase"), as paying agent.
WHEREAS, the Borrower entered into the Credit Agreement, dated as
of November 17, 1997, as amended through the date hereof (the "Existing
Credit Agreement"), with the several banks and other financial institutions
or entities parties thereto, the documentation agent named therein and The
Chase Manhattan Bank, as administrative agent;
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Credit Agreement as provided in this Agreement, which Agreement
shall become effective upon the satisfaction of certain conditions
precedent set forth in Section 5.1 hereof; and
WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation of the obligations and liabilities
existing under the Existing Credit Agreement or evidence repayment of any
of such obligations and liabilities and that this Agreement amend and
restate in its entirety the Existing Credit Agreement and re-evidence the
obligations of the Borrower outstanding thereunder;
NOW, THEREFORE, in consideration of the above premises, the
parties hereto hereby agree that on the Closing Date (as defined below) the
Existing Credit Agreement shall be amended and restated in its entirety as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this
Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day plus
1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For the purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Paying Agent
as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by
the Paying Agent in connection with extensions of credit to debtors); "Base
CD Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the CD Reserve Percentage and (b) the
CD Assessment Rate; and "Three-Month Secondary CD Rate" shall mean, for any
day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the
public information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following
such day), or, if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in New
York City received at approximately 10:00 A.M., New York City time, on such
day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Paying Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it. Any
change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective as
of the opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Acquisition": the acquisition by PVI Acquisition of all of the
common stock of Panavision owned by the Seller (representing approximately
83% of the total outstanding amount thereof) (the "Panavision Shares"), for
a purchase price of approximately $130,000,000, of which no more than
$80,000,000 shall be paid in cash and the remainder shall be paid in the
form of Capital Stock of M&F Worldwide.
"Acquisition Agreement": means the Stock Purchase
Agreement, dated as of April 19, 2001, by and between the Seller
and M&F Worldwide.
"Acquisition Documentation": collectively, the Acquisition
Agreement and all schedules, exhibits and annexes thereto and all side
letters and agreements affecting the terms thereof or entered into in
connection therewith, including the Registration Rights Documentation.
"Adjustment Date": as defined in the Pricing Grid.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct or
cause the direction of the management and policies of such Person, whether
by contract or otherwise.
"Agents": the collective reference to the Documentation Agent and
the Paying Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to the sum of (a) the aggregate then unpaid principal amount
of such Lender's Term Loans and (b) the amount of such Lender's Revolving
Commitment then in effect or, if the Revolving Commitments have been
terminated, the amount of such Lender's Revolving Extensions of Credit then
outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such
time.
"Agreement": as defined in the preamble hereto.
"Applicable Margin": (a) 2.50% in the case of ABR Loans and (b)
3.50% in the case of Eurodollar Loans; provided, that on and after the
first Adjustment Date occurring after September 30, 2001, the Applicable
Margin will be determined pursuant to the Pricing Grid.
"Application": an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to open a
Letter of Credit.
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by
clause (a), (b), (c), (d) or (e) of Section 7.5) that yields gross proceeds
to any Group Member (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in
excess of $1,000,000.
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit E.
"Assignor": as defined in Section 10.6(c).
"Available Revolving Commitment": as to any Revolving Lender at
any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Commitment then in effect over (b) such Lender's Revolving
Extensions of Credit then outstanding.
"Benefitted Lender": as defined in Section 10.7(a).
"Board": the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Botanical Sale": the proposed sale by the Borrower of its dietary
supplement product line and its specialty industrial spice product line
which are currently operated by its Natural Products Division, but in any
event excluding assets relating to products sold to the tobacco industry.
"Business": as defined in Section 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by
law to close, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Eurodollar
Loans, such day is also a day for trading by and between banks in Dollar
deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital lease)
of fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period) that
should be capitalized under GAAP on a consolidated balance sheet of such
Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit and eurodollar time deposits with maturities of one year or less
from the date of acquisition and overnight bank deposits of any Lender or
of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this definition having a
term of not more than 30 days with respect to securities issued or fully
guaranteed or insured by the United States Government, (d) commercial paper
of a domestic issuer rated at least A-1 by Standard & Poor's Ratings
Services or any successor ("S&P") or P-1 by Xxxxx'x Investors Service, Inc.
or any successor, ("Moody's"), (e) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States or by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's, (f) securities with maturities of one year or less from the date
of acquisition backed by standby letters of credit issued by any Lender or
any commercial bank satisfying the requirements of clause (b) of this
definition or (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition.
"CD Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day that is payable by a member of
the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. ss. 327.4 (or any successor
provision) to the FDIC (or any successor) for the FDIC's (or such
successor's) insuring time deposits at offices of such institution in the
United States.
"CD Reserve Percentage": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement
for a Depositary Institution (as defined in Regulation D of the Board as in
effect from time to time) in respect of new non-personal time deposits in
Dollars having a maturity of 30 days or more.
"Change of Control": shall have occurred if any "person" or
"group" (as each such term is used in Section 13(d) or 14(d) of the
Exchange Act) other than (a) Xxxxxx X. Xxxxxxxx (or in the event of his
incompetence or death, his estate, heirs, executor, administrator,
committee or other personal representative (collectively, "heirs")) or (b)
any Person controlled, directly or indirectly, by Xxxxxx X. Xxxxxxxx or his
heirs (any such other Person, an "Unrelated Person") or any Unrelated
Persons acting as a "group" (as such term is defined in Section 13(d)(3) of
the Exchange Act), together with any Affiliates thereof which are Unrelated
Persons, (i) shall acquire "beneficial ownership" (as such term is defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than
35% of the total voting power of all classes of Voting Stock of the
Borrower then outstanding, (ii) shall have elected, or shall have caused to
be elected, a sufficient number of its or their nominees to the board of
directors of the Borrower such that the nominees so elected (whether new or
continuing directors) shall constitute a majority of the board of directors
of the Borrower, (iii) shall acquire "beneficial ownership" (as such term
is defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of more than 35% of the total voting power of all classes of Voting Stock
of PVI Acquisition then outstanding or (iv) shall have elected, or shall
have caused to be elected, a sufficient number of its or their nominees to
the board of directors of PVI Acquisition such that the nominees so elected
(whether new or continuing directors) shall constitute a majority of the
board of directors of PVI Acquisition.
"Chase": as defined in the preamble hereto.
"Closing Date": the date on which the conditions precedent set
forth in Section 5.1 shall have been satisfied, which date is April 19,
2001.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitment": as to any Lender, the sum of the Term Commitment and
the Revolving Commitment of such Lender.
"Commitment Fee Rate":1/2of 1% per annum.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of Section
4001(a)(14) part of a group that includes the Borrower and that is treated as a
single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed
by a Responsible Officer substantially in the form of Exhibit B.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise
required to be made by such Lender and designated by such Lender in a
written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its
obligations to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and
not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement
with respect to its Conduit Lender, and provided, further, that no Conduit
Lender shall (a) be entitled to receive any greater amount pursuant to
Section 2.16, 2.17, 2.18 or 10.5 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by
such Conduit Lender or (b) be deemed to have any Commitment.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated February 2001 and furnished to certain
Lenders.
"Consolidated Current Assets": at any date, all amounts (other
than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on
a consolidated balance sheet of the Borrower and its Subsidiaries at such
date.
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet
of the Borrower and its Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of the Borrower and its Subsidiaries and
(b) without duplication of clause (a) above, all Indebtedness consisting of
Revolving Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any fiscal period of the Borrower, the
Consolidated Net Income or Consolidated Net Loss, as the case may be, for
such fiscal period, (a) after restoring thereto (i) extraordinary noncash
losses, (ii) depreciation and amortization (including write-offs or
write-downs of amortizable and depreciable items), (iii) Consolidated
Interest Expense, (iv) "provision for taxes" (or any like caption) on a
consolidated statement of earnings of the Borrower and its Subsidiaries for
such fiscal period and (v) any losses in respect of currency fluctuations
and (b) after deducting therefrom (i) extraordinary, unusual or
non-recurring income or gains (which shall include, whether or not so
includable in accordance with GAAP, any item of gain resulting from
Dispositions other than in the ordinary course of business), (ii) the
portion of net income of the Borrower and its Subsidiaries allocable to
interests in unconsolidated Persons to the extent that cash dividends or
distributions in respect of such portion of net income have not actually
been received by the Borrower or any Subsidiary Guarantor, (iii) any gains
in respect of currency fluctuations, (iv) the Pension Reversion and (v) any
other noncash income; provided any such restorations or deductions shall
only be restored or deducted to the extent included in the determination of
Consolidated Net Income or Consolidated Net Loss. For the purposes of
calculating Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a "Reference Period") pursuant to any determination of the
Consolidated Leverage Ratio, (i) if at any time during such Reference
Period the Borrower or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDA for such Reference Period shall be
reduced by an amount equal to the Consolidated EBITDA (if positive)
attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to
the Consolidated EBITDA (if negative) attributable thereto for such
Reference Period and (ii) if during such Reference Period the Borrower or
any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA
for such Reference Period shall be calculated after giving pro forma effect
thereto as if such Material Acquisition occurred on the first day of such
Reference Period. As used in this definition, "Material Acquisition" means
any acquisition of property or series of related acquisitions of property
that (x) constitutes assets comprising all or substantially all of an
operating unit of a business or constitutes all or substantially all of the
common stock of a Person and (y) involves the payment of consideration by
the Borrower and its Subsidiaries in excess of $2,000,000; and "Material
Disposition" means any Disposition of property or series of related
Dispositions of property that yields gross proceeds to the Borrower or any
of its Subsidiaries in excess of $2,000,000.
"Consolidated Interest Expense": for any fiscal period of the
Borrower, the amount that, in conformity with GAAP, would be set forth
opposite the caption "interest expense" (or any like caption) on a
consolidated statement of earnings of the Borrower and its Subsidiaries for
such fiscal period.
"Consolidated Leverage Ratio": at the last day of any fiscal
quarter, the ratio of (a) Total Debt (after giving effect to all
prepayments made on such day) on such day to (b) Consolidated EBITDA for
the period of four consecutive fiscal quarters ending on such day.
"Consolidated Net Income" or "Consolidated Net Loss": for any
fiscal period of the Borrower, the amount which, in conformity with GAAP,
would be set forth opposite the caption "net income" (or any like caption)
or "net loss" (or any like caption), as the case may be, on a consolidated
statement of earnings of the Borrower and its Subsidiaries for such fiscal
period.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over ---- Consolidated Current
Liabilities on such date.
"Contractual Obligation": as to any Person, any provision of any
material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by which
it or any of its material property is bound.
"Default": any of the events specified in Section 8, whether or
not any requirement for the giving of notice, the lapse of time, or both,
has been satisfied.
"Disposition": with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative
meanings.
"Dividends": the dividends specified in clauses (e) and (f) of
Section 7.6.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States.
"Xxxxxxxx Xxxxxxx": Xxxxxxxx Xxxxxxx & XxxXxxxx.
"Environmental Laws": any and all foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including basic, supplemental, marginal and emergency reserves) under
any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank of
the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate"
shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Paying Agent or, in the absence of such availability, by reference to the
rate at which the Paying Agent is offered Dollar deposits at or about 11:00
A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
---------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect
to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same
day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"EVD": Extraits Vegetaux et Derives, S.A., a company organized
under the laws of France.
"Excess Cash Flow": for any period, the excess, if any, of (a) the
sum, without duplication, of (i) Consolidated Net Income for such period,
(ii) the amount of all non-cash charges (including depreciation and
amortization) deducted in arriving at such Consolidated Net Income, (iii)
decreases in Consolidated Working Capital for such period, and (iv) the
aggregate net amount of non-cash loss on the Disposition of property by the
Borrower and its Subsidiaries during such period (other than sales of
inventory in the ordinary course of business), to the extent deducted in
arriving at such Consolidated Net Income over (b) the sum, without
duplication, of (i) the amount of all non-cash credits included in arriving
at such Consolidated Net Income, (ii) the aggregate amount actually paid by
the Borrower and its Subsidiaries in cash during such period on account of
Capital Expenditures (excluding the principal amount of Indebtedness
incurred in connection with such expenditures), (iii) the aggregate amount
of all prepayments of Revolving Loans during such period to the extent
accompanying permanent optional reductions of the Revolving Commitments and
all optional prepayments of the Term Loans during such fiscal year, (iv)
the aggregate amount of all regularly scheduled principal payments of
Funded Debt (including the Term Loans) of the Borrower and its Subsidiaries
made during such period (other than in respect of any revolving credit
facility to the extent there is not an equivalent permanent reduction in
commitments thereunder), (v) increases in Consolidated Working Capital for
such period, (vi) the aggregate net amount of non-cash gain on the
Disposition of property by the Borrower and its Subsidiaries during such
period (other than sales of inventory in the ordinary course of business),
to the extent included in arriving at such Consolidated Net Income and
(vii) any amount attributable to the Pension Reversion included in arriving
at such Consolidated Net Income.
"Excess Cash Flow Application Date": as defined in Section 2.9(c).
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Excluded Foreign Subsidiary": any Foreign Subsidiary in respect
of which either (a) the pledge of all of the Capital Stock of such
Subsidiary as Collateral or (b) the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower.
"Facility": each of (a) the Term Commitments and the Term Loans
made thereunder (the "Term Facility") and (b) the Revolving Commitments and
the extensions of credit made thereunder (the "Revolving Facility").
"Federal Funds Effective Rate": for any day, the weighted average
of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day of such transactions received by
the Paying Agent from three federal funds brokers of recognized standing
selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"Fully Satisfied": shall mean, with respect to:
(a) the Payment Obligations as of any date, that on or before such
date, (i) the principal of and interest accrued to such date on such
Payment Obligations shall have been paid in full in cash (other than the
Undrawn L/C Obligations), (ii) all Undrawn L/C Obligations shall have been
Fully Secured, (iii) all fees, expenses and other amounts then due and
payable which constitute Payment Obligations (other than the Undrawn L/C
Obligations) shall have been paid in full in cash and (iv) the Commitments
shall have expired or irrevocably been terminated; and
(B) the Obligations (and the Borrower Obligations (as defined in
the Guarantee and Collateral Agreement )) as of any date, that, on or
before such date, (i) the Payment Obligations shall have been Fully
Satisfied (as provided in clause (a) above) and (ii) all Specified Hedging
Agreements shall have been terminated or all obligations thereunder (other
than for fees, expenses and indemnities) shall have been cash
collateralized and all fees, expenses and indemnity payments then due and
payable thereunder shall have been paid in full in cash.
"Fully Secured": shall mean, with respect to any Undrawn L/C
Obligations as of any date, that, on or before such date, such Undrawn L/C
Obligations shall have been secured by the grant to the Issuing Lender by
the Borrower of a first priority, perfected security interest in, and Lien
on, (a) cash or Cash Equivalents in an amount at least equal to the excess,
if any, of the amount of such Undrawn L/C Obligations over the amount of
the Total Revolving Credit Commitments on such date or (b) other collateral
security which is acceptable to the Issuing Lender.
"Funded Debt": as to any Person, all Indebtedness of such Person
that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year from such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date, including all current maturities and current sinking fund
payments in respect of such Indebtedness whether or not required to be paid
within one year from the date of its creation and, in the case of the
Borrower, Indebtedness in respect of the Loans.
"Funding Office": the office of the Paying Agent specified in
Section 10.2 or such other office as may be specified from time to time by
the Paying Agent as its funding office by written notice to the Borrower
and the Lenders.
"GAAP": generally accepted accounting principles in the United States
as in effect from time to time, except that for purposes of Section 7.1, GAAP
shall be determined on the basis of such principles in effect on the date hereof
and consistent with those used in the preparation of the most recent audited
financial statements referred to in Section 4.1(b). In the event that any
"Accounting Change" (as defined below) shall occur and such change results in a
change in the method of calculation of financial covenants, standards or terms
in this Agreement, then the Borrower and the Paying Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Paying Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Changes had not occurred. "Accounting
Changes" refers to changes in accounting principles required by the promulgation
of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
"Xxxxxxx, Del Deo": Xxxxxxx, Del Deo, Dolan, Griffinger &
Xxxxxxxxx, P.C.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government, any securities
exchange and any self-regulatory organization (including the National
Association of Insurance Commissioners).
"Group Members": the collective reference to Holdings, the
Borrower, their respective Subsidiaries and PVI Acquisition.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by Holdings, the Borrower, PVI
Acquisition and each Subsidiary Guarantor, substantially in the form of
Exhibit A.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including
any obligation of the guaranteeing person, whether or not contingent, (i)
to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Guarantors": the collective reference to Holdings, the Subsidiary
Guarantors and PVI Acquisition.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Holdings": as defined in the preamble hereto.
"Immaterial Foreign Subsidiary" means any Foreign Subsidiary whose
(a) assets, (b) revenues and (c) earnings before interest, taxes,
depreciation and amortization (excluding intercompany receivables and
revenues that would be eliminated upon consolidation in accordance with
GAAP), at the time of determination (determined, in the case of clauses (b)
and (c), in respect of the most recent period of four consecutive fiscal
quarters of the Borrower for which the relevant financial information is
available), in each case do not exceed $500,000.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all obligations
of such Person for the deferred purchase price of services or property,
which purchase price (i) is due twelve months or more from the date of
incurrence of the obligation in respect thereof or (ii) customarily or
actually is evidenced by a note or other written instrument (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or
in respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) the liquidation value of all redeemable preferred Capital
Stock of such Person, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g)
above, (i) all obligations of the kind referred to in clauses (a) through
(h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including accounts and contract rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of
such obligation, and (j) for the purposes of Sections 7.10 and 8(e) only,
all obligations of such Person in respect of Hedge Agreements. The
Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness expressly provide that
such Person is not liable therefor.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Interest Coverage Ratio": at the last day of any fiscal quarter,
the ratio of (a) (i) Consolidated EBITDA for the period of four consecutive
fiscal quarters ending on such date less (ii) Capital Expenditures for the
period of four consecutive fiscal quarters ending on such date to (b)
Consolidated Interest Expense for the period of four consecutive fiscal
quarters ending on such date.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last
day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day that is three months, or
a whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period and (d) as to any Loan (other than any
Revolving Loan that is an ABR Loan), the date of any repayment or
prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in its notice of borrowing
or notice of conversion, as the case may be, given with respect thereto;
and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Paying Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect
thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) the Borrower may not select an Interest Period under the
Revolving Facility that would extend beyond the Revolving Termination
Date or under the Term Facility that would extend beyond the date
final payment is due on the Term Loans;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Issuing Lender": Chase, in its capacity as issuer of any Letter
of Credit.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the Revolving
Lenders other than the Issuing Lender.
"Lender Affiliate": (a) any Affiliate of any Lender, (b) any
Person that is administered or managed by any Lender and that is engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business and (c)
with respect to any Lender which is a fund that invests in commercial loans
and similar extensions of credit, any other fund that invests in commercial
loans and similar extensions of credit and is managed or advised by the
same investment advisor as such Lender or by an Affiliate of such Lender or
investment advisor.
"Lenders": as defined in the preamble hereto; provided, that
unless the context otherwise requires, each reference herein to the Lenders
shall be deemed to include any Conduit Lender.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents and the
Notes.
"Loan Parties": each Group Member that is a party to a Loan
Document.
"M&F Worldwide": M&F Worldwide Corp., a Delaware corporation.
"Material Adverse Effect": a material adverse effect on (a) the
Acquisition, (b) the business, property, operations, condition (financial
or otherwise) or prospects of the Borrower and its Subsidiaries taken as a
whole or (c) the validity or enforceability of this Agreement or any of the
other Loan Documents or the rights or remedies of the Paying Agent or the
Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"McCanlish Kaine": McCanlish Kaine & Grant, P.C.
"Mortgaged Properties": the real properties listed on Schedule
1.1B, as to which the Paying Agent for the benefit of the Lenders shall be
granted a Lien pursuant to the Mortgages.
"Mortgages": each of the mortgages and deeds of trust made by any
Loan Party in favor of, or for the benefit of, the Paying Agent for the
benefit of the Lenders, substantially in the form of Exhibit D (with such
changes thereto as shall be advisable under the law of the jurisdiction in
which such mortgage or deed of trust is to be recorded).
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied
to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset that is the subject of such Asset Sale or Recovery
Event (other than any Lien pursuant to a Security Document) and other
customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any
tax sharing arrangements) and (b) in connection with any issuance or sale
of Capital Stock or any incurrence of Indebtedness, the cash proceeds
received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith; provided that the proceeds of a Recovery Event shall
not be counted as proceeds for purposes of this definition if, within 180
days of the receipt by Holdings, the Borrower or any of its Subsidiaries of
such proceeds, such recipient commences and thereafter diligently pursues
the repair or replacement of the property affected by such Recovery Event,
except that any portion of such proceeds not applied or committed to be
applied to such repair or replacement within 180 days of receipt of such
proceeds shall be counted as proceeds for purposes of this definition at
that time
"Non-Excluded Taxes": as defined in Section 2.17(a).
"Non-U.S. Lender": as defined in Section 2.17(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
Loans and all other obligations and liabilities of the Borrower to the
Paying Agent or to any Lender (or, in the case of Specified Hedge
Agreements, any affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Specified
Hedge Agreement or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Paying
Agent or to any Lender that are required to be paid by the Borrower
pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Panavision": Panavision Inc., a Delaware corporation.
"Panavision Shares": as defined in the definition of
"Acquisition".
"Participant": as defined in Section 10.6(b).
"Paying Agent": Chase, together with its affiliates, as an
arranger of the Commitments and as the agent for the Lenders under this
Agreement and the other Loan Documents, together with any of its
successors.
"Payment Obligations": (a) all principal, interest, fees, charges,
expenses, attorneys' fees and disbursements, indemnities, reimbursement
obligations and any other amounts payable by any Person under any Loan
Document (including, without limitation, the L/C Obligations and interest
accruing at the then applicable rate provided for herein after the maturity
of the Loans to the extent any Loans are then outstanding and interest
accruing at the then applicable rate provided for herein after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding relating to the Borrower whether or not a
claim for post-filing or post-petition interest is allowed in such
proceeding) and (b) any amount in respect of any of the foregoing that the
Paying Agent or any Lender, in its sole discretion, may elect to pay or
advance under this Agreement on behalf of such Person after the occurrence
and during the continuance of a Default or an Event of Default.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any
successor).
"Pension Reversion": a distribution made prior to the Closing Date
in the net amount (after giving effect to the payment of excise tax
thereon) of $33,825,801 of the residual assets of a Single Employer Plan to
the Borrower or a Commonly Controlled Entity in accordance with Section
4044(d) of ERISA.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Properties": as defined in Section 4.17(a).
"PVI Acquisition": PVI Acquisition Corp., a Delaware corporation.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding
relating to any asset (other than inventory) of any Group Member.
"Register": as defined in Section 10.6(d).
"Registration Rights Documentation": collectively, the
Registration Rights Agreement, dated as of June 5, 1998, among Panavision
and the Seller, and all side letters and agreements affecting the terms
thereof or entered into in connection therewith.
"Regulation U": Regulation U of the Board as in effect from time
to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period
is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Xxx.xx. 4043.
"Required Lenders": at any time, the holders of more than 50% of
the sum of (a) the aggregate unpaid principal amount of the Term Loans then
outstanding and (b) the Total Revolving Commitments then in effect or, if
the Revolving Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, 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 material property
or to which such Person or any of its material property is subject.
"Responsible Officer": the chief executive officer, president,
chief financial officer or any vice president of the Borrower, but in any
event, with respect to financial matters, the chief financial officer of
the Borrower.
"Restricted Payment": (a) any payment by the Borrower or any of
its Subsidiaries of a dividend (other than a dividend payable solely in the
same class of Capital Stock of the Borrower) on, or any payment on account
of the purchase, redemption or retirement of, or any other distribution on,
any shares of any class of Capital Stock of the Borrower (including any
such payment or distribution in cash or in property or obligations of the
Borrower or any of its Subsidiaries), (b) any loan or advance by the
Borrower or any of its Subsidiaries to any Affiliate of the Borrower or (c)
the payment by the Borrower or any of its Subsidiaries of any management or
administrative fee to any Affiliate of the Borrower or of any salary, bonus
or other form of compensation other than in the ordinary course of business
to any Person who is a significant stockholder or executive officer of any
Affiliate of the Borrower.
"Revolving Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans and participate in Letters of
Credit in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading "Revolving Commitment" opposite such
Lender's name on Schedule 1.1A or in the Assignment and Acceptance pursuant
to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original amount of the Total
Revolving Commitments is $15,000,000.
"Revolving Commitment Period": the period from and including the
Closing Date to the Revolving Termination Date.
"Revolving Extensions of Credit": as to any Revolving Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount
of all Revolving Loans held by such Lender then outstanding and (b) such
Lender's Revolving Percentage of the L/C Obligations then outstanding.
"Revolving Lender": each Lender that has a Revolving Commitment or
that holds Revolving Loans.
"Revolving Loans": as defined in Section 2.4(a).
"Revolving Percentage": as to any Revolving Lender at any time,
the percentage which such Lender's Revolving Commitment then constitutes of
the Total Revolving Commitments or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Revolving Loans then
outstanding constitutes of the aggregate principal amount of the Revolving
Loans then outstanding, provided, that, in the event that the Revolving
Loans are paid in full prior to the reduction to zero of the Total
Revolving Extensions of Credit, the Revolving Percentages shall be
determined in a manner designed to ensure that the other outstanding
Revolving Extensions of Credit shall be held by the Revolving Lenders on a
comparable basis.
"Revolving Termination Date": March 31, 2006.
"SEC": the Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"Security Documents": the collective reference to the Guarantee
and Collateral Agreement, the Mortgages and all other security documents
hereafter delivered to the Paying Agent granting a Lien on any property of
any Person to secure the obligations and liabilities of any Loan Party
under any Loan Document.
"Seller": PX Holding Corp., a Delaware corporation
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.
"Skadden": Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP.
"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Specified Hedge Agreement": any Hedge Agreement (a) entered into
by the Borrower and any Lender or Lender Affiliate and (b) that has been
designated by the relevant Lender and the Borrower, by written notice to
the Paying Agent, as a Specified Hedge Agreement. The designation of any
Hedge Agreement as a Specified Hedge Agreement shall not create in favor of
such Lender or Lender Affiliate any rights in connection with the
management or release of any Collateral or of the obligations of any Loan
Party under the Guarantee and Collateral Agreement.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than
any Excluded Foreign Subsidiary.
"Tax Allocation Agreement": the Tax Allocation Agreement entered
into as of November 14, 1996 by and among M&F Worldwide Corporation (f/k/a
Power Control Technologies Inc.), a Delaware corporation, the Borrower, its
Subsidiaries and any entities which become parties thereto pursuant to the
terms thereof.
"Term Commitment": as to any Lender, the obligation of such
Lender, if any, to make a Term Loan to the Borrower in a principal amount
not to exceed the amount set forth under the heading "Term Commitment"
opposite such Lender's name on Schedule 1.1A. The original aggregate amount
of the Term Commitment is $90,000,000.
"Term Lenders": the collective reference to each Lender that has a
Term Loan.
"Term Loans": as defined in Section 2.1.
"Term Percentage": as to any Term Lender at any time, the
percentage which such Lender's Term Commitment then constitutes of the
aggregate Term Commitments (or, at any time after the Closing Date, the
percentage which aggregate principal amount of such Lender's Term Loans
then outstanding constitutes of the aggregate principal amount of the Term
Loans then outstanding).
"Total Debt": at any time, the sum (without duplication) of (a)
the aggregate principal amount of all outstanding Indebtedness of the
Borrower and its Subsidiaries and (b) all outstanding Guarantee Obligations
of the Borrower and its Subsidiaries in respect of Indebtedness of Persons
other than the Borrower or any of its Subsidiaries; provided, that
contingent obligations in respect of Indebtedness of the type described in
clause (f) of the definition of the term Indebtedness shall not be included
for the purpose of calculating Total Debt.
"Total Revolving Commitments": at any time, the aggregate amount
of the Revolving Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Transaction": shall mean the amendment and restatement of the
Existing Credit Agreement, the Acquisition, the Dividends and the financing
in connection with each of the foregoing.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Undrawn L/C Obligations": the portion, if any, of the Payment
Obligations constituting the contingent obligation of the Borrower to
reimburse the Issuing Lender in respect of the then undrawn and unexpired
portions of the Letters of Credit issued by the Issuing Lender pursuant to
Section 3.1.
"United States": the United States of America.
"Wholly Owned Subsidiary": as to any Person, any other Person all
of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto. (b) As used herein
and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) accounting terms relating to
any Group Member not defined in Section 1.1 and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation", (iii) the word "incur" shall be construed to mean
incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words "incurred" and "incurrence" shall have correlative
meanings), (iv) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, Capital Stock,
securities, revenues, accounts, leasehold interests and contract rights,
and (v) references to agreements or other Contractual Obligations shall,
unless otherwise specified, be deemed to refer to such agreements or
Contractual Obligations as amended, supplemented, restated or otherwise
modified from time to time.
(c) The words "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, and
Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions hereof,
each Term Lender severally agrees to make a term loan (a "Term Loan") to
the Borrower on the Closing Date in an amount not to exceed the amount of
the Term Commitment of such Lender. The Term Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified
to the Paying Agent in accordance with Sections 2.2 and 2.10.
2.2 Procedure for Term Loan Borrowing. The Borrower shall give the
Paying Agent irrevocable notice (which notice must be received by the
Paying Agent prior to 10:00 A.M., New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Term Lenders
make the Term Loans on the Closing Date and specifying the amount to be
borrowed. The Term Loans made on the Closing Date shall initially be ABR
Loans. Upon receipt of such notice the Paying Agent shall promptly notify
each Term Lender thereof. Not later than 12:00 Noon, New York City time, on
the Closing Date each Term Lender shall make available to the Paying Agent
at the Funding Office an amount in immediately available funds equal to the
Term Loan or Term Loans to be made by such Lender. The Paying Agent shall
credit the account of the Borrower on the books of such office of the
Paying Agent with the aggregate of the amounts made available to the Paying
Agent by the Term Lenders in immediately available funds.
2.3 Repayment of Term Loans. The Term Loan shall mature in 20
consecutive quarterly installments, each of which shall be in an amount
equal to such Lender's Term Percentage multiplied by the amount set forth
below opposite such installment:
Installment Principal Amount
----------- ----------------
June 30, 2001 $2,500,000
September 30, 2001 $2,500,000
December 31, 2001 $2,500,000
March 31, 2002 $2,500,000
June 30, 2002 $3,750,000
September 30, 2002 $3,750,000
December 31, 2002 $3,750,000
March 31, 2002 $3,750,000
June 30, 2003 $5,000,000
September 30, 2003 $5,000,000
December 31, 2003 $5,000,000
March 31, 2004 $5,000,000
June 30, 2004 $5,000,000
September 30, 2004 $5,000,000
December 31, 2004 $5,000,000
March 31, 2005 $5,000,000
June 30, 2005 $6,250,000
September 30, 2005 $6,250,000
December 31, 2005 $6,250,000
March 31, 2006 $6,250,000
2.4 Revolving Commitments. (a) Subject to the terms and conditions
hereof, each Revolving Lender severally agrees to make revolving credit
loans ("Revolving Loans") to the Borrower from time to time during the
Revolving Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender's Revolving Percentage of
the L/C Obligations then outstanding, does not exceed the amount of such
Lender's Revolving Commitment. During the Revolving Commitment Period the
Borrower may use the Revolving Commitments by borrowing, prepaying the
Revolving Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Revolving Loans may from time to
time be Eurodollar Loans or ABR Loans, as determined by the Borrower and
notified to the Paying Agent in accordance with Sections 2.5 and 2.10.
(b) The Borrower shall repay all outstanding Revolving Loans on
the Revolving Termination Date.
2.5 Procedure for Revolving Loan Borrowing. The Borrower may
borrow under the Revolving Commitments during the Revolving Commitment
Period on any Business Day, provided that the Borrower shall give the
Paying Agent irrevocable notice (which notice must be received by the
Paying Agent prior to 12:00 Noon, New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in
the case of ABR Loans), specifying (i) the amount and Type of Revolving
Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the
case of Eurodollar Loans, the respective lengths of the initial Interest
Period therefor. Any Revolving Loans made on the Closing Date shall
initially be ABR Loans. Each borrowing under the Revolving Commitments
shall be in an amount equal to $1,000,000 or a whole multiple of $100,000
in excess thereof (or, if the then aggregate Available Revolving
Commitments are less than $1,000,000, such lesser amount). Upon receipt of
any such notice from the Borrower, the Paying Agent shall promptly notify
each Revolving Lender thereof. Each Revolving Lender will make the amount
of its pro rata share of each borrowing available to the Paying Agent for
the account of the Borrower at the Funding Office prior to 12:00 Noon, New
York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Paying Agent. Such borrowing will then be made
available to the Borrower by the Paying Agent crediting the account of the
Borrower on the books of such office with the aggregate of the amounts made
available to the Paying Agent by the Revolving Lenders and in like funds as
received by the Paying Agent.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Paying Agent for the account of each Revolving Lender a commitment fee for
the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the
average daily amount of the Available Revolving Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears
on the last day of each March, June, September and December and on the
Revolving Termination Date, commencing on the first of such dates to occur
after the date hereof.
(b) The Borrower agrees to pay to the Paying Agent the fees in the
amounts and on the dates previously agreed to in writing by the Borrower
and the Paying Agent.
2.7 Termination or Reduction of Revolving Commitments. The
Borrower shall have the right, upon not less than three Business Days'
notice to the Paying Agent, to terminate the Revolving Commitments or, from
time to time, to reduce the amount of the Revolving Commitments; provided
that no such termination or reduction of Revolving Commitments shall be
permitted if, after giving effect thereto and to any prepayments of the
Revolving Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Commitments then in
effect.
2.8 Optional Prepayments. The Borrower may at any time and from
time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Paying Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at
least one Business Day prior thereto in the case of ABR Loans, which notice
shall specify the date and amount of prepayment and whether the prepayment
is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period
applicable thereto, the Borrower shall also pay any amounts owing pursuant
to Section 2.18. Upon receipt of any such notice the Paying Agent shall
promptly notify each relevant Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Loans
that are ABR Loans) accrued interest to such date on the amount prepaid.
Partial prepayments of Term Loans and Revolving Loans shall be in an
aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in
excess thereof.
2.9 Mandatory Prepayments. (a) If any Capital Stock or
Indebtedness shall be issued or incurred by any Group Member (excluding any
Indebtedness incurred in accordance with Section 7.10), an amount equal to
100% of the Net Cash Proceeds thereof shall be applied on the date of such
issuance or incurrence toward the prepayment of the Term Loans.
(b) If on any date any Group Member shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event then such Net Cash Proceeds
shall be applied on such date toward the prepayment of the Term Loans.
(c) If, for the period from April 1, 2001 to December 31, 2001,
and for any fiscal year thereafter, there shall be Excess Cash Flow, the
Borrower shall, on the relevant Excess Cash Flow Application Date, apply
50% of such Excess Cash Flow toward the prepayment of the Term Loans. Each
such prepayment and commitment reduction shall be made on a date (an
"Excess Cash Flow Application Date") no later than five days after the
earlier of (i) the date on which the financial statements of the Borrower
referred to in Section 6.1(a), for the period with respect to which such
prepayment is made, are required to be delivered to the Lenders and (ii)
the date such financial statements are actually delivered.
(d) The application of any prepayment pursuant to Section 2.9
shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each
prepayment of the Loans under Section 2.9 (except in the case of Revolving
Loans that are ABR Loans) shall be accompanied by accrued interest to the
date of such prepayment on the amount prepaid.
(e) If, as a result of the making of any payment required to be
made pursuant to this Section 2.9, the Borrower would incur costs pursuant
to Section 2.18, the Borrower may deposit the amount of such payment with
the Paying Agent, for the benefit of the Lenders, in a cash collateral
account, until the end of the applicable Interest Period at which time such
payment shall be made. The Borrower hereby grants to the Paying Agent, for
the benefit of the Lenders, a security interest in all amounts from time to
time on deposit in such cash collateral account and expressly waives all
rights (which rights the Borrower hereby acknowledges and agrees are vested
exclusively in the Paying Agent) to exercise dominion or control over any
such amounts.
2.10 Conversion and Continuation Options.(a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving
the Paying Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto.
The Borrower may elect from time to time to convert ABR Loans to Eurodollar
Loans by giving the Paying Agent at least three Business Days' prior
irrevocable notice of such election (which notice shall specify the length
of the initial Interest Period therefor), provided that no ABR Loan may be
converted into a Eurodollar Loan when any Event of Default has occurred and
is continuing and the Paying Agent or the Required Lenders have determined
in its or their sole discretion not to permit such conversions. Upon
receipt of any such notice the Paying Agent shall promptly notify each
relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Paying Agent, in accordance with
the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan may be continued as such when
any Event of Default has occurred and is continuing and the Paying Agent
has or the Required Lenders have determined in its or their sole discretion
not to permit such continuations, and provided, further, that if the
Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to ABR Loans
on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Paying Agent shall promptly notify each relevant Lender
thereof.
2.11 Limitations on Eurodollar Tranches. Notwithstanding anything
to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurodollar Loans and all selections of Interest Periods
shall be in such amounts and be made pursuant to such elections so that,
(a) after giving effect thereto, the aggregate principal amount of the
Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$1,000,000 or a whole multiple of $100,000 in excess thereof and (b) no
more than six Eurodollar Tranches shall be outstanding at any one time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for
such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations (whether or not overdue) shall bear interest at a
rate per annum equal to (x) in the case of the Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of
this Section plus 2% or (y) in the case of Reimbursement Obligations, the
rate applicable to ABR Loans under the Revolving Facility plus 2%, and (ii)
if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
equal to the rate then applicable to ABR Loans under the relevant Facility
plus 2% (or, in the case of any such other amounts that do not relate to a
particular Facility, the rate then applicable to ABR Loans under the
Revolving Facility plus 2%), in each case, with respect to clauses (i) and
(ii) above, from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year
for the actual days elapsed, except that, with respect to ABR Loans the
rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as
the case may be) day year for the actual days elapsed. The Paying Agent
shall as soon as practicable notify the Borrower and the relevant Lenders
of each determination of a Eurodollar Rate. Any change in the interest rate
on a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the
day on which such change becomes effective. The Paying Agent shall as soon
as practicable notify the Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Paying Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Borrower and the Lenders in the absence of manifest error. The
Paying Agent shall, at the request of the Borrower, deliver to the Borrower
a statement showing the quotations used by the Paying Agent in determining
any interest rate pursuant to Section 2.12(a) or 2.12(b).
2.14 Inability to Determine Interest Rate. If prior to the first
day of any Interest Period: (a) the Paying Agent shall have determined
(which determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Paying Agent shall have received notice from the Required
Lenders that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period, the Paying
Agent shall give telecopy or telephonic notice thereof to the Borrower and
the relevant Lenders at least two Business Days prior to the commencement
of any such Interest Period. Unless the Borrower shall have notified the
Paying Agent promptly upon receipt of such telecopy or telephonic notice
that it wishes to rescind or modify its request regarding (i) proposed
Loans that the Borrower has requested be made as Eurodollar Loans, (ii) a
Eurodollar Loan that will result form the requested conversion of all or
part of ABR Loans into Eurodollar Loans or (iii) the continuation of a
Eurodollar Loan as such for an additional Interest Period, then (x) any
Eurodollar Loans under the relevant Facility requested to be made on the
first day of such Interest Period shall be made as ABR Loans, (y) any Loans
under the relevant Facility that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be continued as ABR
Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then-current Interest Period, to
ABR Loans. Until such notice has been withdrawn by the Paying Agent, no
further Eurodollar Loans under the relevant Facility shall be made or
continued as such, nor shall the Borrower have the right to convert Loans
under the relevant Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from
the Lenders hereunder, each payment by the Borrower on account of any commitment
fee and any reduction of the Commitments of the Lenders shall be made pro rata
according to the respective Term Percentages or Revolving Percentages, as the
case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Term Loans shall be made pro rata according to
the respective outstanding principal amounts of the Term Loans then held by the
Term Lenders. The amount of each principal prepayment of the Term Loans shall be
applied to reduce the then remaining installments of the Term Loans pro rata
based upon the then remaining principal amount thereof. Notwithstanding the
foregoing, if any optional prepayment of Term Loans is made pursuant to Section
2.8 at any time other than on a scheduled installment date in respect of the
Term Loans, the amount of each principal prepayment of the Term Loans shall be
applied to reduce the next originally scheduled installment (unless previously
prepaid) of the Term Loans, and, if any such prepayment amount remains after the
payment in full of the next originally scheduled installment of the Term Loans,
any such remaining amount shall be applied in the manner set forth in the
preceding sentence. Amounts prepaid on account of the Term Loans may not be
reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Paying Agent, for the account of the Lenders, at the Funding Office, in
Dollars and in immediately available funds. The Paying Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds
as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day. If
any payment on a Eurodollar Loan becomes due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the
case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable
rate during such extension.
(e) Unless the Paying Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its share of such borrowing available to the Paying
Agent, the Paying Agent may assume that such Lender is making such amount
available to the Paying Agent, and the Paying Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Paying Agent by the required time
on the Borrowing Date therefor, such Lender shall pay to the Paying Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes
such amount immediately available to the Paying Agent. A certificate of the
Paying Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error.
If such Lender's share of such borrowing is not made available to the
Paying Agent by such Lender within three Business Days after such Borrowing
Date, the Paying Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to ABR Loans under the
relevant Facility, on demand, from the Borrower.
(f) Unless the Paying Agent shall have been notified in writing by
the Borrower prior to the date of any payment due to be made by the
Borrower hereunder that the Borrower will not make such payment to the
Paying Agent, the Paying Agent may assume that the Borrower is making such
payment, and the Paying Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is
not made to the Paying Agent by the Borrower within three Business Days
after such due date, the Paying Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest thereon at
the rate per annum equal to the daily average Federal Funds Effective Rate.
Nothing herein shall be deemed to limit the rights of the Paying Agent or
any Lender against the Borrower.
2.16 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 2.17 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender that is not otherwise included in
the determination of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount that such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or issuing or
participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary
to compensate such Lender for such increased cost or reduced amount
receivable as reasonably determined by such Lender. If any Lender becomes
entitled to claim any additional amounts pursuant to this paragraph, it
shall promptly notify the Borrower (with a copy to the Paying Agent) of the
event by reason of which it has become so entitled. If any Lender shall
have determined that the adoption of or any change in any Requirement of
Law regarding capital adequacy or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of
return on such Lender's or such corporation's capital as a consequence of
its obligations hereunder or under or in respect of any Letter of Credit to
a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then
from time to time, after submission by such Lender to the Borrower (with a
copy to the Paying Agent) of a written request therefor, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate
such Lender or such corporation for such reduction; provided that the
Borrower shall not be required to compensate a Lender pursuant to this
paragraph for any amounts incurred more than six months prior to the date
that such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances
giving rise to such claim have a retroactive effect, then such six-month
period shall be extended to include the period of such retroactive effect.
(b) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Paying Agent) which shall contain supporting calculations and an
explanation in connection therewith and shall be conclusive in the absence
of manifest error. The obligations of the Borrower pursuant to this Section
shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
2.17 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on the Paying
Agent or any Lender as a result of a present or former connection between
the Paying Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely
from the Paying Agent or such Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to the Paying Agent or any Lender hereunder, the amounts so
payable to the Paying Agent or such Lender shall be increased to the extent
necessary to yield to the Paying Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any
Non-Excluded Taxes (i) that are attributable to such Lender's failure to
comply with the requirements of paragraph (d) or (e) of this Section, (ii)
that are United States withholding taxes imposed on amounts payable to such
Lender at the time such Lender becomes a party to this Agreement, except to
the extent that such Lender's assignor (if any) was entitled, at the time
of assignment, to receive additional amounts from the Borrower with respect
to such Non-Excluded Taxes pursuant to this paragraph or (iii) that are
attributable to a change in such Lender's lending office or a change in the
jurisdiction where such Lender does business, or is qualified to do
business, in respect of the Loan.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to
the Paying Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the Borrower
fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Paying Agent the
required receipts or other required documentary evidence, the Borrower
shall indemnify the Paying Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Paying Agent or any
Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall
deliver to the Borrower and the Paying Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service Form
W-8BEN or Form W-8ECI or such other applicable form, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a statement substantially in the form of Exhibit G and a Form
W-8BEN, or any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. federal withholding tax on all
payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date
it becomes a party to this Agreement (or, in the case of any Participant,
on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly
notify the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower
(or any other form of certification adopted by the U.S. taxing authorities
for such purpose). Notwithstanding any other provision of this paragraph, a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Paying Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lender's reasonable judgment such
completion, execution or submission would not materially prejudice the
legal position of such Lender.
(f) If the Paying Agent or any Lender receives a refund in respect
of Non-Excluded Taxes or Other Taxes paid by the Borrower, which in the
good faith judgment of such Lender is allocable to such payment, it shall
promptly pay such refund, together with any other amounts paid by the
Borrower in connection with such refunded Non-Excluded Taxes or Other
Taxes, to the Borrower, net of all out-of-pocket expenses of such Lender
incurred in obtaining such refund, provided, however, that the Borrower
agrees to promptly return such refund to the Paying Agent or the applicable
Lender, as the case may be, if it receives notice from the Paying Agent or
applicable Lender that such Paying Agent or Lender is required to pay such
refund.
(g) The agreements in this Section shall survive the termination
of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.18 Indemnity. The Borrower agrees to indemnify each Lender for,
and to hold each Lender harmless from, any loss or expense that such Lender
may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in
making any prepayment of or conversion from Eurodollar Loans after the
Borrower has given a notice thereof in accordance with the provisions of
this Agreement or (c) the making of a prepayment of Eurodollar Loans on a
day that is not the last day of an Interest Period with respect thereto.
Such indemnification may include an amount equal to the excess, if any, of
(i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from
the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) that would have accrued
to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section submitted to
the Borrower by any Lender shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
2.19 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.16 or
2.17(a) with respect to such Lender, it will, if requested by the Borrower,
use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided,
that such designation is made on terms that, in the sole judgment of such
Lender, cause such Lender and its lending office(s) to suffer no economic,
legal or regulatory disadvantage, and provided, further, that nothing in
this Section shall affect or postpone any of the obligations of the
Borrower or the rights of any Lender pursuant to Section 2.16 or 2.17(a).
2.20 Replacement of Lenders. The Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing
pursuant to Section 2.16 or 2.17(a) or (b) defaults in its obligation to
make Loans hereunder, with a replacement financial institution; provided
that (i) such replacement does not conflict with any Requirement of Law,
(ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) prior to any such replacement, such Lender shall
have taken no action under Section 2.19 so as to eliminate the continued
need for payment of amounts owing pursuant to Section 2.16 or 2.17(a), (iv)
the replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.18 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating
thereto, (vi) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Paying Agent, (vii) the
replaced Lender shall be obligated to make such replacement in accordance
with the provisions of Section 10.6 (provided that the Borrower shall be
obligated to pay the registration and processing fee referred to therein),
(viii) until such time as such replacement shall be consummated, the
Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.16 or 2.17(a), as the case may be, and (ix) any such replacement
shall not be deemed to be a waiver of any rights that the Borrower, the
Paying Agent or any other Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other
Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of
credit ("Letters of Credit") for the account of the Borrower on any
Business Day during the Revolving Commitment Period in such form as may be
approved from time to time by the Issuing Lender; provided that the Issuing
Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, the aggregate amount of the Available
Revolving Commitments would be less than zero. Each Letter of Credit shall
(i) be denominated in Dollars and (ii) expire no later than the earlier of
(x) the first anniversary of its date of issuance and (y) the date that is
five Business Days prior to the Revolving Termination Date, provided that
any Letter of Credit with a one-year term may provide for the renewal
thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above).
(b) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified
herein an Application therefor, completed to the satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any
Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event
shall the Issuing Lender be required to issue any Letter of Credit earlier
than three Business Days after its receipt of the Application therefor and
all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by the Issuing Lender
and the Borrower. The Issuing Lender shall furnish a copy of such Letter of
Credit to the Borrower promptly following the issuance thereof. The Issuing
Lender shall promptly furnish to the Paying Agent, which shall in turn
promptly furnish to the Lenders, notice of the issuance of each Letter of
Credit (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Revolving Lenders and payable quarterly
in arrears on each L/C Fee Payment Date after the issuance date. In
addition, the Borrower shall pay to the Issuing Lender for its own account
a fronting fee of 0.25% per annum on the undrawn and unexpired amount of
each Letter of Credit, payable quarterly in arrears on each L/C Fee Payment
Date after the Issuance Date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering
any Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees
to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the
Issuing Lender, on the terms and conditions set forth below, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Percentage in the Issuing Lender's obligations and
rights under and in respect of each Letter of Credit and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a
draft is paid under any Letter of Credit for which the Issuing Lender is
not reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand
at the Issuing Lender's address for notices specified herein an amount
equal to such L/C Participant's Revolving Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit is paid to the Issuing Lender within three Business Days
after the date such payment is due, such L/C Participant shall pay to the
Issuing Lender on demand an amount equal to the product of (i) such amount,
times (ii) the daily average Federal Funds Effective Rate during the period
from and including the date such payment is required to the date on which
such payment is immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. If any such amount
required to be paid by any L/C Participant pursuant to Section 3.4(a) is
not made available to the Issuing Lender by such L/C Participant within
three Business Days after the date such payment is due, the Issuing Lender
shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per
annum applicable to ABR Loans under the Revolving Facility. A certificate
of the Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C
Participant its pro rata share of such payment in accordance with Section
3.4(a), the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds
of collateral applied thereto by the Issuing Lender), or any payment of
interest on account thereof, the Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided, however, that in the
event that any such payment received by the Issuing Lender shall be
required to be returned by the Issuing Lender, such L/C Participant shall
return to the Issuing Lender the portion thereof previously distributed by
the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees
to reimburse the Issuing Lender on the Business Day next succeeding the
Business Day on which the Issuing Lender notifies the Borrower of the date
and amount of a draft presented under any Letter of Credit and paid by the
Issuing Lender for the amount of (a) such draft so paid and (b) any taxes,
fees, charges or other costs or expenses incurred by the Issuing Lender in
connection with such payment. Each such payment shall be made to the
Issuing Lender at its address for notices referred to herein in Dollars and
in immediately available funds. Interest shall be payable on any such
amounts from the date on which the relevant draft is paid until payment in
full at the rate set forth in (i) until the Business Day next succeeding
the date of the relevant notice, Section 2.12(b) and (ii) thereafter,
Section 2.12(c).
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment that the Borrower may have or have had against the Issuing Lender,
any beneficiary of a Letter of Credit or any other Person. The Borrower
also agrees with the Issuing Lender that the Issuing Lender shall not be
responsible for, and the Borrower's Reimbursement Obligations under Section
3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred
or any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found
by a final and nonappealable decision of a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of the
Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified
in the Uniform Commercial Code of the State of New York, shall be binding
on the Borrower and shall not result in any liability of the Issuing Lender
to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly
notify the Borrower of the date and amount thereof. The responsibility of
the Issuing Lender to the Borrower in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Paying Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, Holdings and the Borrower hereby jointly and severally represent
and warrant to the Paying Agent and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at
December 31, 2000 (including the notes thereto) (the "Pro Forma Balance
Sheet"), copies of which have heretofore been furnished to each Lender, has
been prepared giving effect (as if such events had occurred on such date)
to (i) the consummation of the Transaction, (ii) the Loans to be made on
the Closing Date and the use of proceeds thereof, (iii) the Pension
Reversion, (iv) the Botanical Sale and (v) the payment of fees and expenses
in connection with the foregoing. The Pro Forma Balance Sheet has been
prepared based on the best information available to the Borrower as of the
date of delivery thereof, and presents fairly on a pro forma basis the
estimated financial position of Borrower and its consolidated Subsidiaries
as at December 31, 2000, assuming that the events specified in the
preceding sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of the Borrower as at
December 31, 1998, December 31, 1999 and December 31, 2000, and the related
consolidated statements of income and of cash flows for the fiscal years
ended on such dates, reported on by and accompanied by an unqualified
report from Ernst & Young LLP, present fairly the consolidated financial
condition of the Borrower as at such date, and the consolidated results of
its operations and its consolidated cash flows for the respective fiscal
years then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by
the aforementioned firm of accountants and disclosed therein). Neither the
Borrower nor any of its Subsidiaries has any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph or permitted to
be incurred under this Agreement. During the period from December 31, 2000
to and including the date hereof there has been no Disposition by any Group
Member of any material part of its business or property.
4.2 No Change. Since December 31, 2000, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Existence; Compliance with Law. Each Group Member (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization (except no representation is made as to
the good standing of any Subsidiary organized under the laws of a
jurisdiction in which there is no concept of good standing), (b) has the
power and authority, and the legal right, to own and operate its property,
to lease the property it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
business requires such qualification, except to the extent that the failure
to so qualify would not, in the aggregate, be reasonably likely to have a
Material Adverse Effect, and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan Party
has the power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and, in the case of the
Borrower, to obtain extensions of credit hereunder. Each Loan Party has
taken all necessary organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and,
in the case of the Borrower, to authorize the extensions of credit on the
terms and conditions of this Agreement. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the
Acquisition, the Dividend and the extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of this
Agreement or any of the Loan Documents, except (i) consents,
authorizations, filings and notices described in Schedule 4.4, which
consents, authorizations, filings and notices have been obtained or made
and are in full force and effect and (ii) the filings referred to in
Section 4.19. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party party thereto. This Agreement constitutes, and
each other Loan Document upon execution will constitute, a legal, valid and
binding obligation of each Loan Party party thereto, enforceable against
each such Loan Party in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not
violate any material Requirement of Law or any Contractual Obligation of
any Group Member and will not result in, or require, the creation or
imposition of any Lien on any of their respective material properties or
revenues pursuant to any Requirement of Law or any such Contractual
Obligation (other than the Liens created by the Security Documents)..
4.6 Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the
knowledge of Holdings or the Borrower, threatened by or against any Group
Member or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) that could reasonably be expected to
have a Material Adverse Effect.
4.7 No Default. No Group Member is in default under or with
respect to any of its Contractual Obligations in any respect that could
reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each Group Member has title in
fee simple to, or a valid leasehold interest in, all its real property, and
good title to, or a valid leasehold interest in, all its other property,
and none of such property is subject to any Lien except as permitted by
Section 7.2.
4.9 Intellectual Property. Each Group Member owns, or is licensed
to use, all Intellectual Property necessary for the conduct of its business
as currently conducted that is material to the business, condition
(financial or otherwise), operations, performance, properties or prospects
of the Group Members taken as a whole. No material claim has been asserted
and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property that is material to the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Group
Members taken as a whole, nor does Holdings or the Borrower know of any
valid basis for any such claim. The use of Intellectual Property by each
Group Member does not infringe on the rights of any Person, except to the
extent of any infringements which would not, in the aggregate, be
reasonably likely to have a Material Adverse Effect.
4.10 Taxes. Each Group Member has filed or caused to be filed all
Federal, state and other material tax returns that are required to be filed
and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the relevant Group Member); no tax Lien has been filed, and, to
the knowledge of Holdings and the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans,
and no other extensions of credit hereunder, will be used for any purpose
that violates the provisions of the Regulations of the Board. If requested
by any Lender or the Paying Agent, the Borrower will furnish to the Paying
Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against any Group Member pending or, to the
knowledge of Holdings or the Borrower, threatened; (b) hours worked by and
payment made to employees of each Group Member have not been in violation
of the Fair Labor Standards Act or any other applicable Requirement of Law
dealing with such matters; and (c) all payments due from any Group Member
on account of employee health and welfare insurance have been paid or
accrued as a liability on the books of the relevant Group Member.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302
of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan
that resulted in, or could reasonably be expected to result in, any unpaid
liability, and each Plan (other than any Multiemployer Plan or any
multiemployer health or welfare plan) has complied (in form and in
operation) in all material respects with the applicable provisions of ERISA
and the Code, except as such Reportable Event, or such failure to comply,
could not reasonably be expected to have a Material Adverse Effect. No Lien
in favor of the PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan
allocable to such accrued benefits by a material amount. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted, or could
reasonably be expected to result, in a material liability under ERISA, and
neither the Borrower nor any Commonly Controlled Entity would become
subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is
an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended. No Loan Party is subject to regulation under any Requirement of
Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.
4.15 Subsidiaries. Except as disclosed to the Paying Agent by the
Borrower in writing from time to time after the Closing Date, (a) Schedule
4.15 sets forth the name and jurisdiction of incorporation of each
Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and (b) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Capital Stock
of the Borrower or any Subsidiary, except as created by the Loan Documents.
4.16 Use of Proceeds. The proceeds of the Term Loans shall be used
to finance a portion of the Transaction and to pay related fees and
expenses. The proceeds of the Revolving Loans and the Letters of Credit
shall be used for general corporate purposes.
4.17 Environmental Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by any
Group Member (the "Properties") do not contain, and have not
previously contained, any Materials of Environmental Concern in
amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could give rise to liability under, any
Environmental Law;
(b) no Group Member has received or is aware of any notice of
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the
business operated by any Group Member (the "Business"), nor does
Holdings or the Borrower have -------- knowledge or reason to believe
that any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported
or disposed of from the Properties in violation of, or in a manner or
to a location that could give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of
the Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of Holdings and the Borrower,
threatened, under any Environmental Law to which any Group Member is
or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of any Group Member in connection with the
Properties or otherwise in connection with the Business, in violation
of or in amounts or in a manner that could give rise to liability
under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with
all applicable Environmental Laws, and there is no contamination at,
under or about the Properties or violation of any Environmental Law
with respect to the Properties or the Business; and
(g) no Group Member has assumed any liability of any other Person
under Environmental Laws.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement
furnished by or on behalf of any Loan Party to the Paying Agent or the
Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, as such
information, schedule, exhibit or report or other document has been
amended, supplemented or superseded by any other information, schedule,
exhibit or report or other document later delivered to the same parties
receiving such information, schedule, exhibit or report or other document
prior to the date on which this representation is made or deemed made,
contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential
Information Memorandum, as of the date of this Agreement), any untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements contained herein or therein, in light of the
circumstances when made, not materially misleading, provided that in the
case of information, schedules, exhibits or reports or other documents
made, delivered or prepared by Persons other than the Borrower, its
Subsidiaries and their agents (other than any of the foregoing contained in
the Confidential Information Memorandum), such representation and warranty
is subject to the qualification that it is true and correct only to the
knowledge of the Borrower and its Subsidiaries. The projections and pro
forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of
the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is
not to be viewed as fact and that actual results during the period or
periods covered by such financial information may differ from the projected
results set forth therein by a material amount. As of the date hereof, the
representations and warranties contained in the Acquisition Documentation
are true and correct in all material respects. There is no fact known to
any Loan Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other
documents, certificates and statements furnished to the Paying Agent and
the Lenders for use in connection with the transactions contemplated hereby
and by the other Loan Documents.
4.19 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Paying Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in
the Collateral described therein and proceeds thereof. In the case of the
certificated Pledged Stock described in the Guarantee and Collateral
Agreement, when stock certificates representing such Pledged Stock are
delivered to the Paying Agent, and in the case of the other Collateral
described in the Guarantee and Collateral Agreement, when financing
statements and other filings specified on Schedule 4.19(a) in appropriate
form are filed in the offices specified on Schedule 4.19(a), the Guarantee
and Collateral Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Obligations
(as defined in the Guarantee and Collateral Agreement), in each case prior
and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.2).
(b) Each of the Mortgages is effective to create in favor of the
Paying Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on
Schedule 4.19(b), each such Mortgage shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the
Loan Parties in the Mortgaged Properties, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in
right to any other Person, except as disclosed on the title insurance
policy delivered in respect of such Mortgaged Property pursuant to Section
5.1(k)(iii). Schedule 1.1B lists each parcel of real property in the United
States owned in fee simple by the Borrower or any of its Subsidiaries as of
the Closing Date which, as of such date, has a value, in the reasonable
opinion of the Borrower, in excess of $500,000.
4.20 Solvency. Each Loan Party is, and after giving effect to the
Acquisition and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be and will continue to
be, Solvent.
4.21 Regulation H. Each Mortgaged Property located in an area that
has been identified by the Secretary of Housing and Urban Development as an
area having special flood hazards has a policy of flood insurance covering
such property that (a) is written in an amount not less than the
outstanding principal amount of the Indebtedness secured by such Mortgage
that is reasonably allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of property
under the National Flood Insurance Act of 1968, whichever is less, (b) has
a term ending not later than the maturity of the Indebtedness secured by
such Mortgage and (c) names the Paying Agent as the payee in the event of
any loss.
4.22 Certain Documents. The Borrower has delivered to the Paying
Agent a complete and correct copy of the Acquisition Documentation.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction, on or prior to the Closing Date,
of the following conditions precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement. The
Paying Agent shall have received (i) this Agreement, executed and
delivered by the Paying Agent, Holdings, the Borrower and each Person
listed on Schedule 1.1A, (ii) the Guarantee and Collateral Agreement,
executed and delivered by Holdings, the Borrower, PVI Acquisition and
each Subsidiary Guarantor and (iii) an Acknowledgement and Consent in
the form attached to the Guarantee and Collateral Agreement, executed
and delivered by each Issuer (as defined therein), if any, that is not
a Loan Party.
(b) Acquisition, etc. (i) The Acquisition shall have been
consummated and (ii) the Paying Agent shall have received satisfactory
evidence that the fees and expenses to be incurred in connection with
the Acquisition and the financing thereof shall not exceed $5,000,000.
(c) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheet and (ii) audited
consolidated financial statements of the Borrower for the 1998, 1999
and 2000 fiscal years.
(d) Approvals. All governmental and third party approvals
necessary in connection with the Acquisition, the continuing
operations of the Group Members and the transactions contemplated
hereby shall have been obtained and be in full force and effect, and
all applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority that would
restrain, prevent or otherwise impose adverse conditions on the
Acquisition or the financing contemplated hereby.
(e) Lien Searches. The Paying Agent shall have received the
results of a recent lien search in each of the jurisdictions where
assets of the Loan Parties are located, and such search shall reveal
no liens on any of the assets of the Loan Parties except for liens
permitted by Section 7.3 or discharged on or prior to the Closing Date
pursuant to documentation satisfactory to the Paying Agent.
(f) Fees. The Lenders and the Paying Agent shall have received
all fees required to be paid, and all expenses for which invoices have
been presented (including the reasonable fees and expenses of legal
counsel), on or before the Closing Date. All such amounts will be paid
with proceeds of Loans made on the Closing Date and will be reflected
in the funding instructions given by the Borrower to the Paying Agent
on or before the Closing Date.
(g) Closing Certificate. The Paying Agent shall have received a
certificate of each Loan Party, dated the Closing Date, substantially
in the form of Exhibit C, with appropriate insertions and attachments.
(h) Legal Opinions. The Paying Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Skadden, counsel to the Borrower and
its Subsidiaries, substantially in the form of Exhibit F-1;
(ii) to the extent consented to by the relevant counsel, each
legal opinion, if any, delivered in connection with the
Acquisition Agreement, accompanied by a reliance letter in favor
of the Lenders; and
(iii) the legal opinion of local counsel of each of Xxxxxxx,
Del Deo, Xxxxxxxx Xxxxxxx and McCanlish Kaine and of such other
special and local counsel as may be required by the Paying Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Paying Agent may
reasonably require.
(i) Pledged Stock; Stock Powers; Pledged Notes. The Paying Agent
shall have received (i) the certificates representing the certificated
shares of Capital Stock pledged pursuant to the Guarantee and
Collateral Agreement, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of the
pledgor thereof and (ii) each promissory note (if any) pledged to the
Paying Agent pursuant to the Guarantee and Collateral Agreement
endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank) by the pledgor thereof.
(j) Filings, Registrations and Recordings. Each document
(including any Uniform Commercial Code financing statement) required
by the Security Documents or under law or reasonably requested by the
Paying Agent to be filed, registered or recorded in order to create in
favor of the Paying Agent, for the benefit of the Lenders, a perfected
Lien on the Collateral described therein, prior and superior in right
to any other Person (other than with respect to Liens expressly
permitted by Section 7.3), shall be in proper form for filing,
registration or recordation.
(k) Mortgages, etc. (i) The Paying Agent shall have received a
Mortgage with respect to each Mortgaged Property, executed and
delivered by a duly authorized officer of each party thereto.
(ii) If requested by the Paying Agent, the Paying Agent shall have
received, and the title insurance company issuing the policy referred
to in clause (iii) below (the "Title Insurance Company") shall have
received, maps or plats of an as-built survey of the sites of the
Mortgaged Properties certified to the Paying Agent and the Title
Insurance Company in a manner satisfactory to them, dated a date
satisfactory to the Paying Agent and the Title Insurance Company by an
independent professional licensed land surveyor satisfactory to the
Paying Agent and the Title Insurance Company, which maps or plats and
the surveys on which they are based shall be made in accordance with
the Minimum Standard Detail Requirements for Land Title Surveys
jointly established and adopted by the American Land Title Association
and the American Congress on Surveying and Mapping in 1999, and,
without limiting the generality of the foregoing, there shall be
surveyed and shown on such maps, plats or surveys the following: (A)
the locations on such sites of all the buildings, structures and other
improvements and the established building setback lines; (B) the lines
of streets abutting the sites and width thereof; (C) all access and
other easements appurtenant to the sites; (D) all roadways, paths,
driveways, easements, encroachments and overhanging projections and
similar encumbrances affecting the site, whether recorded, apparent
from a physical inspection of the sites or otherwise known to the
surveyor; (E) any encroachments on any adjoining property by the
building structures and improvements on the sites; (F) if the site is
described as being on a filed map, a legend relating the survey to
said map; and (G) the flood zone designations, if any, in which the
Mortgaged Properties are located.
(iii) The Paying Agent shall have received in respect of each
Mortgaged Property a mortgagee's title insurance policy (or policies)
or marked up unconditional binder for such insurance. Each such policy
shall (A) be in an amount satisfactory to the Paying Agent; (B) be
issued at ordinary rates; (C) insure that the Mortgage insured thereby
creates a valid first Lien on such Mortgaged Property free and clear
of all defects and encumbrances, except as disclosed therein; (D) name
the Paying Agent for the benefit of the Lenders as the insured
thereunder; (E) be in the form of ALTA Loan Policy - 1992 (or
equivalent policies); (F) contain such endorsements and affirmative
coverage as the Paying Agent may reasonably request and (G) be issued
by title companies satisfactory to the Paying Agent (including any
such title companies acting as co-insurers or reinsurers, at the
option of the Paying Agent). The Paying Agent shall have received
evidence satisfactory to it that all premiums in respect of each such
policy, all charges for mortgage recording tax, and all related
expenses, if any, have been paid.
(iv) If requested by the Paying Agent, the Paying Agent shall have
received (A) a policy of flood insurance that (1) covers any parcel of
improved real property that is encumbered by any Mortgage (2) is
written in an amount not less than the outstanding principal amount of
the indebtedness secured by such Mortgage that is reasonably allocable
to such real property or the maximum limit of coverage made available
with respect to the particular type of property under the National
Flood Insurance Act of 1968, whichever is less, and (3) has a term
ending not later than the maturity of the Indebtedness secured by such
Mortgage and (B) confirmation that the Borrower has received the
notice required pursuant to Section 208(e)(3) of Regulation H of the
Board.
(v) The Paying Agent shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title
policy or policies referred to in clause (iii) above and a copy of all
other material documents affecting the Mortgaged Properties.
(l) Solvency Opinion. The Paying Agent shall have received a
solvency opinion from Xxxxxx Xxxxxx & Co.
(m) Insurance. The Paying Agent shall have received insurance
certificates satisfying the requirements of Section 5.2(b) of the
Guarantee and Collateral Agreement.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any
date (including its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Holdings and the Borrower hereby jointly and severally agree that,
so long as the Commitments remain in effect or the Payment Obligations have
not been Fully Satisfied, each of Holdings and the Borrower shall and shall
cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Lender, through the
Paying Agent:
(a) as soon as available, but in any event within 105 days after
the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Ernst & Young LLP or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Lender,
through the Paying Agent (or, in the case of clause (g), to the relevant
Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified
in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's
knowledge, each Loan Party during such period has observed or
performed all of its covenants and other agreements, and satisfied
every condition contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in
such certificate, (ii) a Compliance Certificate containing all
information and calculations necessary for determining compliance by
each Group Member with the provisions of this Agreement referred to
therein as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be, and, in the case of financial statements
covering periods ending on or after September 30, 2001, setting forth
the Applicable Margin determined by reference to the Pricing Grid and
the Consolidated Leverage Ratio calculated in connection with such
Compliance Certificate and (iii) to the extent not previously
disclosed to the Paying Agent, a listing of any county or state within
the United States where any Loan Party keeps inventory or equipment
and of any Intellectual Property acquired by any Loan Party since the
date of the most recent list delivered pursuant to this clause (or, in
the case of the first such list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than 60 days
after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the following fiscal year (including a
projected consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of the following fiscal year, the related
consolidated statements of projected cash flow, projected changes in
financial position and projected income and a description of the
underlying assumptions applicable thereto), and, as soon as available,
significant revisions, if any, of such budget and projections with
respect to such fiscal year (collectively, the "Projections"), which
Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on
reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect;
(d) within 50 days (or 105 days in the case of the fourth fiscal
quarter) after the end of each fiscal quarter of the Borrower, a
narrative discussion and analysis of the financial condition and
results of operations of the Borrower and its Subsidiaries for such
fiscal quarter and for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter, as compared to
the portion of the Projections covering such periods and to the
comparable periods of the previous year;
(e) as soon as reasonably practical prior to the effectiveness
thereof, copies of substantially final drafts of any proposed
amendment, supplement, waiver or other modification with respect to
the Acquisition Documentation;
(f) within five days after the same are sent, copies of all
financial statements and reports that Holdings or the Borrower sends
to the holders of any class of its debt securities or public equity
securities and, within five days after the same are filed, copies of
all financial statements and reports that Holdings or the Borrower may
make to, or file with, the SEC; and
(g) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be,
all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of the relevant Group Member. Notwithstanding
anything to the contrary in the foregoing sentence, the Borrower shall not
be in default under this Section 6.3 unless the aggregate amount of
non-contested obligations which the Group Members have so failed to pay,
discharge or satisfy before they become delinquent and which remain
delinquent at the time of determination is more than $2,000,000 in the
aggregate.
6.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew
and keep in full force and effect its organizational existence and (ii)
take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and Section 7.5
and except, in the case of clause (ii) above, to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect;
and (b) comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so would
not, in the aggregate, be reasonably likely to have a Material Adverse
Effect, and (b) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against
in the same general area by companies engaged in the same or a similar
business.
6.6 Inspection of Property; Books and Records; Discussions. (a)
Keep proper books of records and accounts in which full, true and correct
entries in conformity with GAAP and in all material respects with all
Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities and (b) permit representatives of
any Lender to visit and inspect any of its properties and examine and make
abstracts from any of its books and records it may reasonably request at
any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other
condition of the Group Members with officers and employees of the Group
Members and with their independent certified public accountants.
6.7 Notices. Promptly give notice to the Paying Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of any Group Member or (ii) litigation, investigation or
proceeding that may exist at any time between any Group Member and any
Governmental Authority, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member (i) in
which the amount involved is $2,000,000 or more and not covered by
insurance, (ii) in which injunctive or similar relief is sought or
(iii) which relates to any Loan Document;
(d) the following events, as soon as practicable ,and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan
or (ii) the institution of proceedings or the taking, or expected
taking, of any other action by the PBGC or the Borrower or any
Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal (including any partial withdrawal) from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the relevant Group Member
proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply with, and ensure compliance by
all tenants and subtenants, if any, with, all applicable Environmental
Laws, and obtain and comply with and maintain, and ensure that all tenants
and subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws,
except (i) to the extent that the failure to perform any of the obligations
contained in this Section 6.8(b) could not reasonably be expected to have a
Material Adverse Effect or (ii) to the extent that such obligations are
being contested in good faith by appropriate proceedings and the pendency
of such proceedings could not reasonably be expected to have a Material
Adverse Effect.
6.9 Additional Collateral, etc. (a) With respect to any property acquired after
the Closing Date by any Group Member (other than (x) any property described in
paragraph (b), (c) or (d) below, (y) any property subject to a Lien expressly
permitted by Section 7.2(e) and (z) property acquired by any Excluded Foreign
Subsidiary) as to which the Paying Agent, for the benefit of the Lenders, does
not have a perfected Lien, promptly (i) execute and deliver to the Paying Agent
such amendments to the Guarantee and Collateral Agreement or such other
documents as the Paying Agent deems necessary or advisable to grant to the
Paying Agent, for the benefit of the Lenders, a security interest in such
property and (ii) take all actions necessary or advisable to grant to the Paying
Agent, for the benefit of the Lenders, a perfected first priority security
interest in such property, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Paying Agent.
(b) With respect to any fee interest in any real property having a
value (together with improvements thereof) of at least $1,000,000 acquired
after the Closing Date by any Group Member (other than (x) any such real
property subject to a Lien expressly permitted by Section 7.2(e) and (y)
real property acquired by any Excluded Foreign Subsidiary), promptly (i)
execute and deliver a first priority Mortgage, in favor of the Paying
Agent, for the benefit of the Lenders subject to Liens permitted by Section
7.2, covering such real property, (ii) if requested by the Paying Agent,
provide the Lenders with (x) title and extended coverage insurance covering
such real property in an amount at least equal to the purchase price of
such real property (or such other amount as shall be reasonably specified
by the Paying Agent) as well as a current ALTA survey thereof, together
with a surveyor's certificate and (y) any consents or estoppels reasonably
deemed necessary or advisable by the Paying Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably
satisfactory to the Paying Agent and (iii) if requested by the Paying
Agent, deliver to the Paying Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Paying Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary) created or acquired after the Closing Date by any Group
Member (which, for the purposes of this paragraph (c), shall include any
existing Subsidiary that ceases to be an Excluded Foreign Subsidiary),
promptly (i) execute and deliver to the Paying Agent such amendments to the
Guarantee and Collateral Agreement as the Paying Agent deems necessary or
advisable to grant to the Paying Agent, for the benefit of the Lenders, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by any Group Member, (ii) deliver to the Paying
Agent the certificates representing such Capital Stock, together with
undated stock powers, in blank, executed and delivered by a duly authorized
officer of the relevant Group Member, (iii) cause such new Subsidiary (A)
to become a party to the Guarantee and Collateral Agreement, (B) to take
such actions necessary or advisable to grant to the Paying Agent for the
benefit of the Lenders a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with respect
to such new Subsidiary, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be requested by the
Paying Agent and (C) to deliver to the Paying Agent a certificate of such
Subsidiary, substantially in the form of Exhibit C, with appropriate
insertions and attachments, and (iv) if requested by the Paying Agent,
deliver to the Paying Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Paying Agent.
(b) With respect to (x) any new Excluded Foreign Subsidiary
created or acquired after the Closing Date by any Group Member (other than
by any Group Member that is an Excluded Foreign Subsidiary) or (y) any
Immaterial Foreign Subsidiary that ceases to be an Immaterial Foreign
Subsidiary after the Closing Date, promptly (i) execute and deliver to the
Paying Agent such amendments to the Guarantee and Collateral Agreement as
the Paying Agent deems necessary or advisable to grant to the Paying Agent,
for the benefit of the Lenders, a perfected first priority security
interest in the Capital Stock of such Subsidiary that is owned by any such
Group Member (provided that in no event shall more than 66% of the total
outstanding voting Capital Stock of any such Subsidiary be required to be
so pledged), (ii) deliver to the Paying Agent the certificates representing
such Capital Stock, together with undated stock powers, in blank, executed
and delivered by a duly authorized officer of the relevant Group Member,
and take such other action as may be necessary or, in the opinion of the
Paying Agent, desirable to perfect the Paying Agent's security interest
therein, and (iii) if requested by the Paying Agent, deliver to the Paying
Agent legal opinions relating to the matters described above, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Paying Agent.
SECTION 7. NEGATIVE COVENANTS
Holdings and the Borrower hereby jointly and severally agree that,
so long as the Commitments remain in effect or the Payment Obligations have
not been fully satisfied, each of Holdings and the Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the last day of any fiscal quarter ending during any period set
forth below to exceed the ratio set forth below opposite such period:
Consolidated Leverage
Period Ratio
Closing Date - June 30, 2002 3.00 to 1.00
July 1, 2002 - December 31, 2002 2.75 to 1.00
January 1, 2003 - June 30, 2003 2.50 to 1.00
July 1, 2003 - September 30, 2003 2.25 to 1.00
October 1, 2003 and thereafter 2.00 to 1.00
(b) Interest Coverage. Permit the Interest Coverage Ratio as of
the last day of any fiscal quarter to be less than (i) 2.75 to 1.00 (in the
case of any quarter ending on or prior to September 30, 2001) or (ii) 3.00
to 1.00 (in the case of any fiscal quarter ending thereafter); provided
that for the purposes of determining the Interest Coverage Ratio for the
fiscal quarters of the Borrower ending March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001, Consolidated Interest Expense for
the relevant period shall equal the product of (x) Consolidated Interest
Expense for the period (the "Interim Period") between the Closing Date and
such fiscal quarter end date, and (y) a fraction the numerator of which is
365 and the denominator of which is the number of days in such Interim
Period.
(c) Capital Expenditures: Make or commit to make any Capital
Expenditure, except Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not exceeding (i)
$2,500,000 during the calendar year ending December 31, 2001, (ii)
$3,000,000 during each of the calendar years ending, respectively, December
31, 2002, December 31, 2003 and December 31, 2004 and (iii) $3,500,000
during the calendar year ending December 31, 2005 and each calendar year
thereafter.
7.2 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of their properties, assets (including shares of Capital
Stock) or revenues, whether now owned or hereafter acquired, except for the
following (collectively, "Permitted Exceptions"):
(a) Liens for taxes not yet due or which are being contested in
good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower or any of its
Subsidiaries, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen', mechanics', materialmen', repairmen'
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with workmen's compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), government contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred and statutory or contractual bankers'
Liens on monies held in bank accounts in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of property or minor imperfections in title thereto which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens created pursuant to the Security Documents;
(g) Liens in favor of the United States for amounts paid by the
Borrower or any of its Subsidiaries as progress payments under government
contracts entered into by them;
(h) any interest or title of a lessor under any lease entered into
by the Borrower or any other Subsidiary in the ordinary course of its
business and covering only the assets so leased;
(i) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings, provided that the same
are discharged, or that execution or enforcement thereof is stayed pending
appeal, within 30 days or (in the case of any execution or enforcement
pending appeal) such lesser time during which such appeal may be taken;
(j) Liens granted in the ordinary course of business of the
Borrower or any of its Subsidiaries in favor of issuers of documentary or
trade letters of credit for the account of the Borrower or such Subsidiary
which support the purchase and/or importation of inventory of the Borrower
and its Subsidiaries, which Liens secure the reimbursement obligations of
the Borrower or such Subsidiary on account of such letters of credit;
provided that each such Lien is limited to (i) the assets acquired or
shipped with the support of such letter of credit and (ii) any assets of
the Borrower or such Subsidiary which are in the care, custody or control
of such issuer in the ordinary course of business;
(k) possessory Liens in favor of brokers and dealers arising in
connection with the acquisition or disposition of investments of the type
permitted by Section 7.7(a)(ii); provided that such Liens (i) attach only
to such investments and (ii) secure only obligations incurred in the
ordinary course and arising in connection with the acquisition or
disposition of such investments and not any obligation in connection with
margin financing;
(l) Liens set forth in Schedule 7.2(l);
(m) Liens on the assets of any Foreign Subsidiary securing
Indebtedness of such Foreign Subsidiary permitted by Section 7.10;
(n) Liens securing Indebtedness in an aggregate amount at any one
time outstanding not in excess of $1,000,000 incurred to purchase or
finance the purchase of real or personal property; provided that (i) such
Liens shall be created substantially simultaneously with the purchase of
such property, (ii) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness, (iii) the amount of
Indebtedness is not increased and (iv) the principal amount of Indebtedness
secured by any such Lien shall at no time exceed 100% of the purchase price
of such property;
(o) Liens on the property of a Person which becomes a Subsidiary
after the date hereof securing Indebtedness of such Subsidiary (provided
that (i) such Liens and Indebtedness existed at the time such Person became
a Subsidiary and were not incurred in anticipation thereof, (ii)
immediately after giving effect to the acquisition of such Person, no
Default or Event of Default shall have occurred and be continuing, (iii)
the aggregate principal amount of such Indebtedness does not exceed
$2,000,000, (iv) any such Lien is not spread to cover any other property of
such Person after the time such Person becomes a Subsidiary and (v) the
amount of the Indebtedness secured thereby is not increased; and
(p) any extension, renewal or replacement of the foregoing;
provided that the Liens permitted by this paragraph shall not extend to or
cover any additional Indebtedness or property (other than a substitution of
like property).
7.3 Limitation on Guarantee Obligations. Agree to, or assume or
incur, or otherwise in any way be or become responsible or liable, directly
or indirectly, with respect to, any Guarantee Obligation other than:
(a) Guarantee Obligations pursuant to the Guarantee and Collateral
Agreement;
(b) Guarantee Obligations of any Subsidiary of the Borrower in the
nature of a guarantee of Indebtedness or other obligations of the Borrower
or any other Wholly Owned Subsidiary of the Borrower (including, without
limitation, any Wholly Owned Subsidiary incurring such Guarantee
Obligations);
(c) Guarantee Obligations of any Person which becomes a Subsidiary
after the date hereof, provided that (i) such Guarantee Obligations existed
at the time such Person became a Subsidiary and were not created in
anticipation thereof; (ii) immediately after giving effect to the
acquisition of such Person, no Default or Event of Default shall have
occurred or be continuing and (iii) the amount thereof does not result in a
violation of Section 7.7(g).
(d) Guarantee Obligations of the Borrower in the nature of
guarantees of Indebtedness or other obligations of any of its Wholly Owned
Subsidiaries to the extent such Indebtedness or other obligations, as the
case may be, is not prohibited by this Agreement.
7.4 Limitation on Fundamental Changes. Enter into any transaction
in the nature of merger or consolidation or amalgamation, or liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution),
Dispose of, in one transaction or a series of related transactions, all or
substantially all of the business or assets of the Borrower, or enter into
any such transaction or series of related transactions with regard to a
group of Subsidiaries which, if merged into a single Subsidiary, would
constitute a substantial part of the business or assets of the Borrower, or
acquire by purchase or otherwise all or substantially all the business or
assets of, or Capital Stock or other evidences of beneficial ownership of,
any Person, except that:
(a) any Subsidiary of the Borrower (i) may be merged or
consolidated with or into, or its assets liquidated and distributed to, the
Borrower, provided that the Borrower shall be the continuing or surviving
corporation or (ii) may be merged or consolidated with or into, or its
assets liquidated and distributed to, any one or more Wholly Owned
Subsidiaries of the Borrower; provided that no Domestic Subsidiary may be
merged or consolidated with or into a Foreign Subsidiary unless a Domestic
Subsidiary is the continuing or surviving entity and no Domestic Subsidiary
may have its assets liquidated and distributed to any Foreign Subsidiary;
(b) any Subsidiary of the Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Borrower or a
Wholly Owned Subsidiary of the Borrower and, in the event such Subsidiary
shall so Dispose of all of its assets, such Subsidiary may liquidate, wind
up or dissolve; provided that no Domestic Subsidiary may Dispose of any of
its assets to any Foreign Subsidiary other than in the ordinary course of
business;
(c) the Borrower and its Subsidiaries may make acquisitions and
purchases permitted by Section 7.7; and
(d) any Foreign Subsidiary that does not have any property may
liquidate, wind up or dissolve.
7.5 Limitation on Sale of Assets. Dispose of any of its assets
(including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any of the
Subsidiaries of the Borrower, issue any shares of Capital Stock (other than
any director's qualifying shares), to any Person other than the Borrower or
any of its Subsidiaries, except:
(a) as permitted by Sections 7.2 or 7.4;
(b) the sale or other disposition (including abandonment) of any
property (including intellectual property rights) which has become
uneconomic, obsolete or worn out and which is disposed of in the ordinary
course of business;
(c) the sale of inventory in the ordinary course of business;
(d) licensing agreements entered into with respect to trademarks,
patents, trade secrets or know-how in the ordinary course of business;
(e) the Botanical Sale; and
(f) from the Closing Date Dispositions of property not having a
value together with all other Dispositions pursuant to this clause (f) in
excess of $5,000,000.
7.6 Limitation on Restricted Payments. Make any Restricted
Payment, except that the following Restricted Payments may be made:
(a) Restricted Payments to Holdings in amounts equal to the
amounts required for Holdings to pay franchise and similar taxes and other
fees required to maintain its corporate existence;
(b) Restricted Payments necessary for M&F Worldwide to pay (i)
franchise and similar taxes, (ii) other fees required to maintain its
corporate existence, and (iii) other out-of-pocket expenses incurred in the
ordinary course of business resulting from M&F Worldwide's status as a
publicly held corporation;
(c) Restricted Payments necessary for Holdings, the Borrower and
any of its Subsidiaries to pay federal, state and local taxes to the extent
such taxes are attributable to the operations of the Borrower and its
Subsidiaries;
(d) Restricted Payments by any Subsidiary to its parent company so
long as such parent company is the Borrower or a Wholly Owned Subsidiary;
(e) Dividends made with the proceeds of Loans in an aggregate
amount not to exceed $80,000,000, so long as, concurrently therewith, such
dividends are applied to finance a portion of the Acquisition; and
(f) so long as no Default or Event of Default is in existence,
dividends made with the proceeds of the Pension Reversion and the Botanical
Sale.
7.7 Limitation on Investments, Loans and Advances. Make or commit
to make any advance, loan, extension of credit or capital contribution to,
or purchase any Capital Stock, bonds, notes, debentures or other securities
of, or any assets constituting a business unit of, or make any other
investment in, any Person (other than the Borrower or any of its
Subsidiaries), except:
(a) investments by the Borrower and its Subsidiaries in (i)
accounts, contract rights and chattel paper (as defined in the Uniform
Commercial Code), put and call foreign exchange options and foreign
exchange forwards and futures to the extent necessary to hedge foreign
exchange exposures and notes receivable, arising or acquired in the
ordinary course of business and in Hedge Agreements and (ii) Cash
Equivalents;
(b) investments in Cash Equivalents;
(c) investments by Foreign Subsidiaries in investments of a type
similar to Cash Equivalents made outside of the United States;
(d) extensions of trade credit in the ordinary course of business;
(e) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers or in settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising out of the ordinary course of business; provided that the Borrower
and its Subsidiaries have paid no new consideration (other than forgiveness
of Indebtedness or other obligations) therefor;
(f) advances to suppliers in the ordinary course of business in an
amount not exceeding in the aggregate $1,000,000 at any time outstanding to
any one supplier or an aggregate for the Borrower and its Subsidiaries of
$2,000,000 at any time outstanding; provided that each such advance, is
required to be repaid within 180 days of the making of such advance;
(g) so long as no Default or Event of Default shall have occurred
and be continuing, or would result therefrom (including, without
limitation, compliance with Section 7.13), other investments in Persons not
to exceed, when added to the outstanding amount of Guarantee Obligations
incurred pursuant to Section 7.3(c), $5,000,000 in the aggregate at any
time (and such investments to be measured by their fair market value at the
time of the investment); and
(h) loans and advances to officers, directors and employees in the
ordinary course of business (including, without limitation, for travel,
entertainment and relocation expenses) not to exceed $1,000,000 in the
aggregate at any time outstanding.
7.8 Sale and Leaseback. Enter into any arrangement with any Person
whereby the Borrower shall sell or transfer any property, real or personal,
whether now owned or hereafter acquired, and thereafter rent or lease such
property.
7.9 Limitation on Transactions with Affiliates. Enter into any
transaction (including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service) with any Affiliate of
the Borrower (other than the Borrower or any Wholly Owned Subsidiary of the
Borrower) unless such transactions are not otherwise prohibited under this
Agreement, are in the ordinary course of business and are upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary, as
the case may be, than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate; provided that nothing contained
in this Section shall be deemed to prohibit any transaction described in or
contemplated by the agreements (the "Transaction Agreements") listed on
Schedule 7.9 (as such agreements may be amended, supplemented or otherwise
modified from time to time with, to the extent that such amendment,
supplement or modification could reasonably be expected to have a material
adverse effect on the rights or interests of the Administrative Agent or
the Lenders, the consent of the Required Lenders).
7.10 Indebtedness. Create, incur or suffer to exist any
Indebtedness except: -
(a) Indebtedness to the Lenders hereunder and under the other Loan
Documents;
(b) Indebtedness in respect of Specified Hedging Agreements
entered into for non-speculative purposes;
(c) Indebtedness outstanding on the date hereof and listed in
Schedule 7.10(c), any refinancings, refundings, renewals or extensions
thereof that do not increase the principal amount thereof and other
Indebtedness outstanding on the date hereof in an aggregate principal
amount not to exceed $250,000;
(d) Indebtedness of (i) Subsidiaries to the Borrower or to other
Subsidiaries and (ii) the Borrower to any of its Subsidiaries;
(e) Indebtedness of the Borrower and its Subsidiaries secured by
Liens permitted by Section 7.2(n) hereof;
(f) Indebtedness of Foreign Subsidiaries in an aggregate principal
amount not to exceed $5,000,000 at any time;
(g) Capital Lease Obligations in an aggregate principal amount not
to exceed $1,000,000; and
(h) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $2,000,000 at any one time outstanding.
7.11 Limitation on Modifications of Tax Allocation Agreement.
Modify or waive any provision of the Tax Allocation Agreement to the extent
such amendment, modification or waiver would be reasonably likely to have a
material adverse effect on the interests of the Lenders hereunder and under
the other Loan Documents.
7.12 Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than this Agreement, which prohibits or limits
the ability of the Borrower or any of its Subsidiaries to create, incur,
assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired; provided that any of the
Borrower and its Subsidiaries may enter into any such agreement to the
extent that such agreement is in connection with a Lien permitted by
Section 7.2 or a sale of assets permitted by Section 7.5 and any such
prohibitions or limitations apply only to the Property encumbered by such
Lien or subject to such sale.
7.13 Limitation on Lines of Business. Principally engage in any
business or activity other than the business conducted by the Borrower and
its Subsidiaries on the Closing Date and businesses and activities
reasonably related thereto.
7.14 Limitation on Restrictions on Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) pay
dividends or make any other distributions in respect of any Capital Stock
of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower
or any other Subsidiary of the Borrower, (b) make loans or advances to the
Borrower or any other Subsidiary of the Borrower or (c) transfer any of its
assets to the Borrower or any other Subsidiary of the Borrower, except for
such encumbrances or restrictions existing under or by reason of (i) any
restrictions existing under the Credit Documents, (ii) any restrictions
with respect to a Subsidiary imposed pursuant to an agreement which has
been entered into in connection with the disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary or
(iii) any restrictions with respect to the Borrower or any of its
Subsidiaries imposed pursuant to an agreement which has been entered into
in connection with a Lien permitted by Section 7.2 or a sale of assets
permitted by Section 7.5 and any such prohibitions or limitations apply
only to the Property encumbered by such Lien or subject to such sale.
7.15 Amendments to Acquisition Documents. Amend, supplement or
otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the Acquisition Documentation in a manner materially adverse
to the interests of the Lenders or the Loan Parties.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof;
or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or
under any other Loan Document, within five days after any such
interest or other amount becomes due in accordance with the terms
hereof; or
(b any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it
at any time under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made; or
(c) (i) any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of
Section 6.4(a) (with respect to Holdings and the Borrower only),
Section 6.7(a) or Section 7 of this Agreement or Sections 5.5 and
5.7(b) of the Guarantee and Collateral Agreement or (ii) an "Event of
Default" under and as defined in any Mortgage shall have occurred and
be continuing; or
(d) any Loan Party shall default in the observance or performance
of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of
30 days after notice to the Borrower from the Paying Agent or the
Required Lenders; or
(e) any Group Member shall (i) default in making any payment of
any principal of any Indebtedness (including any Guarantee Obligation,
but excluding the Loans) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest
on any such Indebtedness beyond the period of grace, if any, provided
in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause,
or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause,
with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided, that
a default, event or condition described in clause (i), (ii) or (iii)
of this paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of
this paragraph (e) shall have occurred and be continuing with respect
to Indebtedness the outstanding principal amount of which exceeds in
the aggregate $2,000,000; or
(f) (i) any Group Member shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or any Group
Member shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Group Member
any case, proceeding or other action of a nature referred to in clause
(i) above that (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall
be commenced against any Group Member any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any
Group Member shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) any Group Member
shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or
(g) (i) any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could, in the sole judgment of the
Required Lenders, reasonably be expected to have a Material Adverse
Effect; or
(h) one or more judgments or decrees shall be entered against any
Group Member involving in the aggregate a liability (not covered by
insurance) of $2,000,000 or more, and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason
(other than as a result of any act on the part of the Paying Agent or
any Lender), to be in full force and effect, or any Loan Party or any
Affiliate of any Loan Party shall so assert, or any Lien created by
any of the Security Documents shall cease (other than as a result of
any act on the part of the Paying Agent or any Lender) to be
enforceable and of the same effect and priority purported to be
created thereby; or
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force
and effect or any Loan Party or any Affiliate of any Loan Party shall
so assert; or
(k) (i) Holdings shall fail to own, beneficially and of record,
and control all of the issued and outstanding Capital Stock of the
Borrower, (ii) M&F Worldwide shall fail to own, beneficially and of
record, and control all of the issued and outstanding Capital Stock of
PVI Acquisition or (iii) any Change of Control shall occur;
(l) Holdings or PVI Acquisition shall (i) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise
engage in, any business or operations other than those incidental to
its ownership of the Capital Stock of the Borrower or Panavision, as
the case may be, (ii) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or financial obligations, except (x)
nonconsensual obligations imposed by operation of law, (y) pursuant to
the Loan Documents to which it is a party and (z) obligations with
respect to its Capital Stock, or (iii) own, lease, manage or otherwise
operate any properties or assets (including cash (other than cash
received by Holdings in connection with dividends made by the Borrower
in accordance with Section 7.6 pending application in the manner
contemplated by said Section) and Cash Equivalents) other than the
ownership of shares of Capital Stock of the Borrower or Panavision, as
the case may be; or
(m) the proceeds of the dividends made pursuant to Section 7.6(d)
shall (i) be used for any purpose other than to finance the
Acquisition or to make investments in Panavision or the Borrower or to
pay the fees and expenses in connection with the foregoing or (ii)
pending such use, be held by any Person other than Holdings, PVI
Acquisition or M&F Worldwide Corp. then, and in any such event, (A) if
such event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Lenders, the Paying Agent
may, or upon the request of the Required Lenders, the Paying Agent
shall, by notice to the Borrower declare the Revolving Commitments to
be terminated forthwith, whereupon the Revolving Commitments shall
immediately terminate; and (ii) with the consent of the Required
Lenders, the Paying Agent may, or upon the request of the Required
Lenders, the Paying Agent shall, by notice to the Borrower, declare
the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the
same shall immediately become due and payable. With respect to all
Letters of Credit with respect to which presentment for honor shall
not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Paying Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Paying Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrower hereunder and under
the other Loan Documents. After all Payment Obligations have been
Fully Satisfied, the balance, if any, in such cash collateral account
shall be returned to the Borrower (or such other Person as may be
lawfully entitled thereto). Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived by the Borrower.
SECTION 9.THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Paying Agent as the agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes
the Paying Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to
the Paying Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Paying Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Paying Agent.
9.2 Delegation of Duties. The Paying Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Paying Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this Agreement or
any other Loan Document (except to the extent that any of the foregoing are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties
made by any Loan Party or any officer thereof contained in this Agreement
or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents
under or in connection with, this Agreement or any other Loan Document or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any failure
of any Loan Party a party thereto to perform its obligations hereunder or
thereunder. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Paying Agent. The Paying Agent shall be entitled
to rely, and shall be fully protected in relying, upon any instrument,
writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to Holdings or the
Borrower), independent accountants and other experts selected by the Paying
Agent. The Paying Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Paying
Agent. The Paying Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders (or,
if so specified by this Agreement, all Lenders) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense that may be incurred by it by reason of
taking or continuing to take any such action. The Paying Agent shall in all
cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of
the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of the Loans.
9.5 Notice of Default. The Paying Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of
Default unless the Paying Agent has received notice from a Lender, Holdings
or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In
the event that the Paying Agent receives such a notice, the Paying Agent
shall give notice thereof to the Lenders. The Paying Agent shall take such
action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Paying Agent
shall have received such directions, the Paying Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates
have made any representations or warranties to it and that no act by any
Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender
represents to the Agents that it has, independently and without reliance
upon any Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates and
made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Paying Agent hereunder, the Paying Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of any
Loan Party or any affiliate of a Loan Party that may come into the
possession of the Paying Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by Holdings or the
Borrower and without limiting the obligation of Holdings or the Borrower to
do so), ratably according to their respective Aggregate Exposure
Percentages in effect on the date on which indemnification is sought under
this Section (or, if indemnification is sought after the date upon which
the Commitments shall have terminated and the Loans shall have been paid in
full, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred
by or asserted against such Agent in any way relating to or arising out of,
the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have
resulted from such Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all
other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in
any kind of business with any Loan Party as though such Agent were not an
Agent. With respect to its Loans made or renewed by it and with respect to
any Letter of Credit issued or participated in by it, each Agent shall have
the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include each Agent in its
individual capacity.
9.9 Successor Paying Agent. The Paying Agent may resign as Paying
Agent upon 10 days' notice to the Lenders and the Borrower. If the Paying
Agent shall resign as Paying Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an
Event of Default under Section 8(a) or Section 8(f) with respect to the
Borrower shall have occurred and be continuing) be subject to approval by
the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights,
powers and duties of the Paying Agent, and the term "Paying Agent" shall
mean such successor agent effective upon such appointment and approval, and
the former Paying Agent's rights, powers and duties as Paying Agent shall
be terminated, without any other or further act or deed on the part of such
former Paying Agent or any of the parties to this Agreement or any holders
of the Loans. If no successor agent has accepted appointment as Paying
Agent by the date that is 10 days following a retiring Paying Agent's
notice of resignation, the retiring Paying Agent's resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Paying Agent hereunder until such time, if
any, as the Required Lenders appoint a successor agent as provided for
above. After any retiring Paying Agent's resignation as Paying Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Paying Agent under this
Agreement and the other Loan Documents.
9.10 Documentation Agent. The Documentation Agent shall have no
duties or responsibilities hereunder in its capacity as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this Section 10.1.
The Required Lenders and each Loan Party party to the relevant Loan
Document may, or, with the written consent of the Required Lenders, the
Paying Agent and each Loan Party party to the relevant Loan Document may,
from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Loan Parties
hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Paying Agent, as the case may be, may specify in
such instrument, any of the requirements of this Agreement or the other
Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment in respect of any Term Loan, reduce the stated rate of
any interest or fee payable hereunder (except (x) in connection with the
waiver of applicability of any post-default increase in interest rates and
(y) that any amendment or modification of defined terms used in the
financial covenants in this Agreement shall not constitute a reduction in
the rate of interest or fees for purposes of this clause (i)) or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender's Revolving Commitment, in each case without
the written consent of each Lender directly affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this Section 10.1
without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Required Lenders, consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, release all or substantially all of
the Collateral or release all or substantially all of the Subsidiary
Guarantors from their obligations under the Guarantee and Collateral
Agreement, in each case without the written consent of all Lenders; (iv)
amend, modify or waive any provision of Section 9 without the written
consent of the Paying Agent; or (v) amend, modify or waive any provision of
Section 3 without the written consent of the Issuing Lender. Any such
waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties,
the Lenders, the Paying Agent and all future holders of the Loans. In the
case of any waiver, the Loan Parties, the Lenders and the Paying Agent
shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall
be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Paying Agent and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from
time to time outstanding thereunder and the accrued interest and fees in
respect thereof to share ratably in the benefits of this Agreement and the
other Loan Documents with the Term Loans and Revolving Extensions of Credit
and the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, addressed as follows in the case of
Holdings, the Borrower and the Paying Agent, and as set forth in an
administrative questionnaire delivered to the Paying Agent in the case of
the Lenders, or to such other address as may be hereafter notified by the
respective parties hereto:
Holdings: Flavors Holdings Inc.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Senior Vice President -
Finance
Telecopy: (000) 000-0000
Borrower: Pneumo Abex Corporation
(d/b/a Mafco Worldwide Corporation)
Third Street and Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Senior Vice President -
Finance
Telecopy: (000) 000-0000
Paying Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
The Chase Manhattan Bank Agency Services
Corporation
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Paying Agent or
the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Paying Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents
and in any document, certificate or statement delivered pursuant hereto or
in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit
hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Paying Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of,
and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees
and disbursements of counsel to the Paying Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be
submitted to the Borrower prior to the Closing Date (in the case of amounts
to be paid on the Closing Date) and from time to time thereafter on a
quarterly basis or such other periodic basis as the Paying Agent shall
reasonably deem appropriate but not including any fees and disbursements of
counsel to Lenders (other than the Paying Agent), (b) to pay or reimburse
each Lender and the Paying Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including
the reasonable fees and disbursements of counsel (including the allocated
fees and expenses of in-house counsel) to each Lender and of counsel to the
Paying Agent, (c) to pay, indemnify, and hold each Lender and the Paying
Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation
or administration of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the Paying
Agent and their respective officers, directors, employees, affiliates,
agents and controlling persons (each, an "Indemnitee") harmless from and
against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other
Loan Documents and any such other documents, including any of the foregoing
relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to
the operations of any Group Member or any of the Properties and the
reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any
Loan Document (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no
obligation hereunder to any Indemnitee with respect to (i) Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final
decision of a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of such Indemnitee, (ii) legal
proceedings commenced against any Lender or any Issuing Lender (in their
respective capacities as such) by any other Lender or by the Paying Agent
(provided that for purposes of this clause (ii) only, each of such other
Lender, Issuing Lender and the Paying Agent shall be entitled to indemnity
hereunder to the extent that such legal proceedings have been commenced by
it to enforce the provisions of the Loan Documents) or (iii) amounts of the
types referred to in clauses (a) through (c) above except as provided
therein. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them might have
by statute or otherwise against any Indemnitee. All amounts due under this
Section 10.5 shall be payable not later than 10 days after written demand
therefor. Statements payable by the Borrower pursuant to this Section 10.5
shall be submitted to the Borrower's treasurer (Telephone No. (856)
000-0000)(Telecopy No. (000) 000-0000),at the address of the Borrower set
forth in Section 10.2, or to such other Person or address as may be
hereafter designated by the Borrower in a written notice to the Paying
Agent. The agreements in this Section 10.5 shall survive repayment of the
Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of Holdings,
the Borrower, the Lenders, the Paying Agent, all future holders of the
Loans and their respective successors and assigns, except that the Borrower
may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the
consent of the Borrower, in accordance with applicable law, at any time
sell to one or more banks, financial institutions or other entities (each,
a "Participant") participating interests in any Loan owing to such Lender,
any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale
by a Lender of a participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan
for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Paying Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations
under this Agreement and the other Loan Documents. In no event shall any
Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent
to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or
interest on, the Loans or any fees payable hereunder, or postpone the date
of the final maturity of the Loans, in each case to the extent subject to
such participation. The Borrower agrees that if amounts outstanding under
this Agreement and the Loans are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 10.7(a)
as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of Sections 2.16, 2.17
and 2.18 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the
case of Section 2.17, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "Assignor") may,
in accordance with applicable law, at any time and from time to time assign
to any Lender or any Lender Affiliate or, with the consent of the Borrower
and the Paying Agent (which, in each case, shall not be unreasonably
withheld or delayed), to an additional bank, financial institution or other
entity (an "Assignee") all or any part of its rights and obligations under
this Agreement and the other Loan Documents pursuant to an Assignment and
Acceptance, executed by such Assignee, such Assignor and any other Person
whose consent is required pursuant to this paragraph, and delivered to the
Paying Agent for its acceptance and recording in the Register; provided
that, unless otherwise agreed by the Borrower and the Paying Agent, no such
assignment to an Assignee (other than any Lender or any Lender Affiliate)
shall be in an aggregate principal amount of less than $1,000,000, in each
case except in the case of an assignment of all of a Lender's interests
under this Agreement. For purposes of the proviso contained in the
preceding sentence, the amount described therein shall be aggregated in
respect of each Lender and its Lender Affiliates, if any. Any such
assignment need not be ratable as among the Facilities. Upon such
execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment and/or Loans as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of an Assignor's
rights and obligations under this Agreement, such Assignor shall cease to
be a party hereto). Notwithstanding any provision of this Section 10.6, the
consent of the Borrower shall not be required for any assignment that
occurs when an Event of Default pursuant to Section 8(a) or Section 8(f)
(with respect to the Borrower) shall have occurred and be continuing.
Notwithstanding the foregoing, any Conduit Lender may assign at any time to
its designating Lender hereunder without the consent of the Borrower or the
Paying Agent any or all of the Loans it may have funded hereunder and
pursuant to its designation agreement and without regard to the limitations
set forth in the first sentence of this Section 10.6(c). (d) The Paying
Agent shall, on behalf of the Borrower, maintain at its address referred to
in Section 10.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitment of, and the principal amount of
the Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, each other Loan Party, the Paying Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of
the Loans and any Notes evidencing the Loans recorded therein for all
purposes of this Agreement. Any assignment of any Loan, whether or not
evidenced by a Note, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly
so provide). Any assignment or transfer of all or part of a Loan evidenced
by a Note shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance, and thereupon one
or more new Notes in the same aggregate principal amount shall be issued to
the designated Assignee and the old Notes shall be returned by the Paying
Agent to the Borrower marked "canceled". The Register shall be made
available for inspection by the Borrower at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an Assignor, an Assignee and any other Person whose consent is required by
Section 10.6(c), together with payment to the Paying Agent of a
registration and processing fee of $4,000, the Paying Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) record the
information contained therein in the Register on the effective date
determined pursuant thereto and give notice of such acceptance and
recordation to the Borrower.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning assignments
relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender to any Federal Reserve Bank in accordance with
applicable law.
(g) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (f) above.
(h) Each of Holdings, the Borrower, each Lender and the Paying
Agent hereby confirms that it will not institute against a Conduit Lender
or join any other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one
day after the payment in full of the latest maturing commercial paper note
issued by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense
arising out of its inability to institute such a proceeding against such
Conduit Lender during such period of forbearance.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular
Lender or to the Lenders under a particular Facility, if any Lender (a
"Benefitted Lender") shall, at any time after the Loans and other amounts
payable hereunder shall immediately become due and payable pursuant to
Section 8, receive any payment of all or part of the Obligations owing to
it, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than
any such payment to or collateral received by any other Lender, if any, in
respect of the Obligations owing to such other Lender, such Benefitted
Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other
Lender, or shall provide such other Lenders with the benefits of any such
collateral, as shall be necessary to cause such Benefitted Lender to share
the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to Holdings
or the Borrower, any such notice being expressly waived by Holdings and the
Borrower to the extent permitted by applicable law, upon acceleration of
any Obligations pursuant to Section 8, to set off and appropriate and apply
against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit
or the account of Holdings or the Borrower, as the case may be. Each Lender
agrees promptly to notify the Borrower and the Paying Agent after any such
setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and
application.
10.8 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the Paying
Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of Holdings, the Borrower, the Paying Agent
and the Lenders with respect to the subject matter hereof and thereof, and
there are no promises, undertakings, representations or warranties by the
Paying Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each of Holdings and
the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United
States for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Holdings or the Borrower, as the case may be to each of
their respective addresses set forth in Section 10.2 or at such other
address of which the Paying Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgements. Each of Holdings and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither the Paying Agent nor any Lender has any fiduciary
relationship with or duty to Holdings or the Borrower arising out of
or in connection with this Agreement or any of the other Loan
Documents, and the relationship between Paying Agent and Lenders, on
one hand, and Holdings and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among Holdings, the Borrower
and the Lenders.
10.14 Releases of Guarantees and Liens. (a) Notwithstanding
anything to the contrary contained herein or in any other Loan Document,
the Paying Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly
required by Section 10.1) to take any action requested by the Borrower
having the effect of releasing any Collateral or guarantee obligations (i)
to the extent necessary to permit consummation of any transaction not
prohibited by any Loan Document or that has been consented to in accordance
with Section 10.1 or (ii) under the circumstances described in paragraph
(b) below. (b) At such time as the Payment Obligations have been Fully
Satisfied, the Collateral shall be released from the Liens created by the
Security Documents, and the Security Documents and all obligations (other
than those expressly stated to survive such termination) of the Paying
Agent and each Loan Party under the Security Documents shall terminate, all
without delivery of any instrument or performance of any act by any Person.
At the request and sole expense of Holdings, PVI Acquisition, the Borrower
or any Subsidiary following any such termination, the Paying Agent shall
deliver to Holdings, PVI Acquisition, the Borrower or such Subsidiary any
Collateral held by the Paying Agent thereunder and execute and deliver to
Holdings, PVI Acquisition, the Borrower or such Subsidiary such documents
as it shall reasonably request to evidence such termination.
10.15 Confidentiality. Each of the Paying Agent and each Lender
agrees to keep confidential all non-public information provided to it by
any Loan Party pursuant to this Agreement that is designated by such Loan
Party as confidential; provided that nothing herein shall prevent the
Paying Agent or any Lender from disclosing any such information (a) to the
Paying Agent, any other Lender or any Lender Affiliate, (b) subject to an
agreement to comply with the provisions of this Section, to any actual or
prospective Transferee or any direct or indirect counterparty to any Hedge
Agreement (or any professional advisor to such counterparty), (c) to its
employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its affiliates, (d) upon the request or demand
of any Governmental Authority having jurisdiction over the Administrative
Agent or Lender, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection
with any litigation or similar proceeding, (g) that has been publicly
disclosed other than in breach of this Section 10.15, (h) to the National
Association of Insurance Commissioners or any similar organization or any
nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued
with respect to such Lender, or (i) in connection with the exercise of any
remedy hereunder or under any other Loan Document.
SECTION 10.16. WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE PAYING
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
[Rest of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
FLAVORS HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President-Finance
PNEUMO ABEX CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President-Finance,
Treasurer and Secretary
THE CHASE MANHATTAN BANK, as Paying
Agent and as a Lender By:
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
BNP PARIBAS, as Documentation Agent
and as a Lender By:
By: /s/ Xxxx X. XxXxxxxxx, III
---------------------------
Name: Xxxx X. XxXxxxxxx, III
Title:
By: /s/ Ro Toyoshima
---------------------------
Name: Ro Toyoshima
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ORIX FINANCIAL SERVICES INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager Operations &
Compliance
XXX XXXXXX SENIOR INCOME TRUST
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager Operations &
Compliance
XXX XXXXXX SENIOR FLOATING RATE FUND
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager Operations &
Compliance
Annex A
-------
PRICING GRID FOR REVOLVING LOANS, TERM LOANS AND COMMITMENT FEES
----------------------------------------------------------
Consolidated Applicable Margin for Applicable
Leverage Ratio Eurodollar Loans Margin for
ABR Loans
----------------------------------------------------------
Greater than 3.50% 2.50%
2.0 to 1.0
----------------------------------------------------------
Greater than 3.25% 2.25%
1.50 to 1.0
but less than
or equal to
2.0 to 1.0
----------------------------------------------------------
Less than or 3.00% 2.00%
equal to 1.50
to 1.0
----------------------------------------------------------
Changes in the Applicable Margin resulting from changes in the
Consolidated Leverage Ratio shall become effective on the date (the "Adjustment
Date") that is three Business Days after the date on which financial statements
are delivered to the Lenders pursuant to Section 6.1 and shall remain in effect
until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified in Section 6.1, then, until the date that is three Business Days after
the date on which such financial statements are delivered, the highest rate set
forth in each column of the Pricing Grid shall apply. In addition, at all times
while an Event of Default shall have occurred and be continuing, the highest
rate set forth in each column of the Pricing Grid shall apply. Each
determination of the Consolidated Leverage Ratio pursuant to the Pricing Grid
shall be made in a manner consistent with the determination thereof pursuant to
Section 7.1.
Schedule 1.1B
to the Amended and
Restated Credit Agreement
MORTGAGED PROPERTY
------------------------------------------------------------------------------------------------------------
Owned or
Name of Grantor Address/City/State/Zip Code County Leased Value of Property
------------------------------------------------------------------------------------------------------------
Pneumo Abex Corporation Third Street and Jefferson Avenue Camden Owned $2,410,000
Xxxxxx, Xxx Xxxxxx 00000
------------------------------------------------------------------------------------------------------------
Pneumo Abex Corporation 0000 Xxxxxxxxxxxx Xxxxxx Independent Owned $2,300,000
Xxxxxxxx, Xxxxxxxx 00000 City
------------------------------------------------------------------------------------------------------------
Schedule 4.4
to the Amended and
Restated Credit Agreement
CONSENTS, AUTHORIZATIONS, FILINGS, AND NOTICES
1. Filing pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, made on March 19, 2001.
Schedule 4.15
to the Amended and
Restated Credit Agreement
SUBSIDIARIES
-------------------------------------------------------------------------------
Name Jurisdiction of Class of Capital
Incorporation
-------------------------------------------------------------------------------
Flavors Holdings Inc.
-------------------------------------------------------------------------------
Pneumo Abex Corporation Delaware Common Stock
-------------------------------------------------------------------------------
Pneumo Abex Corporation
-------------------------------------------------------------------------------
EVD Holdings Inc. Delaware Common Stock
-------------------------------------------------------------------------------
Concord Pacific Corporation Maine Common Stock
-------------------------------------------------------------------------------
Mafco Weihai Green Industries of China
Science & Technology
-------------------------------------------------------------------------------
Xxxxxx-Xxxxxx Export Company Ltd. Iran
(Inactive)
-------------------------------------------------------------------------------
Rishmac Produce & Export Co. Iran
-------------------------------------------------------------------------------
Mafco Establishment Liechtenstein
-------------------------------------------------------------------------------
PVI Acquisition Corp.
-------------------------------------------------------------------------------
None. N/A N/A
-------------------------------------------------------------------------------
EVD Holdings Inc.
-------------------------------------------------------------------------------
EVD Holdings S.A. France Equity Interests
-------------------------------------------------------------------------------
Concord Pacific Corporation
-------------------------------------------------------------------------------
Xianyang Concord Natural China Equity Interests
Products Inc.
-------------------------------------------------------------------------------
IMMATERIAL SUBSIDIARIES
Name Jurisdiction of Class of Capital
Incorporation
-------------------------------------------------------------------------------
Mafco Weihai Green Industries of China
Science & Technology
-------------------------------------------------------------------------------
Xxxxxx-Xxxxxx Export Company Ltd. Iran
(Inactive)
-------------------------------------------------------------------------------
Rishmac Produce & Export Co. Iran
-------------------------------------------------------------------------------
Mafco Establishment Liechtenstein
-------------------------------------------------------------------------------
Schedule 4.19(a)
to the Amended and
Restated Credit Agreement
UCC FILING JURISDICTIONS
----------------------------------------------------------------------------------------------------------
Grantor County Filing Office State Filing Office
----------------------------------------------------------------------------------------------------------
Pneumo Abex Corporation Alamance County, North Carolina Delaware Secretary of State
Delaware County, Pennsylvania New Jersey Secretary of State
Clerk's Office of the Circuit Court North Carolina Secretary of State
of the City Richmond, Virginia
Pennsylvania Secretary of State
State Corporation Commission -
Virginia
----------------------------------------------------------------------------------------------------------
MAFCO Worldwide Corporation Alamance County, North Carolina Delaware Secretary of State
Delaware County, Pennsylvania New Jersey Secretary of State
Clerk's Office of the Circuit Court North Carolina Secretary of State
of the City Richmond, Virginia
Pennsylvania Secretary of State
State Corporation Commission -
Virginia
----------------------------------------------------------------------------------------------------------
MAFCO Natural Products Alamance County, North Carolina Delaware Secretary of State
Delaware County, Pennsylvania New Jersey Secretary of State
Clerk's Office of the Circuit Court North Carolina Secretary of State
of the City Richmond, Virginia
Pennsylvania Secretary of State
State Corporation Commission -
Virginia
----------------------------------------------------------------------------------------------------------
PVI Acquisition Corp. None. Delaware Secretary of State
----------------------------------------------------------------------------------------------------------
Concord Pacific Corporation None. Maine Secretary of State
New Jersey Secretary of State
----------------------------------------------------------------------------------------------------------
EVD Holdings Inc. New York County, New York Delaware Secretary of State
New York Secretary of State
----------------------------------------------------------------------------------------------------------
Flavors Holding Inc. None. Delaware Secretary of State
New Jersey Secretary of State
----------------------------------------------------------------------------------------------------------
Schedule 4.19(b)
to the Amended and
Restated Credit Agreement
MORTGAGE FILING JURISDICTIONS
-------------------------------------------------------------------------------
Property Recording Office
-------------------------------------------------------------------------------
Pneumo Abex Corporation Camden County, NJ Recorder
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
-------------------------------------------------------------------------------
Pneumo Abex Corporation Clerk's Office, Circuit Court of the
0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
-------------------------------------------------------------------------------
Schedule 7.2(l)
to the Amended and
Restated Credit Agreement
EXISTING LIENS
None.
Schedule 7.9
to the Amended and
Restated Credit Agreement
TRANSACTION AGREEMENTS
1. Transfer Agreement, dated as of June 15, 1995, among M & F Worldwide
Corporation (f/k/a Power Control Technologies Inc.), MCG Intermediate
Holdings Inc, Pneumo Abex Corporation and PCT International Holdings
Inc.
2. Tax Allocation Agreement, dated as of November 14, 1996, by and among
M & F Worldwide Corporation (f/k/a Power Control Technologies Inc.)
and Pneumo Abex Corporation and its Subsidiaries (as defined therein)
Schedule 7.10(c)
to the Amended and
Restated Credit Agreement
EXISTING INDEBTEDNESS
None.
