[EXECUTION COUNTERPART]
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COMMONWEALTH ALUMINUM CORPORATION,
COMMONWEALTH ALUMINUM LEWISPORT, INC.,
CASTECH ALUMINUM GROUP INC.
and
BARMET ALUMINUM CORPORATION
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$425,000,000
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CREDIT AGREEMENT
Dated as of September 20, 1996
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NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
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Section 1. Definitions and Accounting Matters. . . . . . . . . . . . . . . . 2
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms and Determinations . . . . . . . . . . . . . . . 50
1.03 Types of Loans. . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 2. Commitments, Loans, Notes and Prepayments . . . . . . . . . . . . 51
2.01 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
2.02 Borrowings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2.03 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 56
2.04 Changes of Commitments. . . . . . . . . . . . . . . . . . . . . . 62
2.05 Certain Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
2.06 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . 64
2.07 Several Obligations; Remedies Independent . . . . . . . . . . . . 64
2.08 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
2.09 Optional Prepayments and Conversions or
Continuations of Loans. . . . . . . . . . . . . . . . . . . . . . 66
2.10 Mandatory Prepayments and Reductions of
Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
2.11 Reserved Commitments, Etc.. . . . . . . . . . . . . . . . . . . . 73
Section 3. Payments of Principal and Interest. . . . . . . . . . . . . . . . 74
3.01 Repayment of Loans. . . . . . . . . . . . . . . . . . . . . . . . 74
3.02 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 4. Payments; Pro Rata Treatment; Computations; Etc.. . . . . . . . . 78
4.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
4.02 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . 79
4.03 Computations. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.04 Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.05 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.06 Non-Receipt of Funds by the Administrative Agent. . . . . . . . . 81
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . 83
Section 5. Yield Protection, Etc.. . . . . . . . . . . . . . . . . . . . . . 84
5.01 Additional Costs. . . . . . . . . . . . . . . . . . . . . . . . . 84
5.02 Limitation on Types of Loans. . . . . . . . . . . . . . . . . . . 86
5.03 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
5.04 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . 87
5.05 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 88
5.06 Additional Costs in Respect of Letters of Credit. . . . . . . . . 89
5.07 U.S. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
5.08 Replacement of Lenders. . . . . . . . . . . . . . . . . . . . . . 91
(i)
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Section 6. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
6.01 The Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 92
6.02 Obligations Unconditional.. . . . . . . . . . . . . . . . . . . . 94
6.03 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . 96
6.04 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
6.05 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
6.06 Continuing Guarantee. . . . . . . . . . . . . . . . . . . . . . . 97
6.07 Rights of Contribution. . . . . . . . . . . . . . . . . . . . . . 97
6.08 Limitation on Guarantee Obligations.. . . . . . . . . . . . . . . 98
Section 7. Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . 98
7.01 Initial Tender Offer Term Loan. . . . . . . . . . . . . . . . . . 98
7.02 Initial Revolving Credit Loans. . . . . . . . . . . . . . . . . . 106
7.03 Initial Post-Merger Term Loans. . . . . . . . . . . . . . . . . . 106
7.04 Initial Post-Merger Revolving Credit Loans. . . . . . . . . . . . 110
7.05 Initial and Subsequent Extensions of Credit . . . . . . . . . . . 111
7.06 Certain Determinations. . . . . . . . . . . . . . . . . . . . . . 111
Section 8. Representations and Warranties. . . . . . . . . . . . . . . . . . 112
8.01 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 112
8.02 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . 112
8.03 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
8.04 No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
8.05 Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
8.06 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
8.07 Use of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 115
8.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
8.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
8.10 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 116
8.11 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 116
8.12 Material Agreements and Liens . . . . . . . . . . . . . . . . . . 116
8.13 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 117
8.14 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . 120
8.15 Subsidiaries, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 122
8.16 Title to Assets . . . . . . . . . . . . . . . . . . . . . . . . . 123
8.17 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . 123
8.18 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . 124
8.19 Security Documents. . . . . . . . . . . . . . . . . . . . . . . . 124
Section 9. Covenants of the Obligors . . . . . . . . . . . . . . . . . . . . 124
9.01 Financial Statements, Etc.. . . . . . . . . . . . . . . . . . . . 124
9.02 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
9.03 Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 129
9.04 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
9.05 Prohibition of Fundamental Changes. . . . . . . . . . . . . . . . 133
9.06 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . 135
9.07 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 137
9.08 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
9.09 Dividend Payments . . . . . . . . . . . . . . . . . . . . . . . . 139
9.10 Certain Financial Covenants . . . . . . . . . . . . . . . . . . . 140
9.11 Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . . 147
(ii)
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9.12 Interest Rate Protection Agreements . . . . . . . . . . . . . . . 147
9.13 Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . 147
9.14 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . 148
9.15 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . 148
9.16 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 148
9.17 Certain Obligations Respecting Subsidiaries . . . . . . . . . . . 149
9.18 Certain Post-Closing Real Estate Matters. . . . . . . . . . . . . 150
9.19 Modifications of Certain Documents. . . . . . . . . . . . . . . . 151
9.20 Consummation of the Merger. . . . . . . . . . . . . . . . . . . . 151
9.21 Commodity Hedging Activities. . . . . . . . . . . . . . . . . . . 151
9.22 After-Acquired Real Estate. . . . . . . . . . . . . . . . . . . . 152
9.23 Activities of the Parent and New CALC.. . . . . . . . . . . . . . 152
Section 10. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 153
Section 11. The Administrative Agent . . . . . . . . . . . . . . . . . . . . 157
11.01 Appointment, Powers and Immunities . . . . . . . . . . . . . . . 157
11.02 Reliance by Administrative Agent . . . . . . . . . . . . . . . . 158
11.03 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
11.04 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . 159
11.05 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 159
11.06 Non-Reliance on Administrative Agent and Other
Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
11.07 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . . . 161
11.08 Resignation or Removal of Administrative Agent . . . . . . . . . 161
11.09 Consents under Other Credit Documents. . . . . . . . . . . . . . 161
11.10 Collateral Sub-Agents. . . . . . . . . . . . . . . . . . . . . . 162
Section 12. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . 162
12.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
12.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
12.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 163
12.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 165
12.05 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 166
12.06 Assignments and Participations . . . . . . . . . . . . . . . . . 166
12.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
12.08 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
12.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 169
12.10 Governing Law; Submission to Jurisdiction. . . . . . . . . . . . 169
12.11 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . 170
12.12 Treatment of Certain Information;
Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 170
(iii)
SCHEDULES
SCHEDULE I - Lenders and Commitments
SCHEDULE II - Litigation
SCHEDULE III - Conflicts
SCHEDULE IV - Governmental Approvals, Etc.
SCHEDULE V - Material Agreement and Liens (Parent)
SCHEDULE VI - Material Agreement and Liens (CasTech)
SCHEDULE VII - Certain Environmental Matters
SCHEDULE VIII - Capitalization and Equity Rights relating to the
Parent
SCHEDULE IX - Capitalization and Equity Rights relating to CALI
SCHEDULE X - Capitalization and Equity Rights relating to
New CALC
SCHEDULE XI - Capitalization and Equity Rights relating to
CasTech
SCHEDULE XII - Capitalization and Equity Rights relating to
Barmet
SCHEDULE XIII - Subsidiaries and Investments
SCHEDULE XIV - Title to Properties
SCHEDULE XV - Real Estate (Parent and Subsidiaries)
SCHEDULE XVI - Real Estate (CasTech and Subsidiaries)
EXHIBITS
EXHIBIT A-1 - Form of Tender Offer Tranche A Term Loan Note
EXHIBIT A-2 - Form of Tender Offer Tranche B Term Loan Note
EXHIBIT A-3 - Form of Tender Offer CALI Revolving Credit Note
EXHIBIT A-4 - Form of Tender Offer CasTech Revolving Credit Note
EXHIBIT A-5 - Form of Post-Merger Tranche A Term Loan Note
EXHIBIT A-6 - Form of Post-Merger Tranche B Term Loan Note
EXHIBIT A-7 - Form of Post-Merger Revolving Credit Note
EXHIBIT A-8 - Form of Swingline Note (Tender Offer)
EXHIBIT A-9 - Form of Swingline Note (Post-Merger)
EXHIBIT B - Form of Borrowing Base Certificate
EXHIBIT C - Form of Commonwealth Pledge and Security Agreement
EXHIBIT D - Form of CasTech Pledge and Security Agreement
EXHIBIT E - Form of New CALC Note
EXHIBIT F-1 - Form of Mortgage
EXHIBIT F-2 - Form of Deed of Trust
EXHIBIT G - Form of Opinion of Counsel to the Obligors
EXHIBIT H - Form of Opinion of Local Counsel
EXHIBIT I - Form of Opinion of Special New York Counsel to
NatWest
EXHIBIT J - Form of Assumption and Confirmation Agreement
EXHIBIT K - Form of Confidentiality Agreement
(iv)
CREDIT AGREEMENT (this "AGREEMENT") dated as of September 20, 1996,
between:
(1) COMMONWEALTH ALUMINUM CORPORATION, a corporation duly organized
and validly existing under the laws of the State of Delaware (the
"PARENT");
(2) COMMONWEALTH ALUMINUM LEWISPORT, INC., a corporation duly
organized and validly existing under the laws of the State of Delaware
("CALI");
(3) CASTECH ALUMINUM GROUP INC., a corporation duly organized and
validly existing under the laws of the State of Delaware ("CASTECH");
(4) BARMET ALUMINUM CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Ohio ("BARMET");
(5) each of the Subsidiaries of the Parent identified under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereto and each
Subsidiary of the Parent that becomes a "Subsidiary Guarantor" after the
date hereof pursuant to Section 9.17(a) hereof (each, a "SUBSIDIARY
GUARANTOR" and, collectively, the "SUBSIDIARY GUARANTORS");
(6) each of the lenders that is a signatory hereto identified under
the caption "LENDERS" on the signature pages hereto and each lender that
becomes a "Lender" after the date hereof pursuant to Section 12.06(b)
hereof (individually, a "LENDER" and, collectively, the "LENDERS"); and
(7) NATIONAL WESTMINSTER BANK PLC, as administrative agent for the
Lenders (in such capacity, together with its successors in such capacity,
the "ADMINISTRATIVE AGENT").
PRELIMINARY STATEMENTS:
Terms used in these Preliminary Statements and not otherwise defined
shall have the meanings assigned to such terms in Section 1.01 of this
Agreement.
(A) Each of the Obligors has requested the Lenders to make loans to
the Borrowers in an aggregate principal amount not exceeding $425,000,000 at any
one time outstanding:
(1) to provide financing for the acquisition by the Parent (either
directly or through New CALC) of all of the CasTech Shares and for certain
related purposes;
CREDIT AGREEMENT
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(2) to refinance certain Indebtedness of CALI, CasTech and their
respective Subsidiaries outstanding on the Initial Borrowing Date; and
(3) to provide working capital requirements and for other general
corporate purposes of CALI, CasTech and their respective Subsidiaries.
(B) Following the purchase of CasTech Shares pursuant to the Tender
Offer, it is contemplated that New CALC will merge with and into CasTech with
the result that CasTech will be the surviving corporation (the "MERGER"), such
merger to be in accordance with the terms of the Merger Agreement. From and
after the Merger, all references herein to New CALC shall be deemed to be
references to such surviving corporation.
(C) In order to refinance the loans described in Preliminary
Statement (A), to finance the payment of certain amounts owing in connection
with the Merger and to provide working capital requirements and for other
general corporate purposes of CALI, CasTech and their respective Subsidiaries,
the Lenders are prepared to make available the credit facilities provided for
herein.
(D) Each of the Obligors expects to derive benefit, directly or
indirectly, from the credit so extended, both in its separate capacity and as a
member of the Commonwealth Group, since the successful operation of each of such
Obligors will be dependent on the continued successful performance of the
functions of such Commonwealth Group as a whole.
Accordingly, the parties hereto agree as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the correlative
meanings when used in the plural and VICE VERSA):
"ACQUISITION" shall mean (a) the purchase by the Parent (either
directly or indirectly) of more than 50% of the CasTech Shares (at a price per
share not to exceed $20.50) for cash pursuant to the Tender Offer Documents,
(b) the Merger and (c) the purchase of options in respect of the CasTech Shares
as contemplated by the Merger Agreement.
CREDIT AGREEMENT
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"ACQUISITION COSTS" shall mean all fees and expenses incurred by the
Obligors in connection with the Acquisition and related transactions.
"ACQUISITION DOCUMENTS" shall mean the Tender Offer Documents, the
Additional Tender Offer Documents, the Merger Agreement, the certificate of
merger with respect to the Merger, any Information Statement and any other
document or information sent by the Parent or CasTech to the stockholders of
CasTech or filed with the Commission in connection with the Acquisition.
"ADDITIONAL TENDER OFFER DOCUMENTS" shall mean all amendments and
exhibits to, and documents related to, the Tender Offer Documents filed with the
Commission, or distributed to the stockholders of CasTech, in each case
delivered to the Administrative Agent and Lenders on or after the date of this
Agreement.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the recital of parties to this Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an administrative
questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" shall mean any Person directly or indirectly controlling,
directly or indirectly controlled by or under direct or indirect common control
with the Parent. As used in this definition, "CONTROL" (including, with its
correlative meanings, "CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH") shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), PROVIDED that, in any event, any Person that owns directly or
indirectly securities having 10% or more of the voting power for the election of
directors or other governing body of a corporation or 10% or more of the
partnership or other ownership interests of any other Person (other than as a
limited partner of such other Person) will be deemed to control such corporation
or other Person. Notwithstanding the foregoing, (a) no individual shall be an
Affiliate solely by reason of his or her being a director, officer or employee
of the Parent or any of its Subsidiaries and (b) none of the Wholly Owned
Subsidiaries of the Parent shall be Affiliates.
"ALUMINUM BUSINESS" shall mean the business of developing,
manufacturing, producing, marketing, transporting and
CREDIT AGREEMENT
-4-
selling aluminum, aluminum products and electrical wiring products
(including, without limitation, flexible conduit and pre-wired armored cable)
and any other business incidental thereto.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the lending office of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire of
such Lender or such other lending office of such Lender (or of an affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Parent as the office by which its Loans of such Type are to be
made and maintained.
"APPLICABLE LETTER OF CREDIT PERCENTAGE" shall mean, at any time:
(a) on or prior to the Merger Date, (i) for any day during which any
Tender Offer Tranche B Term Loans are outstanding, 2.50% and (ii) for any
other day, 2.25%; and
(b) thereafter, the Applicable Margin in effect at such time with
respect to Tranche A Term Loans that are Eurodollar Loans.
"APPLICABLE MARGIN" shall mean, at any time:
(a) with respect to the Tender Offer Facilities:
(i) for Tender Offer Tranche A Term Loans and Tender Offer Revolving
Credit Loans (x) for any day during which any Tender Offer Tranche B Term
Loans are outstanding, 1.25% and (y) for any other day, 1.00%; and
(ii) for Tender Offer Tranche B Term Loans, 1.75%; and
(b) with respect to the Post-Merger Facilities:
(i) for each Type of Post-Merger Tranche A Term Loans and Post-Merger
Revolving Credit Loans set forth below, the percentage set forth below such
Type (under Column A for any day during which any Post-Merger Tranche B
Term Loans are outstanding and under Column B for any other day) opposite
the Applicable Pricing Level in effect at such time:
CREDIT AGREEMENT
-5-
Applicable BASE RATE LOANS EURODOLLAR LOANS
Pricing Level Column A Column B Column A Column B
------------- -------- -------- -------- --------
1 0.00% 0.00% 0.50% 0.50%
2 0.00% 0.00% 0.75% 0.75%
3 0.00% 0.00% 1.25% 1.00%
4 0.25% 0.00% 1.50% 1.25%
5 0.50% 0.25% 1.75% 1.50%
6 0.75% 0.50% 2.00% 1.75%
7 1.00% 0.75% 2.25% 2.00%
8 1.25% 1.00% 2.50% 2.25%
(ii) for Post-Merger Tranche B Term Loans that are Base Rate Loans,
1.75%, and for Post-Merger Tranche B Term Loans that are Eurodollar Loans,
3.00%.
The Applicable Margin for Swingline Loans at any time shall be the Applicable
Margin in effect for Revolving Credit Loans that are Base Rate Loans at such
time.
"APPLICABLE NON-UTILIZATION FEE PERCENTAGE" shall mean, at any time:
(a) with respect to the Tender Offer Facilities, 0.50%; and
(b) with respect to the Post-Merger Facilities, the percentage set
forth in the schedule below opposite the Applicable Pricing Level in effect
at such time:
Applicable Applicable Non-Utilization
Pricing Level Fee Percentage
------------- --------------------------
1 0.175%
2 0.200%
3 0.250%
4 0.250%
5 0.375%
CREDIT AGREEMENT
-6-
Applicable Applicable Non-Utilization
Pricing Level Fee Percentage
------------- --------------------------
6 0.375%
7 0.375%
8 0.500%
The "APPLICABLE PRICING LEVEL" in effect at any time shall be deemed
to be the level specified in the schedule below opposite the Senior Indebtedness
to EBITDA Ratio in effect as at the close of business on the Merger Date
(PROVIDED that if the Senior Indebtedness to EBITDA Ratio as at the last day of
any fiscal quarter of the Parent ending on or after September 30, 1996 shall
fall within any of the ranges set forth in the schedule below then, subject to
the delivery to the Administrative Agent of a certificate of a Responsible
Officer of the Parent demonstrating such fact prior to the end of the next
succeeding fiscal quarter, the Applicable Pricing Level shall be changed to the
Applicable Pricing Level set forth opposite such range in such schedule during
the period commencing on the Quarterly Date on or immediately following the date
of receipt of such certificate to but not including the next succeeding
Quarterly Date thereafter):
Applicable
Pricing Level Senior Indebtedness to EBITDA Ratio
------------- -----------------------------------
1 Less than 1.00 to 1.00
2 Greater than or equal to 1.00 to 1.00
and less than 2.00 to 1.00
3 Greater than or equal to 2.00 to 1.00
and less than 2.50 to 1.00
4 Greater than or equal to 2.50 to 1.00
and less than 3.00 to 1.00
CREDIT AGREEMENT
-7-
Applicable
Pricing Level Senior Indebtedness to EBITDA Ratio
------------- -----------------------------------
5 Greater than or equal to 3.00 to 1.00
and less than 3.50 to 1.00
6 Greater than or equal to 3.50 to 1.00
and less than 4.00 to 1.00
7 Greater than or equal to 4.00 to 1.00
and less than 4.25 to 1.00
8 Greater than or equal to 4.25 to 1.00
"APPROVED ACCOUNT DEBTOR" shall mean each of Xxxxxxxx Aluminum
Corporation and Xxxxxx Corporation (formerly known as Alcoa Building Products)
so long as the senior unsecured, non-credit enhanced debt securities of Xxxxxxxx
Aluminum Corporation or Xxxxxx Corporation, as the case may be, are rated Baa3
or better by Moody's and BBB- or better by Standard & Poor's.
"ASSUMPTION AND CONFIRMATION AGREEMENT" shall mean the Assumption and
Confirmation Agreement, in substantially the form of Exhibit J hereto, dated as
of the Merger Date and executed and delivered by CasTech and Barmet, pursuant to
which, INTER ALIA, CasTech will expressly assume all of the obligations of New
CALC hereunder and under the other Credit Documents and CasTech and Barmet will
confirm all of their respective obligations hereunder and under the other Credit
Documents.
"AVAILABLE COMMITMENTS" shall have the meaning assigned to such term
in Section 2.11 hereof.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BARMET" shall have the meaning assigned to such term in the recital
of parties to this Agreement.
CREDIT AGREEMENT
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"BASE RATE" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"BASE RATE LOANS" shall mean Loans that bear interest at rates based
upon the Base Rate.
"BASIC DOCUMENTS" shall mean, collectively, the Credit Documents and
the Acquisition Documents.
"BASLE ACCORD" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"BORROWER" shall mean each Term Loan Borrower and each Revolving
Credit Borrower; PROVIDED that when reference is made in this Agreement or in
any other Credit Document to the "relevant" Borrower in connection with any
Facility, such reference shall be deemed to refer:
(a) in the case of a Tender Offer Term Loan Facility, to CALI;
(b) in the case of the Tender Offer CALI Revolving Credit Facility,
to CALI;
(c) in the case of the Tender Offer CasTech Revolving Credit
Facility, to CasTech;
(d) in the case of a Post-Merger Term Loan Facility, to CasTech; and
(e) in the case of the Post-Merger Revolving Credit Facility, to each
of CALI, CasTech and Barmet.
"BORROWING BASE" shall mean, as at any date, the sum of:
(a) 85% of the aggregate amount of Eligible Receivables of the
Borrowing Base Group at said date PLUS
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(b) 50% of the aggregate value of Eligible Inventory (other than
Eligible Product-in-Process and Special Inventory) of the Borrowing Base
Group at said date PLUS
(c) 35% of the aggregate value of Eligible Product-in-Process of the
Borrowing Base Group at said date PLUS
(d) 20% of the aggregate value of Special Inventory MINUS
(e) an amount equal to two times the average aggregate monthly
Processing Fees payable by Members of the Borrowing Base Group during the
period of two fiscal quarters of the Parent most recently ended on or
before said date PLUS
(f) the aggregate amount of cover for Letter of Credit Liabilities
held by the Administrative Agent in the Collateral Accounts as contemplated
in Section 2.10(k) hereof;
PROVIDED that not more than 50% of the Borrowing Base shall be composed of
Eligible Inventory, Eligible Product-in-Process and Special Inventory (x) at any
time prior to the General Trigger Date or (y) at any time thereafter, when less
than $75,000,000 is outstanding under a Permitted Receivables Financing. The
"VALUE" of Eligible Inventory and Special Inventory shall be determined at the
lower of cost or market in accordance with GAAP, except that:
(i) initially, cost shall be determined for each Member of the
Borrowing Base Group in the manner described in the audited financial
statements referred to in Section 8.02 hereof relating to such Member; and
(ii) from and after receipt by the Administrative Agent of a notice
from the Parent to such effect, cost shall be determined on a
last-in-first-out basis.
"BORROWING BASE CERTIFICATE" shall mean a certificate of a Responsible
Officer of the Parent, substantially in the form of Exhibit B hereto and
appropriately completed.
"BORROWING BASE GROUP" shall mean: (a) prior to the Merger Date,
collectively, the Parent, CALI and the Subsidiary Guarantors; and (b) from and
after the Merger Date, collectively, the Parent, CALI, CasTech, Barmet and the
Subsidiary Guarantors. A "MEMBER" of the Borrowing Base Group shall mean,
individually, the Parent and each such Subsidiary.
CREDIT AGREEMENT
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"BUSINESS DAY" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by a Borrower with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"CALCULATION PERIOD" shall mean, at any date, the period of four
consecutive fiscal quarters of the Parent ending on or most recently ended prior
to such date (or, at any date on or prior to September 30, 1997, the period
consisting of the fiscal quarters of the Parent that have ended after October 1,
1996).
"CALI" shall have the meaning assigned to such term in the recital of
parties to this Agreement.
"CALI GUARANTEED OBLIGATIONS" shall have the meaning assigned to such
term in Section 6.01(a) hereof.
"CALI GUARANTORS" shall mean the Parent, the Subsidiary Guarantors
and, from and after the Merger Date, CasTech and Barmet.
"CAPITAL EXPENDITURES" shall mean, for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations paid or payable during such period) made by the Parent or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"CAPITAL STOCK" shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or other ownership
interests,
CREDIT AGREEMENT
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including, without limitation, all common stock and all preferred stock.
"CASTECH" shall have the meaning assigned to such term in the recital
of parties to this Agreement.
"CASTECH COLLATERAL ACCOUNT" shall have the meaning assigned to such
term in Section 4.01 of the CasTech Pledge and Security Agreement.
"CASTECH GUARANTEED OBLIGATIONS" shall have the meaning assigned to
such term in Section 6.01(b) hereof.
"CASTECH GUARANTORS" shall mean the Parent, CALI, Barmet and the
Subsidiary Guarantors.
"CASTECH PLEDGE AND SECURITY AGREEMENT" shall mean a Pledge and
Security Agreement substantially in the form of Exhibit D hereto between
CasTech, Barmet and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"CASTECH SHARE" shall mean an outstanding share of common stock, par
value $0.01 per share, of CasTech.
"CASUALTY EVENT" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"CHANGE OF CONTROL" shall mean:
(a) that any "person" or "group" (as such terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable,
except that for purposes of this paragraph (b) such person or group shall
be deemed to have "beneficial ownership" of all shares that such person or
group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), is or becomes the
"beneficial owner" (as such term is used in Rule 13d-3 promulgated pursuant
to the Exchange Act), directly or indirectly, of more than 25% of the
aggregate voting power of all Voting Stock of the Parent; or
(b) that individuals who on the date hereof constituted the Board of
Directors of the Parent (together with any new directors whose election by
such Board or whose
CREDIT AGREEMENT
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nomination for election by the stockholders of the Parent was approved
by a majority of the directors then still in office who were either
directors on the date hereof or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the Board of Directors of the Parent; or
(c) that the Parent shall be required pursuant to the provisions of
the Senior Subordinated Debt Documents (or any other agreement or
instrument relating to or providing for any other Subordinated
Indebtedness) to redeem or repurchase, or make an offer to redeem or
repurchase, all or any portion of the Senior Subordinated Debt (or such
Subordinated Indebtedness, as the case may be) as a result of a change of
control (however defined).
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL ACCOUNTS" shall mean, collectively, the Commonwealth
Collateral Account and the CasTech Collateral Account.
"COMMISSION" shall mean the Securities and Exchange Commission, or any
regulatory body that succeeds to the functions thereof.
"COMMITMENTS" shall mean the Tender Offer Tranche A Term Loan
Commitments, the Tender Offer Tranche B Term Loan Commitments, the Tender Offer
CALI Revolving Credit Commitments, the Tender Offer CasTech Revolving Credit
Commitments, the Post-Merger Tranche A Term Loan Commitments, the Post-Merger
Tranche B Term Loan Commitments and the Post-Merger Revolving Credit
Commitments. Where the context requires, the term "Commitments" shall include
reference to the Swingline Commitment.
"COMMITMENT TERMINATION DATE" shall mean:
(a) in the case of a Tender Offer Term Loan Facility or a Tender
Offer Revolving Credit Facility, the Tender Offer Loan Commitment Termination
Date; and
(b) in the case of the Post-Merger Revolving Credit Facility, the
Post-Merger Revolving Credit Commitment Termination Date.
"COMMODITY HEDGE AGREEMENTS" shall have the meaning assigned to such
term in Section 9.21 hereof.
CREDIT AGREEMENT
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"COMMONWEALTH COLLATERAL ACCOUNT" shall have the meaning assigned to
such term in Section 4.01 of the Commonwealth Pledge and Security Agreement.
"COMMONWEALTH GROUP" shall mean the Parent and each of its
Subsidiaries, and a "Member" of the Commonwealth Group shall mean, individually,
the Parent and each of its Subsidiaries.
"COMMONWEALTH PLEDGE AND SECURITY AGREEMENT" shall mean a Pledge and
Security Agreement substantially in the form of Exhibit C hereto between the
Parent, certain of the other Obligors and the Administrative Agent, as the same
shall be modified and supplemented and in effect from time to time.
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.09 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement, the
Notes, the Letter of Credit Documents, the New CALC Note Documents and the
Security Documents.
"DEBT ISSUANCE" shall mean any incurrence or other issuance of
Indebtedness by the Parent or any of its Subsidiaries after the date hereof,
other than any Specified Debt Issuance.
"DEFAULT" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"DELIVERY DATE" shall mean the date following the end of a fiscal
quarter of the Parent on which the Lenders receive the Parent's financial
statements pursuant to Section 9.01(a) hereof for such fiscal quarter.
"DISPOSITION" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Parent or any of its Subsidiaries to any other Person excluding (a) any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the
CREDIT AGREEMENT
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ordinary course of business and on ordinary business terms and (b)
Receivables Sales.
"DIVIDEND PAYMENT" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Parent or any of its Subsidiaries or of any warrants,
options or other rights to acquire the same (or to make any payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to the fair market or equity value of the Parent or any of its
Subsidiaries), but excluding dividends payable solely in shares of Capital Stock
of the Parent (or in options, warrants and other rights to acquire such shares
of Capital Stock).
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, for any period, the sum, for the Parent and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) net income for such period PLUS
(b) the amount of Total Interest Expense for such period PLUS (c) income and
other taxes paid during such period PLUS (d) depreciation and amortization for
such period PLUS (e) extraordinary losses for such period MINUS (f)
extraordinary gains for such period, MINUS (g) interest received during such
period, PLUS (h) with respect to periods ending on or prior to the first
anniversary of the Merger Date, Extraordinary Rationalization Costs paid during
such period up to but not exceeding $15,000,000 in the aggregate.
Notwithstanding the foregoing, (i) EBITDA for the three-month period ended
December 31, 1995 shall be deemed to be $18,900,000, (ii) EBITDA for the three-
month period ended March 31, 1996 shall be deemed to be $16,200,000, (iii)
EBITDA for the three-month period ended June 30, 1996 shall be deemed to be
$17,400,000 and (iv) EBITDA for the three-month period ended September 30, 1996
shall be deemed to be $20,000,000.
"ELIGIBLE INVENTORY" of the Borrowing Base Group shall mean, as at any
date, the sum of the following (determined without duplication):
(a) all Inventory (i) that is owned by (and in the possession or
under the control of) any Member of the Borrowing Base Group as at such
date, (ii) that is located in a jurisdiction in the United States of
America, (iii) as
CREDIT AGREEMENT
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to which appropriate Uniform Commercial Code financing
statements have been filed naming the relevant Member of the Borrowing Base
Group as "debtor" and the Administrative Agent as "secured party",
(iv) that is in good condition, (v) that meets all standards imposed by any
governmental agency or department or division thereof having regulatory
authority over such Inventory, its use or sale and (vi) that is either
currently usable or currently saleable in the normal course of the
Borrowing Base Group's business without any notice to, or consent of, any
governmental agency or department or division thereof (excluding however,
except to the extent that the Majority Lenders otherwise agree with respect
to any specific customer or Processor, any such Inventory that has been
shipped to a customer of the Borrowing Base Group, including Processors,
even if on a consignment or "sale or return" basis), PLUS
(b) all Inventory being processed by Processors on behalf of a Member
of the Borrowing Base Group as at such date, but only to the extent that
the relevant Member of the Borrowing Base Group shall have filed an
appropriate Uniform Commercial Code financing statement in the respective
jurisdiction in which such Inventory is located naming the respective
Processor as "debtor", such Member as "secured party" and the
Administrative Agent as "assignee" and delivered to the Administrative
Agent an opinion of counsel satisfactory to the Administrative Agent to the
effect that (i) to the extent such arrangement constitutes a consignment or
security interest under applicable law, the relevant Member of the
Borrowing Base Group has a valid perfected first priority security interest
in such Inventory, (ii) by virtue of the Pledge and Security Agreements,
such security interest has been validly assigned to the Administrative
Agent and (iii) accordingly the Administrative Agent has a valid and
perfected security interest in such Inventory under the Pledge and Security
Agreements,
PROVIDED that the Majority Lenders (through the Administrative Agent) may at any
time exclude from Eligible Inventory any type of Inventory that the Majority
Lenders (in their sole discretion) determine to be unmarketable.
"ELIGIBLE PRODUCT-IN-PROCESS" of the Borrowing Base Group shall mean
work-in-process (excluding ingots) net of progress xxxxxxxx, if any (as such
items are classified on the consolidated balance sheet of such Person in
accordance with GAAP and consistent with past practice).
CREDIT AGREEMENT
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"ELIGIBLE RECEIVABLES" of the Borrowing Base Group shall mean, as at
any date, the aggregate amount of all Receivables at such date payable to
Members thereof other than the following (determined without duplication):
(a) any Receivable not payable in Dollars;
(b) any Receivable that, at the date of issuance of the invoice
therefor, was payable more than 60 days (or, in the case of an Extended
Payment Receivable, 90 days) after shipment of the related Inventory
(PROVIDED that the aggregate amount of Extended Payment Receivables
included in "Eligible Receivables" that are payable more than 60 days after
shipment of the related Inventory shall not at any time exceed
$15,000,000);
(c) any Receivable owing from a Subsidiary or Affiliate of a Member
of the Borrowing Base Group;
(d) any Receivable owing from an account debtor whose principal place
of business is located outside of the United States of America and Canada;
(e) any Receivable owing from an account debtor that the Majority
Lenders (through the Administrative Agent) have notified the Parent does
not have a satisfactory credit standing (as reasonably determined by the
Majority Lenders);
(f) any Receivable that is more than 60 days past due;
(g) all Receivables of any account debtor if more than 25% of the
aggregate amount of the Receivables owing from such account debtor shall at
the time be more than 30 days past due;
(h) all Receivables owing from any account debtor (other than an
Approved Account Debtor) to the extent the Receivables owing from such
account debtor and its Affiliates at the time exceed 5% of all Receivables
then payable to the Members of the Borrowing Base Group;
(i) any Receivable which has been subject, for 60 days or more, to
any claim on the part of the respective account debtor disputing liability
under such Receivable in whole or in part (but only to the extent the
amount of such Receivable in dispute exceeds $50,000);
CREDIT AGREEMENT
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(j) any Receivable evidenced by an Instrument (as defined in the
Pledge and Security Agreements) not in the possession of the Administrative
Agent;
(k) any Receivable representing an obligation for goods sold on
consignment, approval or a sale-or-return basis or subject to any other
repurchase or return arrangement; and
(l) any Receivable sold under a Permitted Receivables Financing.
"EMPLOYEE STOCK REPURCHASES" shall mean Dividend Payments constituting
the purchase, redemption, retirement or other acquisition of shares of Capital
Stock of the Parent, of options on any such shares or related stock appreciation
rights or similar securities, held by officers, directors or employees or former
directors, officers or employees (or their transferees, estates or beneficiaries
under their estates), upon death, disability, retirement, severance or
termination of employment or service or pursuant to any agreement under which
such shares of Capital Stock or related rights were issued.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
written notice, claim, demand or other communication (collectively, a "CLAIM")
by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
CREDIT AGREEMENT
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discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the environment,
including, without limitation, ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or toxic or hazardous substances
or wastes.
"EQUITY ISSUANCE" shall mean (a) any issuance or sale by the Parent or
any of its Subsidiaries after the Initial Borrowing Date of (i) any of its
Capital Stock, (ii) any warrants or options exercisable in respect of its
Capital Stock (other than any warrants or options issued to directors, officers
or employees of the Parent or any of its Subsidiaries pursuant to employee
benefit or other compensation-related plans established in the ordinary course
of business and any Capital Stock of the Parent or such Subsidiary issued upon
the exercise of such warrants or options) or (iii) any other security or
instrument representing an equity interest (or the right to obtain any equity
interest) in the Parent or any of its Subsidiaries or (b) the receipt by the
Parent or any of its Subsidiaries after the Initial Borrowing Date of any
capital contribution (whether or not evidenced by any equity security issued by
the recipient of such contribution); PROVIDED that Equity Issuance shall not
include (x) any such issuance or sale by any Subsidiary of the Parent to the
Parent or any Wholly Owned Subsidiary of the Parent or (y) any capital
contribution by the Parent or any Wholly Owned Subsidiary of the Parent to any
Subsidiary of the Parent.
"EQUITY RIGHTS" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of Capital Stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Parent is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under
CREDIT AGREEMENT
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Section 302(f) of ERISA and Section 412(n) of the Code, described in Section
414(m) or (o) of the Code of which the Parent is a member.
"EURODOLLAR BASE RATE" shall mean, with respect to any Eurodollar for
any Interest Period therefor:
(a) the rate per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) reported on the date two Business Days prior to the first day
of such Interest Period on Telerate Access Service Page 3750 (British
Bankers Association Settlement Rate) as the London Interbank Offered Rate
for Dollar deposits having a term comparable to such Interest Period and in
an amount of $1,000,000 or more; or
(b) if said Page shall cease to be publicly available or if the
information contained on said Page, in the sole judgment of the
Administrative Agent, shall cease to accurately reflect such London
Interbank Offered Rate, the Eurodollar Base Rate shall mean the arithmetic
mean (rounded upwards, if necessary, to the nearest 1/16 of 1%), as
determined by the Administrative Agent, of the rates per annum quoted by
the respective Reference Lenders at approximately 11:00 a.m. London time
(or as soon thereafter as practicable) on the date two Business Days prior
to the first day of such Interest Period for the offering by the respective
Reference Lenders to leading banks in the London interbank market of Dollar
deposits having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the Eurodollar Loan to be made by the
respective Reference Lenders for such Interest Period (and, if any
Reference Lender is not participating in any Eurodollar Loans during any
Interest Period therefor, the Eurodollar Base Rate for such Loans for such
Interest Period shall be determined by reference to the amount of such
Loans that such Reference Lender would have made or had outstanding had it
been participating in such Loan during such Interest Period).
"EURODOLLAR LOANS" shall mean Loans that bear interest at rates based
on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
Eurodollar Base Rate for such Loan for such Interest Period divided by 1 minus
the
CREDIT AGREEMENT
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Reserve Requirement (if any) for such Loan for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 10 hereof.
"EXCESS CASH FLOW" shall mean, for any fiscal year of the Parent, the
excess of (a) EBITDA for such period over (b) the sum of (i) the aggregate
amount of current taxes paid or payable during such period, PLUS (ii) cash
interest paid or payable during such period, PLUS (iii) all regularly scheduled
payments or prepayments of principal of Indebtedness (including, without
limitation, the principal component of any payments in respect of Capital Lease
Obligations) made during such period, PLUS (iv) Capital Expenditures made during
such period (except for any such Capital Expenditures to the extent financed
with the proceeds of Indebtedness, or Capital Lease Obligations, incurred
pursuant to Section 9.07(g) hereof during such period) PLUS (v) the lesser of
(x) $2,400,000 and (y) the aggregate amount of Dividend Payments made with
respect to the Parent's Capital Stock during such period.
"EXCESS CASH FLOW TRIGGER DATE" shall mean the earlier date as of
which:
(a) (i) the ratio of (x) Total Indebtedness as at such date to (y) TTM
EBITDA as at such date shall be less than 2.50 to 1.00, and (ii) the ratio
of (x) TTM EBITDA as at such date to (y) TTM Total Interest Expense as at
such date shall be greater than 3.00 to 1.00; or
(b) the senior unsecured, non-credit enhanced debt securities of the
Parent shall be rated Baa3 or better by Moody's and BBB- or better by
Standard & Poor's.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"EXTENDED PAYMENT RECEIVABLE" shall mean any Receivable having normal
trade terms of more than 60 days and less than or equal to 90 days.
"EXTRAORDINARY RATIONALIZATION COSTS" shall mean rationalization costs
associated with the Acquisition incurred by the Parent and its Subsidiaries, as
determined by the Parent reasonably and in good faith.
CREDIT AGREEMENT
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"FACILITY" shall mean each of the Tender Offer Tranche A Term Loan
Facility, the Tender Offer Tranche B Term Loan Facility, the Tender Offer CALI
Revolving Credit Facility, the Tender Offer CasTech Revolving Credit Facility,
the Post-Merger Tranche A Term Loan Facility, the Post-Merger Tranche B Term
Loan Facility and the Post-Merger Revolving Credit Facility. Where the context
requires, the term "Facility" shall include reference to the Swingline Facility.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, PROVIDED that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to NatWest on such Business Day on such
transactions as determined by the Administrative Agent.
"FIXED CHARGES RATIO" shall mean, as at any date, the ratio of (a) (i)
EBITDA for the then-current Calculation Period MINUS (ii) taxes paid during such
period to (b) the sum of (i) Total Interest Expense for such period PLUS (ii)
all regularly scheduled payments of principal of Senior Indebtedness (including,
without limitation, the principal component of any payments in respect of
Capital Lease Obligations) made during such period.
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"GENERAL TRIGGER DATE" shall mean the earlier date as of which:
(a) (i) the ratio of (x) Total Indebtedness as at such date to (y) TTM
EBITDA as at such date shall be less than 3.00 to 1.00, and (ii) the ratio
of (x) TTM EBITDA as at such date to (y) TTM Total Interest Expense as at
such date shall be greater than 3.00 to 1.00; or
CREDIT AGREEMENT
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(b) the senior unsecured, non-credit enhanced debt securities of the
Parent shall be rated Baa3 or better by Moody's and BBB- or better by
Standard & Poor's.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall
have a correlative meaning.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to such term
in Section 6.01(c) hereof.
"GUARANTORS" shall mean the CALI Guarantors, the CasTech Guarantors
and, with respect to the Joint Obligations, the Borrowers under the Post-Merger
Revolving Credit Facility.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCB'S"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under any Environmental Law.
"IMCO RECYCLING" shall mean IMCO Recycling Inc., a Delaware
corporation.
CREDIT AGREEMENT
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"IMCO SUPPLY AGREEMENT" shall mean the Supply Agreement dated as of
March 24, 1992 by and between Barmet and IMCO Recycling, as the same may be
modified and supplemented and in effect from time to time.
"IMMATERIAL SUBSIDIARY" shall mean, as at any date:
(a) CasTech Asia, Ltd. and Commonal Corp., PROVIDED in each case that
such Person shall cease to be an "Immaterial Subsidiary" if at any time
such Person shall have (i) at least 5% of the total consolidated assets of
the Parent and its Subsidiaries (determined as of the last day of the
fiscal year of the Parent ending on or most recently ended prior to such
date) or (ii) at least 5% of the consolidated revenues of the Parent and
its Subsidiaries for the fiscal year of the Parent ending on or most
recently ended prior to such date);
(b) each other Subsidiary of the Parent that, as at the end of and
for the quarterly accounting period ending on or most recently ended prior
to such date, shall have less than $500,000 in assets and less than
$500,000 in gross revenues; and
(c) any Subsidiary described in Section 9.08(h) hereof.
"INDEBTEDNESS" shall mean, for any Person (without duplication):
(a) obligations created, issued or incurred by such Person for
borrowed money (whether by loan, the issuance and sale of debt securities
or the sale of Property to another Person subject to an understanding or
agreement, contingent or otherwise, to repurchase such Property from such
Person);
(b) obligations of such Person to pay the deferred purchase or
acquisition price of Property or services, other than trade accounts
payable (other than for borrowed money) arising, and accrued liabilities
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered;
(c) Indebtedness of others secured by a Lien on the Property of such
Person, whether or not the respective indebtedness so secured has been
assumed by such Person;
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(d) obligations of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial
institutions for account of such Person;
(e) Capital Lease Obligations of such Person; and
(f) Indebtedness of others Guaranteed by such Person.
"INFORMATION STATEMENT" shall mean any Information Statement filed by
CasTech with the Commission, if less than 90% of the CasTech Shares shall have
been purchased by New CALC, with respect to the Merger and the Merger Agreement
pursuant to Rule 14c-2 promulgated under the Exchange Act, together with all
exhibits and schedules thereto.
"INITIAL BORROWING DATE" shall mean the date on which the initial
Tender Offer Loans are made hereunder.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar Loan,
each period commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or (in the event of a Continuation) the last day of the
next preceding Interest Period for such Loan and (subject to the provisions of
Section 2.01(f) hereof) ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as the relevant
Borrower may select as provided in Section 4.05 hereof, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing:
(i) no Interest Period for any Loan under a Post-Merger Term Loan
Facility may commence before and end after any Principal Payment Date
unless, after giving effect thereto, the aggregate principal amount of the
Loans under such Facility having Interest Periods that end after such
Principal Payment Date shall be equal to or less than the aggregate
principal amount of the Loans under such Facility scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Principal Payment Date;
(ii) if any Interest Period for any Loan under the Post-Merger
Revolving Credit Facility would otherwise end after the Post-Merger
Revolving Credit Commitment
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Termination Date, such Interest Period shall end on the Post-Merger
Revolving Credit Commitment Termination Date;
(iii) each Interest Period that would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day (or, if
such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and
(v) notwithstanding clause (i) and (ii) above, no Interest Period
shall have a duration of less than one month and, if the Interest Period
for any Eurodollar Loan would otherwise be a shorter period, such Loan
shall not be available hereunder for such period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"INVENTORY" shall mean all readily marketable materials, including raw
materials, of a type manufactured or consumed by the Members of the Borrowing
Base Group in the ordinary course of business as presently conducted (including
ingots but excluding, in any event, all work-in-process).
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether
for cash, Property, services or securities or otherwise) of Capital Stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale); (b) the making of any deposit with, or advance, loan or other extension
of credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days arising in connection
with the sale of inventory or supplies by such Person in the ordinary course of
business; (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person; (d) the entering into of any Interest Rate Protection Agreement;
or (e) the entering into of any Commodity Hedge Agreement.
CREDIT AGREEMENT
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"ISSUING BANK" shall mean NatWest and each other Lender requested by
the Parent and approved by the Administrative Agent to be an "Issuing Bank"
hereunder, as the issuers of Letters of Credit under Section 2.03 hereof,
together with their respective successors and assigns in such capacity.
"JOINT OBLIGATIONS" shall have the meaning assigned to such term in
Section 6.01(c) hereof.
"LENDER" shall have the meaning assigned to such term in the recital
of parties to this Agreement. When reference is made in this Agreement or any
other Credit Document to any "relevant" Lender in connection with any Facility,
such reference shall be deemed to refer to a Lender that has a Commitment,
outstanding Loans or outstanding Notes under such Facility.
"LETTER OF CREDIT DOCUMENTS" shall mean, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"LETTER OF CREDIT INTEREST" shall mean, for each Revolving Credit
Lender, such Xxxxxx's participation interest (or, in the case of the relevant
Issuing Bank, such Issuing Bank's retained interest) in an Issuing Bank's
liability under Letters of Credit issued by such Issuing Bank and such Xxxxxx's
rights and interests in Reimbursement Obligations and fees, interest and other
amounts payable in connection with Letters of Credit and Reimbursement
Obligations.
"LETTER OF CREDIT LIABILITY" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit PLUS (b) the aggregate unpaid principal amount
of all Reimbursement Obligations at such time due and payable in respect of all
drawings made under such Letter of Credit. For purposes of this Agreement, a
Revolving Credit Lender (other than the Issuing Bank that issued the relevant
Letter of Credit) shall be deemed to hold a Letter of Credit Liability in an
amount equal to its participation interest in the related Letter of Credit under
Section 2.03 hereof, and such Issuing Bank shall be deemed to hold a Letter of
Credit Liability in an amount equal to its retained interest in the related
Letter of Credit after giving
CREDIT AGREEMENT
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effect to the acquisition by the Revolving Credit Lenders other than such
Issuing Bank of their participation interests under said Section 2.03.
"LETTERS OF CREDIT" shall have the meaning assigned to such term in
Section 2.03(a) hereof.
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Credit Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"LOANS" shall mean each of the Tender Offer Tranche A Term Loans, the
Tender Offer Tranche B Term Loans, the Tender Offer CALI Revolving Credit Loans,
the Tender Offer CasTech Revolving Credit Loans, the Post-Merger Tranche A Term
Loans, the Post-Merger Tranche B Term Loans and the Post-Merger Revolving Credit
Loans. Where the context requires, the term "Loans" shall include reference to
Swingline Loans.
"MAJORITY LENDERS" shall mean:
(a) at any time prior to the Tender Offer Loan Maturity Date, Lenders
holding at least 51% of the aggregate Post-Merger Commitments (or, if the
Post-Merger Commitments have been terminated, Lenders holding at least 51%
of the sum of (i) the aggregate unused Tender Offer Commitments, (ii) the
aggregate unpaid principal amount of the Tender Offer Loans and (iii) the
aggregate amount of all Letter of Credit Liabilities); and
(b) at any time on and after the Tender Offer Loan Maturity Date,
Lenders holding at least 51% of the sum of (i) the aggregate unused Post-
Merger Commitments, (ii) the aggregate unpaid principal amount of the Post-
Merger Loans and (iii) the aggregate amount of all Letter of Credit
Liabilities.
"MAJORITY REVOLVING CREDIT LENDERS" shall mean Revolving Credit
Lenders having at least 51% of the aggregate amount of the Post-Merger Revolving
Credit Commitments or, if the Post-Merger Revolving Credit Commitments shall
have terminated, Lenders holding at least 51% of the sum of (a) the aggregate
CREDIT AGREEMENT
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unpaid principal amount of the Revolving Credit Loans PLUS (b) the aggregate
amount of all Letter of Credit Liabilities.
"MAJORITY TRANCHE A TERM LENDERS" shall mean Tranche A Term Loan
Lenders holding at least 51% of the aggregate Post-Merger Tranche A Term Loan
Commitments (or, if the Post-Merger Tranche A Term Loan Commitments have been
terminated, Lenders holding at least 51% of the aggregate unpaid principal
amount of the Tranche A Term Loans).
"MAJORITY TRANCHE B TERM LENDERS" shall mean Tranche B Term Loan
Lenders holding at least 51% of the aggregate Post-Merger Tranche B Term Loan
Commitments (or, if the Post-Merger Tranche B Term Loan Commitments have been
terminated, Lenders holding at least 51% of the aggregate unpaid principal
amount of the Tranche B Term Loans).
"MARGIN STOCK" shall mean "margin stock" within the meaning of
Regulations G, T, U and X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
(a) the business, properties, assets, operations, conditions (financial or
otherwise), or prospects of the Parent and its Subsidiaries (including CALI and
CasTech) taken as a whole, (b) the ability of any Obligor to perform its
obligations under any of the Basic Documents to which it is a party, (c) the
validity or enforceability of any of the Basic Documents, (d) the rights and
remedies of the Lenders and the Administrative Agent under any of the Credit
Documents or (e) the timely payment of the principal of or interest on the Loans
or the Reimbursement Obligations or other amounts payable in connection
therewith.
"MERGER" shall have the meaning assigned to such term in Preliminary
Statement (B) hereof.
"MERGER AGREEMENT" shall mean the Agreement and Plan of Merger dated
as of August 19, 1996 among CasTech, the Parent and New CALC, as the same shall,
subject to Section 9.19 hereof, be modified and supplemented and in effect from
time to time.
"MERGER DATE" shall mean the date on which the Merger shall become
effective in accordance with the terms of the Merger Agreement.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc., or any successor
thereto.
CREDIT AGREEMENT
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"MORTGAGES" shall mean, collectively, one or more Instruments of
Mortgage, Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing executed by one or more Obligors pursuant to Section 7.01(m), 7.03(d),
9.17(a), 9.18 or 9.22 hereof, in each case substantially in the form of
Exhibit F-1 or F-2 hereto, as the case may be and covering the respective
Properties and leasehold interest identified in Schedules I and II thereto, as
said Instruments of Mortgage, Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing shall be modified and supplemented and in effect
from time to time.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions are being made by the Parent or
any ERISA Affiliate and that is covered by Title IV of ERISA.
"NATWEST" shall mean National Westminster Bank Plc.
"NET AVAILABLE PROCEEDS" shall mean:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Parent and its Subsidiaries in respect of such Casualty Event net of
(A) reasonable expenses incurred by the Parent and its Subsidiaries in
connection therewith and (B) contractually required repayments of
Indebtedness to the extent secured by a Lien on such Property and any
income and transfer taxes payable by the Parent or any of its Subsidiaries
in respect of such Casualty Event;
(iii) in the case of any Equity Issuance or Debt Issuance, the
aggregate amount of all cash received by the Parent and its Subsidiaries in
respect thereof net of reasonable expenses incurred by the Parent and its
Subsidiaries in connection therewith; and
(iv) in the case of any Receivables Sale, the aggregate amount of
all cash received by the Parent and its Subsidiaries in connection with
such Receivables Sale net of reasonable expenses incurred by the Parent and
its Subsidiaries in connection therewith.
CREDIT AGREEMENT
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"NET CASH PAYMENTS" shall mean, with respect to any Disposition, the
aggregate amount of all cash payments (including, without limitation, all cash
payments received by way of deferred payment pursuant to a note or installment
receivable or otherwise, but only as and when received) received by the Parent
and its Subsidiaries directly or indirectly in connection with such Disposition;
PROVIDED that (a) Net Cash Payments shall be net of (i) the amount of any legal,
title and recording tax expenses, commissions and other fees and expenses paid
or payable by the Parent and its Subsidiaries in connection with such
Disposition and (ii) any Federal, state and local income or other taxes
estimated to be payable by the Parent and its Subsidiaries as a result of such
Disposition (but only to the extent that such estimated taxes are in fact paid
to the relevant Federal, state or local governmental authority within six months
of the date of such Disposition) and (b) Net Cash Payments shall be net of any
repayments by the Parent or any of its Subsidiaries of Indebtedness to the
extent that (i) such Indebtedness is secured by a Lien on the Property that is
the subject of such Disposition and (ii) the transferee of (or holder of a Lien
on) such Property requires that such Indebtedness be repaid as a condition to
the purchase of such Property.
"NEW CALC" shall mean (a) prior to the effectiveness of the Merger,
CALC Corporation, a Delaware corporation, and (b) from and after the
effectiveness of the Merger, CasTech, as successor by merger to CALC
Corporation.
"NEW CALC NOTE" shall mean the promissory note, substantially in the
form of Exhibit E hereto, issued by New CALC to CALI.
"NEW CALC NOTE DOCUMENTS" shall mean, collectively, the New CALC Note
and each other agreement, document and other instrument executed and delivered
by New CALC and its Subsidiaries in connection therewith.
"NON-UTILIZATION FEES" shall have the meaning assigned to such term in
Section 2.05(b) hereof.
"NOTES" shall mean each of the Tender Offer Tranche A Term Loan Notes,
the Tender Offer Tranche B Term Loan Notes, the Tender Offer CALI Revolving
Credit Notes, the Tender Offer CasTech Revolving Credit Notes, the Post-Merger
Tranche A Term Loan Notes, the Post-Merger Tranche B Term Loan Notes and the
Post-Merger Revolving Credit Notes. Where the context requires, the term
"Notes" shall include reference to the Swingline Note.
CREDIT AGREEMENT
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"OBLIGORS" shall mean, collectively, the Borrowers and the Guarantors.
"OFFER TO PURCHASE" shall mean the Offer to Purchase dated August 22,
1996, issued by New CALC in connection with the Acquisition, as the same shall,
subject to Section 9.19 hereof, be modified and supplemented and in effect from
time to time.
"OTHER EVENT OF DEFAULT" shall mean an Event of Default other than
under Section 10(a) or 9.10 hereof.
"PARENT" shall have the meaning assigned to such term in the recital
of parties to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of the United States of America, or of any
agency thereof, or obligations guaranteed as to principal and interest by
the United States of America, or of any agency thereof, in either case
maturing not more than 90 days from the date of acquisition thereof;
(b) time deposits or certificates of deposit issued by any bank or
trust company organized under the laws of the United States of America or
any state thereof whose outstanding senior long-term debt securities are
rated either A- or better by Standard & Poor's or A3 or better by Moody's,
maturing not more than 90 days from the date of acquisition thereof;
(c) commercial paper rated A-1 or better or P-1 by Standard & Poor's
or Moody's, respectively, maturing not more than 90 days from the date of
acquisition thereof;
(d) repurchase obligations with a term of not more than 30 days for
underlying securities of the types specified in paragraph (a) of this
definition with any bank or trust company meeting the qualifications
specified in paragraph (b) of this definition; and
(e) Investments in money market mutual funds substantially all of the
assets of which are cash or Permitted Investments specified in paragraphs
(a) through (d) of this definition;
CREDIT AGREEMENT
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in each case so long as the same (i) provide for the payment of principal and
interest (and not principal alone or interest alone) and (ii) are not subject to
any contingency regarding the payment of principal or interest.
"PERMITTED RECEIVABLES FINANCING" shall mean a transaction or series
of transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Receivables and Related Assets from the
Parent or any of its Subsidiaries and finances such Receivables and Related
Assets through the issuance of Indebtedness or equity interests or through the
sale of the Receivables and Related Assets or a fractional undivided interest in
the Receivables and Related Assets; PROVIDED that (a) the Board of Directors of
the Parent shall have determined in good faith that such Permitted Receivables
Financing is economically fair and reasonable to the Parent and such
Securitization Subsidiary, (b) all sales of Receivables and Related Assets to or
by such Securitization Subsidiary are made at fair market value (as determined
in good faith by the Board of Directors of the Parent), (c) the interest rate
applicable to such financing shall be a market rate of interest as of the time
such financing is entered into, (d) the covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by the
Board of Directors of the Parent), (e) no portion of the Indebtedness of a
Securitization Subsidiary is Guaranteed by or is recourse to the Parent or any
of its other Subsidiaries (other than recourse for customary representations,
warranties, covenants and indemnities, none of which shall related to the
collectibility of the Receivables and Related Assets) and (f) neither the Parent
nor any of its other Subsidiaries has any obligation to maintain or preserve
such Securitization Subsidiary's financial condition.
"PERMITTED REINVESTMENT CAPITAL EXPENDITURES" shall mean Capital
Expenditures made with the Net Available Proceeds of Casualty Events and
Dispositions that the Parent or any of its Subsidiaries is reinvesting in
replacement assets in accordance with Sections 2.10 and 9.05(c) hereof.
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"PLACEMENT AGREEMENT" shall mean the Placement Agreement dated as of
September 20, 1996 pursuant to which the
CREDIT AGREEMENT
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purchasers of the Senior Subordinated Debt have agreed to purchase and
re-offer the same.
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Parent or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"POST-DEFAULT RATE" shall mean a rate per annum equal to 2.0% PLUS the
Base Rate as in effect from time to time PLUS the Applicable Margin for Tranche
A Term Loans that are Base Rate Loans, PROVIDED that the "Post-Default Rate"
with respect to principal of a Eurodollar Loan shall be 2.0% PLUS the interest
rate for such Loan as provided in Section 3.02(b) hereof.
"POST-MERGER BORROWING PERIOD" shall mean the period from and
including the Merger Date to but not including the Post-Merger Revolving Credit
Commitment Termination Date.
"POST-MERGER COMMITMENT" shall mean a Post-Merger Tranche A Term Loan
Commitment, a Post-Merger Tranche B Term Loan Commitment or a Post-Merger
Revolving Credit Commitment.
"POST-MERGER FACILITY" shall mean each Post-Merger Term Loan Facility
and the Post-Merger Revolving Credit Facility.
"POST-MERGER LOANS" shall mean the Post-Merger Tranche A Term Loans,
the Post-Merger Tranche B Term Loans and the Post-Merger Revolving Credit Loans.
"POST-MERGER NOTES" shall mean the Post-Merger Tranche A Term Loan
Notes, the Post-Merger Tranche B Term Loan Notes and the Post-Merger Revolving
Credit Notes.
"POST-MERGER REVOLVING CREDIT BORROWERS" shall mean CALI, CasTech and
Barmet.
"POST-MERGER REVOLVING CREDIT COMMITMENT" shall mean, as to each
Revolving Credit Lender, the obligation of such Lender to make Post-Merger
Revolving Credit Loans, and to issue or participate in Letters of Credit under
the Post-Merger Revolving Credit Facility pursuant to Section 2.03 hereof, in an
aggregate principal or face amount at any one time outstanding up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Post-Merger Revolving Credit Commitment" or, in the case of a
Person that becomes a Revolving Credit Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
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instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.04 or 2.10 hereof).
The original aggregate principal amount of the Post-Merger Revolving Credit
Commitments is $225,000,000.
"POST-MERGER REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall mean
the Quarterly Date falling on or nearest to September 1, 2001.
"POST-MERGER REVOLVING CREDIT FACILITY" shall mean the revolving
credit facility provided hereunder in respect of the Post-Merger Revolving
Credit Commitments.
"POST-MERGER REVOLVING CREDIT LOANS" shall mean the loans provided for
by Section 2.01(d)(i) hereof, which may be Base Rate Loans and/or Eurodollar
Loans.
"POST-MERGER REVOLVING CREDIT NOTES" shall mean the promissory notes
under the Post-Merger Revolving Credit Facility provided for by Section 2.08(a)
hereof and all promissory notes delivered in substitution or exchange therefor,
in each case as the same shall be modified and supplemented and in effect from
time to time.
"POST-MERGER SWINGLINE LOANS" shall have the meaning assigned to such
term in Section 2.01(e)(ii) hereof.
"POST-MERGER TERM LOAN" shall mean a Post-Merger Tranche A Term Loan
or a Post-Merger Tranche B Term Loan.
"POST-MERGER TERM LOAN FACILITY" shall mean each Post-Merger Tranche A
Term Loan Facility and the Post-Merger Tranche B Term Loan Facility.
"POST-MERGER TERM LOAN NOTE" shall mean a Post-Merger Tranche A Term
Loan Note or a Post-Merger Tranche B Term Loan Note.
"POST-MERGER TRANCHE A TERM LOAN COMMITMENT" shall mean, as to each
Tranche A Term Loan Lender, the obligation of such Lender to make a single Post-
Merger Tranche A Term Loan in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Post-Merger Tranche A Term Loan Commitment" or, in the case
of a Person that becomes a Tranche A Term Loan Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment
CREDIT AGREEMENT
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pursuant to which such assignment is effected (as the same may be reduced
from time to time pursuant to Section 2.04 or 2.10 hereof). The original
aggregate principal amount of the Post-Merger Tranche A Term Loan Commitments
is $100,000,000.
"POST-MERGER TRANCHE A TERM LOAN FACILITY" shall mean the term loan
facility provided hereunder in respect of the Post-Merger Tranche A Term Loan
Commitments.
"POST-MERGER TRANCHE A TERM LOAN NOTES" shall mean the promissory
notes under the Post-Merger Tranche A Term Loan Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"POST-MERGER TRANCHE A TERM LOANS" shall mean the loans provided for
by Section 2.01(c)(i) hereof, which may be Base Rate Loans and/or Eurodollar
Loans.
"POST-MERGER TRANCHE B TERM LOAN COMMITMENT" shall mean, as to each
Tranche B Term Loan Lender, the obligation of such Lender to make a single Post-
Merger Tranche B Term Loan in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Post-Merger Tranche B Term Loan Commitment" or, in the case
of a Person that becomes a Tranche B Term Loan Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.04 or 2.10 hereof).
The original aggregate principal amount of the Post-Merger Tranche B Term Loan
Commitments is $100,000,000.
"POST-MERGER TRANCHE B TERM LOAN FACILITY" shall mean the term loan
facility provided hereunder in respect of the Post-Merger Tranche B Term Loan
Commitments.
"POST-MERGER TRANCHE B TERM LOAN NOTES" shall mean the promissory
notes under the Post-Merger Tranche B Term Loan Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"POST-MERGER TRANCHE B TERM LOANS" shall mean the loans provided for
by Section 2.01(c)(ii) hereof, which may be Base Rate Loans and/or Eurodollar
Loans.
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"PRIME RATE" shall mean, at any time, the Bank Prime Loan rate then
most recently published by the Board of Governors of the Federal Reserve System
in Federal Reserve Statistical Release H.15(519) entitled "Selected Interest
Rates", or any successor publication.
"PRINCIPAL PAYMENT DATES" shall mean the Quarterly Dates falling on or
nearest to March 1, June 1, September 1 and December 1 of each year, commencing
with December 1, 1996 through and including September 1, 2003.
"PROCESSING FEES" shall mean commissions and processing fees payable
to bailees, warehousemen, terminal operators, Processors and other third parties
holding Inventory of Members of the Borrowing Base Group, but excluding, in any
event, fees payable to IMCO Recycling under the IMCO Supply Agreement.
"PROCESSOR" shall mean a third party (including, without limitation,
IMCO Recycling) that processes Inventory of one or more Members of the Borrowing
Base Group.
"PROPERTY" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"QUARTERLY DATES" shall mean the first Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"QUARTERLY FINANCIAL STATEMENTS" shall mean the financial statements
furnished to the Lenders under Section 9.01(a) hereof (and, prior to the
delivery of the first financial statements under said Section 9.01(a), the
quarterly financial statements of the Parent as at June 30, 1996 referred to in
Section 8.02(a) hereof).
"RECAPTURE DATE" shall mean the last day of each Recapture Period.
"RECAPTURE PERIOD" shall mean:
(a) the period commencing on the Tender Offer Closing Date and ending
on the last day of the calendar month following the first date on which the
Parent and/or any of its Subsidiaries receives Net Cash Payments which,
together with all Net Cash Payments received by the Parent and its
Subsidiaries on and after the Tender Offer Closing Date, equal or exceed in
the aggregate $1,000,000; and
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(b) thereafter, each period commencing on the date immediately
following the last day of the immediately preceding Recapture Period and
ending on the last day of the calendar month following the first date on
which the Parent and/or any of its Subsidiaries receives Net Cash Payments
which, together with all Net Cash Payments received by the Parent and its
Subsidiaries on and after the date immediately following the last day of
the immediately preceding Recapture Period, equal or exceed in the
aggregate $1,000,000.
"RECEIVABLES" of any Member of the Borrowing Base Group shall mean, as
at any date, the unpaid portion of the obligation, as stated on the respective
invoice, of a customer of such Member in respect of Inventory sold and shipped
by such Member to such customer, net of any credits, rebates or offsets owed to
such customer and also net of any commissions payable to third parties (and for
purposes hereof, a credit or rebate paid by check or draft of such Member or any
of its Subsidiaries shall be deemed to be outstanding until such check or draft
shall have been debited to the account of such Person on which such check or
draft was drawn).
"RECEIVABLES AND RELATED ASSETS" shall mean accounts receivable and
instruments, chattel paper, obligations, general intangibles and other similar
assets, in each case relating to such receivables, including interests in
merchandise or goods, the sale or lease of which gave rise to such receivable,
related contractual rights, guarantees, insurance proceeds, collections, other
related assets and proceeds of all of the foregoing.
"RECEIVABLES SALE" shall mean any sale, transfer or other disposition
of Receivables and Related Assets by the Parent or any of its Subsidiaries, but
excluding sales or transfers of Receivables and Related Assets for purposes of
collection in the ordinary course of business and consistent with past practice.
"REFERENCE LENDERS" shall mean NatWest and such other Lender or
Lenders as the Administrative Agent and the Parent shall agree (or their
respective Applicable Lending Offices, as the case may be).
"REGULATION A", "REGULATION D", "REGULATION G", "REGULATION T",
"REGULATION U" and "REGULATION X" shall mean, respectively, Regulations A, D, G,
T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
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"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"REIMBURSEMENT OBLIGATION" shall mean, at any time, the obligations of
a Revolving Credit Borrower then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts paid by
an Issuing Bank in respect of any drawings under a Letter of Credit issued by
such Issuing Bank under such Borrower's Revolving Credit Facility.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the environment, including, without limitation, the movement of Hazardous
Materials through ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata.
"RELEVANT PARTIES" shall have the meaning assigned to such term in
Section 10(b) hereof.
"RESERVED COMMITMENTS" shall have the meaning assigned to such term in
Section 2.11(a) hereof.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
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"RESPONSIBLE OFFICER" shall mean, with respect to any Person, the
Treasurer, Chief Financial Officer and Controller of such Person and such other
officers of the relevant Person as the Administrative Agent may agree.
"REVOLVING CREDIT BORROWER" shall mean: (a) with respect to the
Tender Offer CALI Revolving Credit Facility, CALI; (b) with respect to the
Tender Offer CasTech Revolving Credit Facility, CasTech; and (c) with respect to
the Post-Merger Revolving Credit Facility, each of CALI, CasTech and Barmet.
"REVOLVING CREDIT COMMITMENT" shall mean a Tender Offer Revolving
Credit Commitment or a Post-Merger Revolving Credit Commitment.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with respect to
any Revolving Credit Lender under any Revolving Credit Facility, the ratio of
(a) the amount of the Revolving Credit Commitment of such Lender under such
Facility to (b) the aggregate amount of the Revolving Credit Commitments of all
of the Lenders under such Facility.
"REVOLVING CREDIT FACILITY" shall mean a Tender Offer Revolving Credit
Facility or the Post-Merger Revolving Credit Facility.
"REVOLVING CREDIT LENDERS" shall mean (a) on the date hereof, the
Lenders having Revolving Credit Commitments on Schedule I hereto and
(b) thereafter, the Lenders from time to time holding Revolving Credit Loans or
and Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"REVOLVING CREDIT LOANS" shall mean the Tender Offer CALI Revolving
Credit Loans, the Tender Offer CasTech Revolving Credit Loans and the Post-
Merger Revolving Credit Loans.
"REVOLVING CREDIT NON-UTILIZATION FEE" shall have the meaning assigned
to such term in Section 2.05(a) hereof.
"SECURITIZATION SUBSIDIARY" shall mean a Subsidiary of the Parent (all
of the outstanding Capital Stock of which, other than de minimis preferred stock
and director's qualifying shares, if any, is owned, directly or indirectly, by
the Parent) or another special purpose vehicle that is established for the
limited purpose of acquiring and financing Receivables and Related Assets of the
Parent and/or any of its Subsidiaries and engaging in activities ancillary
thereto.
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"SECURITY DOCUMENTS" shall mean, collectively, the Commonwealth Pledge
and Security Agreement, the CasTech Pledge and Security Agreement, the Mortgages
and all Uniform Commercial Code financing statements required thereby to be
filed with respect to the security interests in personal Property and fixtures
created pursuant thereto.
"SENIOR INDEBTEDNESS" shall mean all Indebtedness of the Parent and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) other than Subordinated Indebtedness.
"SENIOR INDEBTEDNESS TO EBITDA RATIO" shall mean:
(a) for determinations prior to September 30, 1996, the ratio of (i)
Senior Indebtedness outstanding at the close of business on the Merger Date
to (ii) $79,900,000; and
(b) for determinations on and after September 30, 1996, the ratio of
(i) Senior Indebtedness outstanding as at the last day of any fiscal
quarter of the Parent ending on or most recently ended prior to such day to
(ii) TTM EBITDA as at such day.
"SENIOR INTEREST COVERAGE RATIO" shall mean, at any date, the ratio of
(a) EBITDA for the then-current Calculation Period to (b) Senior Interest
Expense for such period.
"SENIOR INTEREST EXPENSE" shall mean, for any period, the sum, for the
Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of all interest in respect of Specified
Senior Bank Debt accrued during such period (whether or not actually paid during
such period).
"SENIOR LEVERAGE RATIO" shall mean, as at any date, the ratio of (a)
Specified Senior Bank Debt as at such date to (b) EBITDA for the period of four
consecutive fiscal quarters of the Parent ending on or most recently ended prior
to such date for which Quarterly Financial Statements have been delivered.
"SENIOR SUBORDINATED DEBT" shall mean the Indebtedness of the Parent
in respect of the 10-3/4% Senior Subordinated Notes of the Parent due October 1,
2006 issued under the Senior Subordinated Debt Indenture.
CREDIT AGREEMENT
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"SENIOR SUBORDINATED DEBT DOCUMENTS" shall mean the Placement
Agreement, the Senior Subordinated Debt Indenture, the securities or other
instruments evidencing the Senior Subordinated Debt and all other documents,
instruments and agreements executed and delivered in connection with the
original issuance of the Senior Subordinated Debt, in each case, as the same
shall, subject to Section 9.19 hereof, be modified and supplemented and in
effect from time to time.
"SENIOR SUBORDINATED DEBT INDENTURE" shall mean the Indenture dated as
of September 20, 1996 between the Parent, each of the subsidiary guarantors
party thereto and Xxxxxx Trust and Savings Bank, as Trustee, as the same shall,
subject to Section 9.19 hereof, be modified and supplemented and in effect from
time to time.
"SIGNING DATE" shall mean the earliest date as of which each of the
intended parties hereto shall have executed and delivered counterparts hereof.
"SPECIAL INVENTORY" of the Borrowing Base Group shall mean, as at any
date, all Inventory (other than Eligible Inventory) of the Alflex division of
CasTech constituting finished goods being held by third parties on consignment
on behalf of Members of the Borrowing Base Group in the ordinary course of
business as at such date, but only to the extent that the relevant Member of the
Borrowing Base Group shall have filed an appropriate Uniform Commercial Code
financing statement in the respective jurisdiction in which such Inventory is
located naming the respective Processor or other third party as "debtor", such
Member as "secured party" and the Administrative Agent as "assignee"; PROVIDED
that the Majority Lenders (through the Administrative Agent) may at any time
exclude from Special Inventory any type of Inventory that the Majority Lenders
(in their sole discretion) determine to be unmarketable.
"SPECIFIED DEBT ISSUANCE" shall mean any incurrence or issuance of
Indebtedness under Section 9.07 hereof other than under paragraph (g) thereof
(except to the extent such Indebtedness constitutes Capital Lease Obligations
and other Indebtedness secured by Liens permitted under Section 9.06(i)
or 9.06(j) hereof).
"SPECIFIED EVENT OF DEFAULT PERIOD" shall mean:
(a) any period during which an Event of Default has occurred and is
continuing under Section 10(a) hereof;
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(b) any period during which an Event of Default has occurred and is
continuing under Section 9.10 hereof; and
(c) the period specified below relating to any Other Event of Default
that continues unremedied for a period of 30 or more days after notice
thereof to the Parent by the Administrative Agent or any Lender (through
the Administrative Agent). For purposes of this paragraph (c), the
"Specified Event of Default Period" relating to any Other Event of Default
shall be the period:
(i) commencing on the earlier of (x) the date on which the
Parent first obtains knowledge of the occurrence of such Other Event
of Default and (y) the date on which notice of such Other Event of
Default is delivered to the Parent by the Administrative Agent or any
Lender (through the Administrative Agent) and
(ii) ending on the date on which such Other Event of Default is
cured or waived.
"SPECIFIED SENIOR BANK DEBT" shall mean all Indebtedness of the Parent
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) in respect of Tranche A Term Loans, Revolving Credit Loans
and Letters of Credit.
"STANDARD & POOR'S" shall mean Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc., or any successor thereto.
"STOCK REPURCHASES" shall mean Dividend Payments constituting the
purchase, redemption, retirement or other acquisition of shares of any class of
Capital Stock of the Parent, but excluding Employee Stock Repurchases.
"SUBORDINATED INDEBTEDNESS" shall mean, collectively, (a) Senior
Subordinated Debt and (b) other Indebtedness (i) for which the Parent is
directly and primarily liable, (ii) in respect of which none of its Subsidiaries
is contingently or otherwise obligated and (iii) that is subordinated to the
obligations of the Obligors hereunder on terms, and pursuant to documentation
containing other terms (including interest, amortization, covenants and events
of default), no less favorable to the Lenders than the terms set forth in the
Senior Subordinated Debt Documents or otherwise in form and substance
satisfactory to the Majority Lenders.
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"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"SUBSIDIARY GUARANTORS" shall have the meaning assigned to such term
in the recital of parties to this Agreement.
"SWINGLINE COMMITMENT" shall mean the obligation of NatWest to make
Swingline Loans in an aggregate principal at any one time outstanding up to but
not exceeding $5,000,000.
"SWINGLINE FACILITY" shall mean the swingline facility provided
hereunder in respect of the Swingline Commitments.
"SWINGLINE LOANS" shall have the meaning assigned to such term in
Section 2.01(e)(ii) hereof.
"SWINGLINE NOTE" shall mean a promissory note provided for by
Section 2.08(a) hereof and any promissory note delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TENDER OFFER" shall mean the offer by New CALC to purchase for cash
all of the CasTech Shares pursuant to the Tender Offer Documents.
"TENDER OFFER BORROWING PERIOD" shall mean the period from and
including the Tender Offer Closing Date to but not including the Tender Offer
Loan Commitment Termination Date.
"TENDER OFFER CALI REVOLVING CREDIT COMMITMENT" shall mean, as to each
Revolving Credit Lender, the obligation of such Lender to make Tender Offer CALI
Revolving Credit Loans, and to issue or participate in Letters of Credit
pursuant to Section 2.03 hereof, in an aggregate principal or face amount at any
one time outstanding up to but not exceeding the amount set opposite the name of
such Lender on Schedule I hereto under the
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caption "Tender Offer CALI Revolving Credit Commitment" or, in the case of a
Person that becomes a Revolving Credit Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as
the same may be reduced from time to time pursuant to Section 2.04 or 2.10
hereof). The original aggregate principal amount of the Tender Offer CALI
Revolving Credit Commitments is $175,000,000.
"TENDER OFFER CALI REVOLVING CREDIT FACILITY" shall mean the
revolving credit facility provided hereunder in respect of the Tender Offer CALI
Revolving Credit Commitments.
"TENDER OFFER CALI REVOLVING CREDIT LOAN" shall mean the loans
provided for by Section 2.01(b)(i) hereof.
"TENDER OFFER CALI REVOLVING CREDIT NOTES" shall mean the promissory
notes under the Tender Offer CALI Revolving Credit Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TENDER OFFER CASTECH REVOLVING CREDIT COMMITMENT" shall mean, as to
each Revolving Credit Lender, the obligation of such Lender to make Tender Offer
CasTech Revolving Credit Loans, and to issue or participate in Letters of Credit
under the Tender Offer CasTech Revolving Credit Facility pursuant to
Section 2.03 hereof, in an aggregate principal or face amount at any one time
outstanding up to but not exceeding the amount set opposite the name of such
Lender on Schedule I hereto under the caption "Tender Offer CasTech Revolving
Credit Commitment" or, in the case of a Person that becomes a Revolving Credit
Lender pursuant to an assignment permitted under Section 12.06(b) hereof, as
specified in the respective instrument of assignment pursuant to which such
assignment is effected (as the same may be reduced from time to time pursuant to
Section 2.04 or 2.10 hereof). The original aggregate principal amount of the
Tender Offer CasTech Revolving Credit Commitments is $50,000,000.
"TENDER OFFER CASTECH REVOLVING CREDIT FACILITY" shall mean the
revolving credit facility provided hereunder in respect of the Tender Offer
CasTech Revolving Credit Commitments.
"TENDER OFFER CASTECH REVOLVING CREDIT LOAN" shall mean the loans
provided for by Section 2.01(b)(ii) hereof.
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"TENDER OFFER CASTECH REVOLVING CREDIT NOTES" shall mean the
promissory notes under the Tender Offer CasTech Revolving Credit Facility
provided for by Section 2.08(a) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"TENDER OFFER CLOSING DATE" shall mean the date (on or before
September 30, 1996) of the initial purchase by New CALC of the CasTech Shares
tendered pursuant to the Tender Offer.
"TENDER OFFER COMMITMENT" shall mean a Tender Offer Tranche A Term
Loan Commitment, a Tender Offer Tranche B Term Loan Commitment, a Tender Offer
CALI Revolving Credit Commitment or a Tender Offer CasTech Revolving Credit
Commitment.
"TENDER OFFER DOCUMENTS" shall mean the Offer to Purchase, the
Schedule 14D-1 filed by New CALC with respect to the Offer to Purchase, and all
amendments, exhibits and schedules thereto and related documents distributed to
the shareholders of CasTech or filed with the Commission in connection with the
Acquisition, in each case prior to the date of this Agreement.
"TENDER OFFER FACILITY" shall mean each Tender Offer Term Loan
Facility and each Tender Offer Revolving Credit Facility.
"TENDER OFFER LOAN COMMITMENT TERMINATION DATE" shall mean the earlier
of (a) the Merger Date and (b) November 29, 1996.
"TENDER OFFER LOAN MATURITY DATE" shall mean the earlier of (a) the
date 180 days after the Tender Offer Closing Date (or, if such date is not a
Business Day, the next preceding Business Day) and (b) the Merger Date.
"TENDER OFFER LOANS" shall mean the Tender Offer Tranche A Term Loans,
the Tender Offer Tranche B Term Loans, the Tender Offer CALI Revolving Credit
Loans and the Tender Offer CasTech Revolving Credit Loans.
"TENDER OFFER NOTES" shall mean each of the Tender Offer Tranche A
Term Loan Notes, the Tender Offer Tranche B Term Loan Notes, the Tender Offer
CALI Revolving Credit Notes and the Tender Offer CasTech Revolving Credit Notes.
CREDIT AGREEMENT
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"TENDER OFFER REVOLVING CREDIT COMMITMENT" shall mean a Tender Offer
CALI Revolving Credit Commitment or a Tender Offer CasTech Revolving Credit
Commitment.
"TENDER OFFER REVOLVING CREDIT FACILITY" shall mean each of the Tender
Offer CALI Revolving Credit Facility and the Tender Offer CasTech Revolving
Credit Facility.
"TENDER OFFER REVOLVING CREDIT LOAN" shall mean a Tender Offer CALI
Revolving Credit Loan or a Tender Offer CasTech Revolving Credit Loan.
"TENDER OFFER REVOLVING CREDIT NOTE" shall mean a Tender Offer CALI
Revolving Credit Note or a Tender Offer CasTech Revolving Credit Note.
"TENDER OFFER SWINGLINE LOANS" shall have the meaning assigned to such
term in Section 2.01(e)(i) hereof.
"TENDER OFFER TERM LOAN" shall mean a Tender Offer Tranche A Term Loan
or a Tender Offer Tranche B Term Loan.
"TENDER OFFER TERM LOAN FACILITY" shall mean each of the Tender Offer
Tranche A Term Loan Facility and the Tender Offer Tranche B Term Loan Facility.
"TENDER OFFER TERM LOAN LENDER" shall mean a Tender Offer Tranche A
Term Loan Lender or a Tender Offer Tranche B Term Loan Lender.
"TENDER OFFER TERM LOAN NOTE" shall mean a Tender Offer Tranche A Term
Loan Note or a Tender Offer Tranche B Term Loan Note.
"TENDER OFFER TRANCHE A TERM LOANS" shall mean the loans provided for
by Section 2.01(a)(i) hereof.
"TENDER OFFER TRANCHE A TERM LOAN COMMITMENT" shall mean, as to each
Tranche A Term Loan Lender, the obligation of such Lender to make a single
Tender Offer Tranche A Term Loan in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Tender Offer Tranche A Term Loan Commitment" or, in the case
of a Person that becomes a Tranche A Term Loan Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.04 or 2.10
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hereof). The original aggregate principal amount of the Tender Offer Tranche
A Term Loan Commitments is $100,000,000.
"TENDER OFFER TRANCHE A TERM LOAN FACILITY" shall mean the term loan
facility provided hereunder in respect of the Tender Offer Tranche A Term Loan
Commitments.
"TENDER OFFER TRANCHE A TERM LOAN NOTES" shall mean the promissory
notes under the Tender Offer Tranche A Term Loan Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TENDER OFFER TRANCHE B TERM LOANS" shall mean the loans provided for
by Section 2.01(a)(ii) hereof.
"TENDER OFFER TRANCHE B TERM LOAN COMMITMENT" shall mean, as to each
Tranche B Term Loan Lender, the obligation of such Lender to make a single
Tender Offer Tranche B Term Loan in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Tender Offer Tranche B Term Loan Commitment" or, in the case
of a Person that becomes a Tranche B Term Loan Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.04 or 2.10 hereof).
The original aggregate principal amount of the Tender Offer Tranche B Term Loan
Commitments is $100,000,000.
"TENDER OFFER TRANCHE B TERM LOAN FACILITY" shall mean the term loan
facility provided hereunder in respect of the Tender Offer Tranche B Term Loan
Commitments.
"TENDER OFFER TRANCHE B TERM LOAN NOTES" shall mean the promissory
notes under the Tender Offer Tranche B Term Loan Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TERM LOAN" shall mean a Tranche A Term Loan or a Tranche B Term Loan.
"TERM LOAN BORROWER" shall mean: (a) with respect to the Tender Offer
Term Loan Facilities, CALI; and (c) with respect to the Post-Merger Term Loan
Facilities, CasTech.
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"TERM LOAN FACILITY" shall mean each of the Tender Offer Tranche A
Term Loan Facility, the Tender Offer Tranche B Term Loan Facility, the Post-
Merger Tranche A Term Loan Facility and the Post-Merger Tranche B Term Loan
Facility.
"TERM LOAN LENDER" shall mean a Tranche A Term Loan Lender or a
Tranche B Term Loan Lender.
"TERM LOAN NON-UTILIZATION FEE" shall have the meaning assigned to
such term in Section 2.05(b) hereof.
"TOTAL INDEBTEDNESS" shall mean, as at any date, the sum, for the
Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all Indebtedness
and (b) all other liabilities that should be classified as indebtedness on the
Parent's consolidated balance sheet.
"TOTAL INTEREST COVERAGE RATIO" shall mean, at any date, the ratio of
(a) EBITDA for the then-current Calculation Period to (b) Total Interest Expense
for such period.
"TOTAL INTEREST EXPENSE" shall mean, for any period, the sum, for the
Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations) accrued or capitalized
during such period (whether or not actually paid during such period) PLUS the
net amount payable (or MINUS the net amount receivable) under Interest Rate
Protection Agreements during such period (whether or not actually paid or
received during such period).
"TOTAL LEVERAGE RATIO" shall mean, as at any date of determination,
the ratio of (a) Total Indebtedness as at such date to (b) EBITDA for the period
of four consecutive fiscal quarters of the Parent ending on or most recently
ended prior to such date for which Quarterly Financial Statements have been
delivered.
"TRANCHE A TERM LOAN" shall mean a Tender Offer Tranche A Term Loan or
a Post-Merger Tranche A Term Loan.
"TRANCHE A TERM LOAN COMMITMENT" shall mean a Tender Offer Tranche A
Term Loan Commitment or a Post-Merger Tranche A Term Loan Commitment.
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"TRANCHE A TERM LOAN LENDERS" shall mean (a) on the date hereof, the
Lenders having Tranche A Term Loan Commitments on Schedule I hereto and
(b) thereafter, the Lenders from time to time holding Tranche A Term Loans and
Tranche A Term Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"TRANCHE A TERM LOAN NOTE" shall mean a Tender Offer Tranche A Term
Loan Note or a Post-Merger Tranche A Term Loan Note.
"TRANCHE B TERM LOAN" shall mean a Tender Offer Tranche B Term Loan or
a Post-Merger Tranche B Term Loan.
"TRANCHE B TERM LOAN COMMITMENT" shall mean a Tender Offer Tranche B
Term Loan Commitment or a Post-Merger Tranche B Term Loan Commitment.
"TRANCHE B TERM LOAN LENDERS" shall mean (a) on the date hereof, the
Lenders having Tranche B Term Loan Commitments on Schedule I hereto and
(b) thereafter, the Lenders from time to time holding Tranche B Term Loans and
Tranche B Term Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"TRANCHE B TERM LOAN NOTE" shall mean a Tender Offer Tranche B Term
Loan Note or a Post-Merger Tranche B Term Loan Note.
"TTM EBITDA" shall mean, as at any date, EBITDA for the twelve-month
period ending on such date (if such date is the last day of a calendar month) or
on the last day of the calendar month most recently ended prior to such date.
"TTM TOTAL INTEREST EXPENSE" shall mean, as at any date, Total
Interest Expense for the twelve-month period ending on such date (if such date
is the last day of a calendar month) or on the last day of the calendar month
most recently ended prior to such date.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"VOTING STOCK" shall mean, with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
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"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
1.02 ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at
the time of delivery thereof in the manner described in paragraph (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Lenders hereunder (which, prior to the delivery of
the first financial statements under Section 9.01 hereof, shall mean the audited
financial statements as at December 31, 1995 referred to in Section 8.02
hereof). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
financial statements furnished to the Lenders pursuant to Section 9.01 hereof
(or, prior to the delivery of the first financial statements under Section 9.01
hereof, used in the preparation of the audited financial statements as at
December 31, 1995 referred to in Section 8.02 hereof) unless (i) the Parent
shall have objected to determining such compliance on such basis at the time of
delivery of such financial statements or (ii) the Majority Lenders shall so
object in writing within 30 days after delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 9.01 hereof,
shall mean the audited financial statements referred to in Section 8.02 hereof).
(b) The Parent shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 9.01
hereof (i) a description in reasonable detail of any material variation between
the
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application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) above and (ii) reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) On the date hereof, (i) the last day of the fiscal year of
CasTech and each of its Subsidiaries is March 31, and the last days of the first
three fiscal quarters in each of their fiscal years is June 30, September 30 and
December 31, and (ii) the last day of the fiscal year of the Parent and each of
its Subsidiaries (other than CasTech and CasTech's Subsidiaries) is December 31,
and the last days of the first three fiscal quarters in each of their fiscal
years is March 31, June 30 and September 30. To enable the ready and consistent
determination of compliance with the covenants set forth in Section 9 hereof,
(x) as promptly as practicable following the Merger Date, the Parent will cause
CasTech and each of CasTech's Subsidiaries to change the last day of their
fiscal year to December 31, and to change the last days of the first three
fiscal quarters in each of their fiscal years to March 31, June 30 and September
30, respectively; and (y) except as provided in the preceding paragraph (x),
neither the Parent nor any of its Subsidiaries (including CasTech and each of
CasTech's Subsidiaries) will change the last day of its fiscal year or the last
days of the first three fiscal quarters in each of its fiscal years.
1.03 TYPES OF LOANS. Loans hereunder are distinguished by "Type".
The "Type" of a Loan refers to whether such Loan is a Base Rate Loan or a
Eurodollar Loan, each of which constitutes a Type.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.01 LOANS.
(a) TENDER OFFER TERM LOANS.
(i) TRANCHE A. Each Tranche A Term Loan Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to
CALI in Dollars during the Tender Offer Borrowing Period in an aggregate
principal amount up to but not exceeding the amount of the Tender Offer
Tranche A Term Loan Commitment of such Lender.
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(ii) TRANCHE B. Each Tranche B Term Loan Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to
CALI in Dollars during the Tender Offer Borrowing Period in an aggregate
principal amount up to but not exceeding the amount of the Tender Offer
Tranche B Term Loan Commitment of such Lender.
(iii) ALL TENDER OFFER TERM LOANS. Unless the Lenders otherwise
agree, Tender Offer Term Loans may be made only as Base Rate Loans.
(b) TENDER OFFER REVOLVING CREDIT LOANS.
(i) CALI. Each Revolving Credit Lender severally agrees, on the
terms and conditions of this Agreement, to make loans to CALI in Dollars
during the Tender Offer Borrowing Period in an aggregate principal amount
at any one time outstanding up to but not exceeding the amount of the
Tender Offer CALI Revolving Credit Commitment of such Lender as in effect
from time to time, PROVIDED that in no event shall the aggregate principal
amount of all Loans (including all Swingline Loans), together with the
aggregate amount of all Letter of Credit Liabilities, under the Tender
Offer CALI Revolving Credit Facility during the Tender Offer Borrowing
Period exceed the aggregate amount of the Commitments under such Facility
as in effect from time to time.
(ii) CASTECH. Each Revolving Credit Lender severally agrees, on the
terms and conditions of this Agreement, to make loans to CasTech in Dollars
during the Tender Offer Borrowing Period in an aggregate principal amount
at any one time outstanding up to but not exceeding the amount of the
Tender Offer CasTech Revolving Credit Commitment of such Lender as in
effect from time to time, PROVIDED that in no event shall the aggregate
principal amount of all Loans, together with the aggregate amount of all
Letter of Credit Liabilities, under the Tender Offer CasTech Revolving
Credit Facility during the Tender Offer Borrowing Period exceed the
aggregate amount of the Commitments under such Facility as in effect from
time to time.
(iii) ALL TENDER OFFER REVOLVING CREDIT LOANS. Unless the Lenders
otherwise agree, Tender Offer Revolving Credit Loans may be made only as
Base Rate Loans.
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(c) POST-MERGER TERM LOANS.
(i) TRANCHE A. Each Tranche A Term Loan Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to
CasTech in Dollars on the Merger Date in an aggregate principal amount up
to but not exceeding the amount of the Post-Merger Tranche A Term Loan
Commitment of such Lender.
(ii) TRANCHE B. Each Tranche B Term Loan Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to
CasTech in Dollars on the Merger Date in an aggregate principal amount up
to but not exceeding the amount of the Post-Merger Tranche B Term Loan
Commitment of such Lender.
(iii) ALL POST-MERGER TERM LOANS. CasTech may Convert Loans of one
Type under one Post-Merger Term Loan Facility into Loans of another Type
under the same Facility (as provided in Section 2.09 hereof) or Continue
Loans of one Type under one Post-Merger Term Loan Facility as Loans of the
same Type under the same Facility (as provided in Section 2.09 hereof).
(d) POST-MERGER REVOLVING CREDIT LOANS.
(i) CALI, CASTECH AND BARMET. Each Revolving Credit Lender severally
agrees, on the terms and conditions of this Agreement, to make loans to
each of CALI, CasTech and Barmet in Dollars during the Post-Merger
Borrowing Period in an aggregate principal amount at any one time
outstanding (as to all such Borrowers) up to but not exceeding the amount
of the Post-Merger Revolving Credit Commitment of such Lender as in effect
from time to time, PROVIDED that in no event shall the sum of (x) the
aggregate principal amount of all Loans (including all Swingline Loans),
together with the aggregate amount of all Letter of Credit Liabilities,
under the Post-Merger Revolving Credit Facility PLUS (y) the aggregate
amount of the Reserved Commitments exceed the aggregate amount of the
Commitments under such Facility as in effect from time to time.
(ii) ALL POST-MERGER REVOLVING CREDIT LOANS. Subject to the terms
and conditions of this Agreement, during the Post-Merger Borrowing Period
the Revolving Credit Borrowers may borrow, repay and reborrow the amount of
the Commitments under the Post-Merger Revolving Credit Facility by means of
Base Rate Loans and Eurodollar Loans and may Convert Loans
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of one Type under the Post-Merger Revolving Credit Facility into Loans of
another Type under such Facility (as provided in Section 2.09 hereof) or
Continue Loans of one Type under the Post-Merger Revolving Credit Facility
as Loans of the same Type under such Facility (as provided in Section 2.09
hereof).
(e) SWINGLINE LOANS. Subject to the terms and conditions of this
Agreement:
(i) in addition to the Tender Offer CALI Revolving Credit Loans
provided for in Section 2.01(b)(i) hereof, NatWest agrees to make loans
("TENDER OFFER SWINGLINE LOANS") to CALI during the Tender Offer Borrowing
Period; and
(ii) in addition to the Post-Merger Revolving Credit Loans provided
for in Section 2.01(d)(i) hereof, NatWest agrees to make loans ("POST-
MERGER SWINGLINE LOANS" and, together with Tender Offer Swingline Loans,
the "SWINGLINE LOANS") to the Post-Merger Revolving Credit Borrowers during
the Post-Merger Borrowing Period.
During the Tender Offer Borrowing Period and the Post-Merger Borrowing Period,
as the case may be, the relevant Borrowers may borrow, repay and reborrow
Swingline Loans, PROVIDED that the sum of (x) the aggregate principal amount of
all Loans (including all Swingline Loans), together with the aggregate amount of
all Letter of Credit Liabilities, under the relevant Revolving Credit Facility
PLUS (y) in the case of the Post-Merger Revolving Credit Facility, the Reserved
Commitments, shall not at any time exceed the aggregate amount of the
Commitments thereunder nor shall the aggregate principal amount of all Swingline
Loans exceed $5,000,000. All Swingline Loans shall be made only as Base Rate
Loans and may not be made as or Converted into Eurodollar Loans.
Upon demand by the Swingline Lender through the Administrative Agent,
each other Lender having a Commitment under the relevant Revolving Credit
Facility shall purchase from the Swingline Lender, and the Swingline Lender
shall sell and assign to each other such Lender, such other Lender's Revolving
Credit Commitment Percentage of each outstanding Swingline Loan (and related
claims for accrued and unpaid interest thereon) made by such Swingline Lender,
by making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Swingline Lender by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the sum of
(x) the portion of the outstanding principal amount of such
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Swingline Loans to be purchased by such Lender PLUS (y) interest accrued and
unpaid to and as of such date on such portion of the outstanding principal
amount of such Swingline Loans. Each Lender's obligations to make such
payments to the Administrative Agent for account of the Swingline Lender
under this paragraph, and the Swingline Lender's right to receive the same,
shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the failure of any
other Lender to make its payment under this paragraph, the financial
condition of any Obligor, the existence of any Default, the failure of any of
the conditions set forth in Section 7 hereof to be satisfied, or the
termination of all or any of the Commitments. Each such payment to the
Swingline Lender shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender agrees to purchase its Revolving Credit
Commitment Percentage of such outstanding Swingline Loans on (x) the Business
Day on which demand therefor is made by such Swingline Lender, PROVIDED that
notice of such demand is given not later than 12:00 noon New York City time
on such Business Day or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by the Swingline Lender to any other Lender of a portion of the
Swingline Lender's Swingline Loans, the Swingline Lender represents and
warrants to such other Lender that the Swingline Lender is the legal and
beneficial owner of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swingline Loan. If and to the extent that any Lender shall not have so made
the amount of such Swingline Loan available to the Administrative Agent, such
Xxxxxx agrees to pay to the Administrative Agent for the account of the
Swingline Lender forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swingline Lender until
the date such amount is paid to the Administrative Agent, at the Federal
Funds Rate.
(f) LIMIT ON EURODOLLAR LOANS. No more than eight separate Interest
Periods in respect of Eurodollar Loans under a Facility from each Lender may be
outstanding at any one time, PROVIDED that prior to the date occurring three
months after the Merger Date, all Eurodollar Loans under any Facility must have
an Interest Period of one month's duration and be coterminous with the Interest
Periods of all other Eurodollar Loans of any Facility, and, to the extent that
prior to such date a Eurodollar Loan would not satisfy such conditions, such
Loan shall be made, or Continued as or Converted into, a Base Rate Loan.
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2.02 BORROWINGS. Each Borrower shall give the Administrative Agent
(or, in the case of Swingline Loans, shall give NatWest) notice of each
borrowing by it hereunder as provided in Section 4.05 hereof. Not later than
1:00 p.m. New York time on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Loan or Loans to be made by it on
such date to the Administrative Agent, at an account specified by the
Administrative Agent, in immediately available funds, for account of the
relevant Borrower. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, promptly be made
available to the relevant Borrower by depositing the same, in immediately
available funds, in an account of such Borrower designated by such Borrower.
2.03 LETTERS OF CREDIT.
(a) Subject to the terms and conditions of this Agreement, the
Commitments under a Revolving Credit Facility may be utilized, upon the request
of the relevant Revolving Credit Borrower, in addition to the Revolving Credit
Loans to such Borrower under such Facility provided for by Section 2.01 hereof,
by the issuance by the Issuing Banks of letters of credit (collectively,
"LETTERS OF CREDIT") for account of such Borrower or any of its Subsidiaries (as
specified by such Borrower), PROVIDED that in no event shall:
(i) the sum of (x) the aggregate amount of all Letter of Credit
Liabilities under a Revolving Credit Facility, together with the aggregate
principal amount of the Loans (including all Swingline Loans) under such
Facility, PLUS (y) in the case of the Post-Merger Revolving Credit
Facility, the Reserved Commitments, exceed the aggregate amount of the
Commitments under such Facility as in effect from time to time;
(ii) the outstanding aggregate amount of all Letter of Credit
Liabilities under:
(x) a Tender Offer Revolving Credit Facility exceed $5,000,000;
and
(y) the Post-Merger Revolving Credit Facility exceed
$30,000,000; and
(iii) the expiration date of any Letter of Credit extend beyond:
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(x) in the case of any Letter of Credit issued under a Tender
Offer Revolving Credit Facility, March 14, 1997; and
(y) in the case of any Letter of Credit issued under the Post-
Merger Revolving Credit Facility, the earlier of the date five
Business Days prior to the Post-Merger Revolving Credit Commitment
Termination Date and the date twelve months following the issuance of
such Letter of Credit.
In addition, on the Merger Date, all Letters of Credit outstanding on the Merger
Date shall automatically, without any action on the part of any Person, become
Letters of Credit outstanding under the Post-Merger Revolving Credit Facility.
(b) The following additional provisions shall apply to Letters of
Credit:
(i) The relevant Revolving Credit Borrower shall give the
Administrative Agent at least three Business Days' irrevocable prior notice
(effective upon receipt) specifying the Business Day (which shall be no
later than 30 days preceding the Commitment Termination Date under the
relevant Revolving Credit Facility) each Letter of Credit is to be issued,
the Issuing Bank to issue the same and the account party or parties
therefor and describing in reasonable detail the proposed terms of such
Letter of Credit (including the beneficiary thereof) and the nature of the
transactions or obligations proposed to be supported thereby (including
whether such Letter of Credit is to be a commercial letter of credit or a
standby letter of credit). Upon receipt of any such notice, the
Administrative Agent shall advise the relevant Issuing Bank of the contents
thereof.
(ii) On each day during the period commencing with the issuance by an
Issuing Bank of any Letter of Credit and until such Letter of Credit shall
have expired or been terminated, the Commitment of each Lender under the
relevant Facility shall be deemed to be utilized for all purposes of this
Agreement in an amount equal to such Xxxxxx's Revolving Credit Commitment
Percentage under such Facility of the then undrawn face amount of such
Letter of Credit. Each Revolving Credit Lender (other than the relevant
Issuing Bank) agrees that, upon the issuance of any Letter of Credit
hereunder, it shall automatically acquire a participation in such Issuing
Bank's liability under such Letter of Credit in
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an amount equal to such Lender's Revolving Credit Commitment Percentage
under the relevant Facility of such liability, and each Revolving Credit
Lender (other than such Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and shall be unconditionally obligated to such Issuing Bank to
pay and discharge when due, its Revolving Credit Commitment Percentage
under such Facility of such Issuing Bank's liability under such Letter
of Credit.
(iii) Upon receipt from the beneficiary of any Letter of Credit of
any demand for payment under such Letter of Credit, the relevant Issuing
Bank shall promptly notify the relevant Borrower (through the
Administrative Agent) of the amount to be paid by such Issuing Bank as a
result of such demand and the date on which payment is to be made by such
Issuing Bank to such beneficiary in respect of such demand.
Notwithstanding the identity of the account party of any Letter of Credit,
the relevant Borrower hereby unconditionally agrees to pay and reimburse
the Administrative Agent for account of such Issuing Bank for the amount of
each demand for payment under such Letter of Credit that is in substantial
compliance with the provisions of such Letter of Credit at or prior to the
date on which payment is to be made by such Issuing Bank to the beneficiary
thereunder, without presentment, demand, protest or other formalities of
any kind.
(iv) Forthwith upon its receipt of a notice referred to in
paragraph (iii) of this Section 2.03(b), the relevant Borrower shall advise
the Administrative Agent whether or not such Borrower intends to borrow
hereunder to finance its obligation to reimburse the relevant Issuing Bank
for the amount of the related demand for payment and, if it does, submit a
notice of such borrowing as provided in Section 4.05 hereof.
(v) Each Revolving Credit Lender (other than the relevant Issuing
Bank) shall pay to the Administrative Agent for account of such Issuing
Bank at an account specified by the Administrative Agent in Dollars and in
immediately available funds, the amount of such Xxxxxx's Revolving Credit
Commitment Percentage under the relevant Facility of any payment under a
Letter of Credit under such Facility upon notice by such Issuing Bank
(through the Administrative Agent) to such Revolving Credit Lender
requesting such payment and specifying such amount. Each such Revolving
Credit Lender's obligation to make such payment to the
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Administrative Agent for account of such Issuing Bank under this paragraph
(v), and such Issuing Bank's right to receive the same, shall be absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the failure of any other Revolving Credit
Lender to make its payment under this paragraph (v), the financial
condition of the relevant Borrower (or any other account party or Obligor),
the existence of any Default or the termination of any of the Commitments.
Each such payment to an Issuing Bank shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Revolving Credit
Lender shall default in its obligation to make any such payment to the
Administrative Agent for account of such Issuing Bank, for so long as such
default shall continue the Administrative Agent may at the request of such
Issuing Bank withhold from any payments received by the Administrative
Agent under this Agreement or any Note for account of such Revolving Credit
Lender the amount so in default and, to the extent so withheld, pay the
same to such Issuing Bank in satisfaction of such defaulted obligation.
(vi) Upon the making of each payment by a Revolving Credit Lender to
an Issuing Bank pursuant to paragraph (v) above in respect of any Letter of
Credit, such Lender shall, automatically and without any further action on
the part of the Administrative Agent, such Issuing Bank or such Lender,
acquire (x) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to such Issuing Bank by the relevant
Borrower hereunder and under the Letter of Credit Documents relating to
such Letter of Credit and (y) a participation in a percentage equal to such
Xxxxxx's Revolving Credit Commitment Percentage under the relevant Facility
in any interest or other amounts payable by the relevant Borrower hereunder
and under such Letter of Credit Documents in respect of such Reimbursement
Obligation (other than the commissions, charges, costs and expenses payable
to such Issuing Bank pursuant to paragraph (vii) of this Section 2.03(b)).
Upon receipt by an Issuing Bank from or for account of the relevant
Borrower of any payment in respect of any Reimbursement Obligation or any
such interest or other amount (including by way of setoff or application of
proceeds of any collateral security) such Issuing Bank shall promptly pay
to the Administrative Agent for account of each Revolving Credit Lender
entitled thereto, such Revolving Credit Xxxxxx's Revolving Credit
Commitment Percentage under the relevant Facility of such payment, each
such payment by such Issuing Bank to be made in the same money and funds in
which
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received by such Issuing Bank. In the event any payment received by
an Issuing Bank and so paid to the relevant Revolving Credit Lenders
hereunder is rescinded or must otherwise be returned by such Issuing Bank,
each Revolving Credit Lender shall, upon the request of such Issuing Bank
(through the Administrative Agent), repay to such Issuing Bank (through the
Administrative Agent) the amount of such payment paid to such Lender, with
interest at the rate specified in paragraph (x) of this Section 2.03(b).
(vii) Each Revolving Credit Borrower shall pay to the Administrative
Agent for account of each Revolving Credit Lender (ratably in accordance
with their respective Revolving Credit Commitment Percentages under the
relevant Revolving Credit Commitment Percentage) a letter of credit fee in
respect of each Letter of Credit issued under such Borrower's Revolving
Credit Facility in an amount equal to the Applicable Letter of Credit
Percentage per annum of the daily average undrawn face amount of such
Letter of Credit for the period from and including the date of issuance of
such Letter of Credit (x) in the case of a Letter of Credit that expires in
accordance with its terms, to and including such expiration date and (y) in
the case of a Letter of Credit that is drawn in full or is otherwise
terminated other than on the stated expiration date of such Letter of
Credit, to but excluding the date such Letter of Credit is drawn in full or
is terminated (such fee to be non-refundable, to be paid in arrears on each
Quarterly Date and on the Commitment Termination Date for the relevant
Facility and to be calculated for any day after giving effect to any
payments made under such Letter of Credit on such day). In addition, each
Revolving Credit Borrower shall pay to the Administrative Agent for account
of each Issuing Bank a fronting fee in respect of each Letter of Credit
issued by such Issuing Bank under such Borrower's Revolving Credit Facility
in an amount equal to 0.25% per annum of the daily average undrawn face
amount of such Letter of Credit for the period from and including the date
of issuance of such Letter of Credit (x) in the case of a Letter of Credit
that expires in accordance with its terms, to and including such expiration
date and (y) in the case of a Letter of Credit that is drawn in full or is
otherwise terminated other than on the stated expiration date of such
Letter of Credit, to but excluding the date such Letter of Credit is drawn
in full or is terminated (such fee to be non-refundable, to be paid in
arrears on each Quarterly Date and on the Commitment Termination Date under
the relevant Facility and to be calculated for any day after giving
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effect to any payments made under such Letter of Credit on such day) plus
all commissions, charges, costs and expenses in the amounts customarily
charged by such Issuing Bank from time to time in like circumstances with
respect to the issuance of each Letter of Credit and drawings and other
transactions relating thereto.
(viii) Promptly following the end of each calendar month, each
Issuing Bank shall deliver (through the Administrative Agent) to each
Revolving Credit Lender and each Revolving Credit Borrower a notice
describing the aggregate amount of all Letters of Credit outstanding under
each Revolving Credit Facility at the end of such month. Upon the request
of any Revolving Credit Lender from time to time, each Issuing Bank shall
deliver any other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(ix) The issuance by an Issuing Bank of a Letter of Credit shall, in
addition to the conditions precedent set forth in Section 7 hereof, be
subject to the conditions precedent that (x) such Letter of Credit shall be
in such form, contain such terms and support such transactions as shall be
satisfactory to such Issuing Bank consistent with its then current
practices and procedures with respect to letters of credit of the same type
and (y) the relevant Revolving Credit Borrower shall have executed and
delivered such applications, agreements and other instruments relating to
such Letter of Credit as such Issuing Bank shall have reasonably requested
consistent with its then current practices and procedures with respect to
letters of credit of the same type, PROVIDED that in the event of any
conflict between any such application, agreement or other instrument and
the provisions of this Agreement or any Security Document, the provisions
of this Agreement and the Security Documents shall control.
(x) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (v) or (vi) of this
Section 2.03(b) on the due date therefor, such Lender shall pay interest to
the relevant Issuing Bank (through the Administrative Agent) on such amount
from and including such due date to but excluding the date such payment is
made at a rate per annum equal to the Federal Funds Rate, PROVIDED that if
such Lender shall fail to make such payment to such Issuing Bank within
three Business Days of such due date, then, retroactively to the due date,
such
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Lender shall be obligated to pay interest on such amount at the
Post-Default Rate.
(xi) The issuance by an Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (x) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (y) each Lender
under the relevant Revolving Credit Facility shall have consented thereto.
Each Revolving Credit Borrower hereby indemnifies and holds harmless each
Revolving Credit Lender and the Administrative Agent from and against any and
all claims and damages, losses, liabilities, costs or expenses that such Lender
or the Administrative Agent may incur (or that may be claimed against such
Lender or the Administrative Agent by any Person whatsoever) by reason of or in
connection with the execution and delivery or transfer of or payment or refusal
to pay by an Issuing Bank under any Letter of Credit issued by such Issuing Bank
under such Borrower's Revolving Credit Facility; PROVIDED that such Borrower
shall not be required to indemnify any Lender or the Administrative Agent for
any claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, caused by (x) the willful misconduct or gross negligence of
such Issuing Bank in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) in the case of
such Issuing Bank, such Xxxxxx's failure to pay under any Letter of Credit after
the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is intended
to limit the other obligations of any Borrower, any Lender or the Administrative
Agent under this Agreement.
2.04 CHANGES OF COMMITMENTS.
(a) EXPIRATION OF TENDER OFFER COMMITMENTS. The aggregate amount of
the Tender Offer Tranche A Term Loan Commitments, the Tender Offer CALI
Revolving Credit Commitments and the Tender Offer CasTech Revolving Credit
Commitments shall be automatically reduced to zero on the Tender Offer Loan
Commitment Termination Date. Any portion of the Tender Offer Tranche B Term
Loan Commitments not used on the Initial Borrowing
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Date shall be automatically reduced to zero on the close of business on the
Initial Borrowing Date.
(b) EXPIRATION OF POST-MERGER COMMITMENTS.
(i) Any portion of the Post-Merger Tranche A Term Loan Commitments
and the Post-Merger Tranche B Term Loan Commitments not utilized on the
Merger Date shall terminate automatically at the close of business on the
Merger Date.
(ii) The Post-Merger Revolving Credit Commitments shall be
automatically reduced to zero on the Post-Merger Revolving Credit
Commitment Termination Date.
(c) REDUCTIONS OF COMMITMENTS. Each Borrower shall have the right at
any time or from time to time (i) to reduce the aggregate unused amount of the
Commitments under its Facilities (for which purpose use of such Commitments
shall be deemed to include (in the case of a Revolving Credit Facility) the
aggregate amount of Swingline Loans and Letter of Credit Liabilities under such
Facility) and (ii) in the case of any Revolving Credit Borrower, so long as no
Loans (including all Swingline Loans) or Letter of Credit Liabilities are
outstanding under its Revolving Credit Facility, to terminate the Commitments
thereunder; PROVIDED that (x) the relevant Borrower shall give notice of each
such termination or reduction as provided in Section 4.05 hereof and (y) each
partial reduction shall be in an aggregate amount at least equal to $5,000,000
(or a larger multiple of $1,000,000).
(d) GENERAL. The Commitments under any Facility once terminated or
reduced may not be reinstated.
2.05 CERTAIN FEES.
(a) The Revolving Credit Borrowers shall pay to the Administrative
Agent for account of each Lender a fee (a "REVOLVING CREDIT NON-UTILIZATION
FEE") on the daily average unused amount of such Lender's Commitment under the
relevant Revolving Credit Facility (for which purpose (i) the Reserved
Commitments shall be deemed not to constitute usage of such Lender's Post-Merger
Revolving Credit Commitment and (ii) the aggregate amount of any Letter of
Credit Liabilities under such Facility shall be deemed to be a pro rata (based
on the Commitments thereunder) use of each Lender's Commitment thereunder), for
the period from and including the Signing Date (in the case of the Tender Offer
Revolving Credit Facilities) or the Merger Date (in the case of the Post-Merger
Revolving Credit
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Facilities) to but not including the earlier of the date such Commitment is
terminated and the relevant Commitment Termination Date, at a rate per annum
equal to the Applicable Non-Utilization Fee Percentage in effect from time to
time.
(b) The Term Loan Borrower shall pay to the Administrative Agent for
account of each Lender a fee (a "TERM LOAN NON-UTILIZATION FEE" and,
collectively with the Revolving Credit Non-Utilization Fee, the "NON-UTILIZATION
FEES") on the daily average unused amount of such Xxxxxx's Tender Offer
Tranche A Term Loan Commitment and on the daily unused amount of such Xxxxxx's
Tender Offer Tranche B Term Loan Commitment for the period from and including
the Signing Date to but not including the earlier of the date such Commitment is
terminated and the Tender Offer Loan Commitment Termination Date, at a rate per
annum equal to the Applicable Non-Utilization Fee Percentage in effect from time
to time.
(c) Accrued Non-Utilization Fee shall be payable on each Quarterly
Date and on the earlier of the date the relevant Commitments are terminated and
the relevant Commitment Termination Date.
(d) If any Tender Offer Loans are outstanding on the date that is 90
days after the Tender Offer Closing Date, the Parent shall, on such date (or, if
such day is not a Business Day, on the next succeeding Business Day), pay to the
Administrative Agent for account of each Lender a fee in an amount equal to
0.25% of the aggregate outstanding Post-Merger Commitments of such Lender.
2.06 LENDING OFFICES. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.07 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06 hereof) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender. The amounts
payable by each Borrower at any time hereunder and under the Notes to each
Lender shall be a separate and independent debt and each Lender shall be
entitled to protect and enforce its rights arising out
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of this Agreement and the Notes, and it shall not be necessary for any other
Lender or the Administrative Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.08 NOTES.
(a) PROMISSORY NOTES. The Loans made by each Lender under each
Facility shall be evidenced by a single promissory note of each relevant
Borrower substantially in the form of the Exhibit hereto identified below
opposite the name of such Facility:
Facility Exhibit
-------- -------
Tender Offer Tranche A Term Loan Facility Exhibit A-1
Tender Offer Tranche B Term Loan Facility Exhibit A-2
Tender Offer CALI Revolving Credit Facility Exhibit A-3
Tender Offer CasTech Revolving Credit Facility Exhibit A-4
Post-Merger Tranche A Term Loan Facility Exhibit A-5
Post-Merger Tranche B Term Loan Facility Exhibit A-6
Post-Merger Revolving Credit Facility Exhibit A-7
Swingline Facility (Tender Offer) Exhibit A-8
Swingline Facility (Post-Merger) Exhibit A-9
Each Tender Offer Note shall be dated the Tender Offer Closing Date, payable to
such Lender in a principal amount equal to the amount of its Commitment under
the relevant Tender Offer Facility as in effect on the Tender Offer Closing Date
and otherwise duly completed. The Swingline Note evidencing Tender Offer
Swingline Loans made by NatWest shall be dated the Tender Offer Closing Date,
payable to NatWest in a principal amount equal to $5,000,000 and otherwise duly
completed. Each Post-Merger Note shall be dated the Merger Date, payable to
such Lender in a principal amount equal to the amount of its Commitment under
the relevant Post-Merger Facility as in effect on the Merger Date and otherwise
duly completed. The Swingline Note evidencing the Post-Merger Swingline Loans
made by NatWest shall be dated the Merger Date, payable to NatWest in a
principal amount equal to $5,000,000 and otherwise duly completed.
(b) RECORDATION OF LOANS, ETC. The date, amount, Type, interest rate
and duration of Interest Period (if applicable) of each Loan under each Facility
made by each Lender to the relevant Borrower, and each payment made on account
of the principal thereof, shall be recorded by such Lender on its books and,
prior to any transfer of the Note evidencing the Loans under such Facility held
by it, endorsed by such Lender on the schedule
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attached to such Note or any continuation thereof; PROVIDED that the failure
of such Lender to make any such recordation or endorsement shall not affect
the obligations of the relevant Borrower to make a payment when due of any
amount owing hereunder or under such Note in respect of such Loans.
(c) SUBSTITUTION, EXCHANGE, SUBDIVISION, ETC. No Lender shall be
entitled to have its Notes substituted or exchanged for any reason, or
subdivided for promissory notes of lesser denominations, except in connection
with a permitted assignment of all or any portion of such Lender's relevant
Commitments, Loans and Notes pursuant to Section 12.06 hereof (and, if requested
by any Lender, each Borrower agrees to so exchange any Note).
2.09 OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF LOANS.
Subject to Section 4.04 hereof, each Borrower shall have the right to prepay
Loans, to Convert Loans of one Type under one Post-Merger Facility into Loans of
another Type under the same Facility or to Continue Loans of one Type under one
Post-Merger Facility as Loans of the same Type under the same Facility, at any
time or from time to time, PROVIDED that:
(a) such Borrower shall give the Administrative Agent (or, in the
case of Swingline Loans, shall give NatWest) notice of each such
prepayment, Conversion or Continuation as provided in Section 4.05 hereof
(and, upon the date specified in any such notice of prepayment, the amount
to be prepaid shall become due and payable hereunder);
(b) any such prepayment or Conversion of a Eurodollar Loan other than
on the last day of an Interest Period therefor shall be accompanied by, and
subject to, the payment of any amount payable under Section 5.05 hereof in
respect of such prepayment or Conversion;
(c) prepayments of Loans under any Post-Merger Term Loan Facility
shall be applied FIRST in the direct order of maturity of the installments
of such Loans falling due within one year from the date of prepayment and
THEN ratably to the remaining installments of such Loans; and
(d) any Conversion or Continuation of Eurodollar Loans shall be
subject to the provisions of Section 2.01(f) hereof.
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Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10 hereof, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of the Borrowers to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case may be, as Base
Rate Loans.
2.10 MANDATORY PREPAYMENTS AND REDUCTIONS OF COMMITMENTS.
(a) BORROWING BASE. CALI shall from time to time prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below) under the Tender Offer CALI Revolving Credit Facility, and
the Post-Merger Revolving Credit Borrowers shall from time to time prepay the
Loans (and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below) under the Post-Merger Revolving Credit Facility, in each
case in such amounts as shall be necessary so that at all times the aggregate
outstanding amount of the Loans (including all Swingline Loans) under the
relevant Revolving Credit Facility together with the outstanding Letter of
Credit Liabilities under such Facility shall not exceed the Borrowing Base for
such Facility, such amount to be applied, FIRST, to Loans outstanding under such
Facility and, SECOND, as cover for Letter of Credit Liabilities outstanding
under such Facility.
(b) SALE OF ASSETS. Without limiting the obligation of the Borrowers
to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to
any Disposition not otherwise permitted hereunder, no later than five Business
Days after each Recapture Date the Parent shall deliver to the Administrative
Agent a certificate of a Responsible Officer of the Parent in form and detail
reasonably satisfactory to the Administrative Agent of the amount of Net
Available Proceeds for the Recapture Period ending on such Recapture Date and,
on the date five Business Days after such Recapture Date the Borrowers shall
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in paragraph (k) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 100% (or, from and after
the General Trigger Date, 75%) of the Net Available Proceeds of Dispositions for
such Recapture Period, such prepayment and reduction to be effected in each case
in the manner, order and to the extent specified in paragraph (j) below.
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Notwithstanding the foregoing, the Borrowers shall not be required to
make a prepayment pursuant to this paragraph (b) with respect to:
(1) the Net Available Proceeds of any Disposition of CasTech Shares
effected at any time prior to the Merger Date, PROVIDED that: (I) except
as otherwise agreed by the Majority Lenders, such Net Available Proceeds
shall be deposited in, and thereafter maintained in, the Commonwealth
Collateral Account (and such Net Available Proceeds shall be permitted to
be invested solely in Permitted Investments with maturities not in excess
of 30 days) and (II) the Borrowers may, in their sole discretion, elect to
apply such Net Available Proceeds to the prepayment of the Loans pursuant
to Section 2.09 hereof; and
(2) the Net Available Proceeds of any other Disposition in the event
that the Borrowers advise the Administrative Agent at the time the Net
Available Proceeds from such Disposition are received that they intend to
reinvest such Net Available Proceeds in replacement assets pursuant to a
transaction permitted hereunder, so long as:
(x) such Net Available Proceeds are held by the Administrative
Agent in one of the Collateral Accounts pending such reinvestment, in
which event the Administrative Agent need not release such Net
Available Proceeds except upon presentation of evidence satisfactory
to it that such Net Available Proceeds are to be so reinvested in
compliance with the provisions of this Agreement,
(y) the Net Available Proceeds from any Disposition are in fact
so reinvested within twelve months of such Disposition (it being
understood that, in the event Net Available Proceeds from more than
one Disposition are paid into one of the Collateral Accounts as
provided in clause (x) above, such Net Available Proceeds shall be
deemed to be released in the same order in which such Dispositions
occurred and, accordingly, any such Net Available Proceeds so held for
more than twelve months shall be forthwith applied to the prepayment
of Loans and reductions of Commitments as provided above), and
(z) the aggregate amount of Net Available Proceeds (together
with investment earnings thereon) so held at any time by the
Administrative Agent pending
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reinvestment as contemplated by this sentence shall not at any time
exceed $10,000,000 or such greater amount as the Majority Lenders
may otherwise agree.
As contemplated by Section 4.01 of each Pledge and Security Agreement, nothing
in this Section 2.10(b) shall be deemed to obligate the Administrative Agent to
release any of such proceeds from any Collateral Account to the Borrowers upon
the occurrence and during the continuance of any Event of Default.
(c) CASUALTY EVENTS. Upon the date twelve months following the
receipt by the Parent or any of its Subsidiaries (the date of such receipt being
the "RECEIPT DATE") of the proceeds of insurance, condemnation award or other
compensation in respect of any Casualty Event affecting any Property of the
Parent or any of its Subsidiaries, the Parent shall cause the Borrowers to
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in paragraph (k) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount, if any, equal to 100% (or, from and
after the General Trigger Date, 75%) of the Net Available Proceeds of such
Casualty Event to the extent that all or substantially all of such Net Available
Proceeds have not theretofore been applied to the repair or replacement of such
Property, such prepayment and reduction to be effected in each case in the
manner and to the extent specified in paragraph (j) below. Notwithstanding the
foregoing:
(i) the Parent shall cause such prepayment and reduction to occur
(x) upon the date 30 days after the Receipt Date (if the Parent or such
Subsidiary shall not theretofore have determined to repair or replace the
Property affected by such Casualty Event) and (y) upon the date 90 days
after the Receipt Date (if the Parent or such Subsidiary shall not
theretofore have commenced the repair or replacement of such Property); and
(ii) in the event that a Casualty Event shall occur with respect to
Property covered by any Mortgage, the Parent shall cause the Borrowers to
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in paragraph (k) below), and the Commitments shall be subject to
automatic reduction, on the dates, and in the amounts of the required
prepayments, specified in such Mortgage.
Nothing in this paragraph (c) shall be deemed to limit any obligation of the
Parent or any of its Subsidiaries pursuant to
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any of the Security Documents to remit to a collateral or similar account
(including, without limitation, the Collateral Accounts) maintained by the
Administrative Agent pursuant to any of the Security Documents the proceeds
of insurance, condemnation award or other compensation received in respect of
any Casualty Event.
(d) DEBT ISSUANCE. Upon any Debt Issuance occurring prior to the
General Trigger Date, the Parent shall cause the Borrowers to prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below), and the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 100% of the Net Available Proceeds
thereof, such prepayment and reduction to be effected in each case in the manner
and to the extent specified in paragraph (j) below.
(e) EQUITY ISSUANCE. Upon any Equity Issuance occurring prior to the
General Trigger Date, the Parent shall cause the Borrowers to prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below), and the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 75% of the Net Available Proceeds
thereof, such prepayment and reduction to be effected in each case in the manner
and to the extent specified in paragraph (j) below.
(f) EXCESS CASH FLOW. If any Tranche B Term Loan has been
outstanding during any day of any fiscal year of the Parent ending after the
date hereof, then, not later than the date 45 days after the end of each such
fiscal year of the Parent (commencing with the fiscal year ending December 31,
1997), the Parent shall cause the Borrowers to prepay the Loans (and/or provide
cover for Letter of Credit Liabilities as specified in paragraph (k) below), and
the Commitments shall be subject to automatic reduction, in an aggregate amount
equal to 75% (or, after at least 50% of the aggregate unpaid principal amount of
the Term Loans outstanding on the Merger Date shall have been repaid, 50%) of
Excess Cash Flow for such fiscal year, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in
paragraph (j) below; PROVIDED that, from and after the Excess Cash Flow Trigger
Date, no further prepayments (or requirement to provide cover for Letter of
Credit Liabilities) or Commitment reductions shall be required under this
paragraph (f).
(g) CHANGE OF CONTROL. If any Change of Control shall occur, then,
concurrently with such Change of Control, the
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Borrowers shall prepay the Loans in full and the Commitments shall be
automatically reduced to zero.
(h) RECEIVABLES SALES. Without limiting the obligation of the
Borrowers to obtain the consent of the Majority Lenders pursuant to Section 9.05
hereof to any Receivables Sale not otherwise permitted hereunder, upon any
Receivables Sale the Parent shall cause the Borrowers to prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below) in an aggregate amount equal to 100% of the Net Available
Proceeds thereof (as to each such Receivables Sale, the "PREPAYMENT AMOUNT").
Each such prepayment pursuant to this Section 2.10(h) shall be applied FIRST to
the prepayment of outstanding Swingline Loans, SECOND to the prepayment of
Revolving Credit Loans, THIRD to provide cover for Letter of Credit Liabilities
as specified in paragraph (k) below and FOURTH to the prepayment of outstanding
Term Loans.
(i) SENIOR SUBORDINATED DEBT. Upon the issuance of Senior
Subordinated Debt, the Term Loan Borrowers shall prepay the Tranche B Term Loans
(if any) in full and the Tranche B Term Loan Commitments shall be automatically
reduced to zero.
(j) APPLICATION. Prepayments and reductions of Commitments described
in the above paragraphs of this Section 2.10 (other than in paragraphs (a), (h)
and (i) above) shall be effected as follows:
(i) if such prepayment and reduction is to be effected prior to
the Merger Date:
(x) if the Net Available Proceeds to be applied are Net
Available Proceeds of Dispositions, Debt Issuances or Equity Issuances
by, or of Casualty Events relating to Property of, CasTech or any of
its Subsidiaries, then the Tender Offer CasTech Revolving Credit
Commitments shall be automatically reduced in an amount equal the
amount of the prepayment specified in such paragraphs (and to the
extent that, after giving effect to such reduction, the aggregate
principal amount of Loans, together with the aggregate amount of all
Letter of Credit Liabilities, under the Tender Offer CasTech Revolving
Credit Facility would exceed the Commitments under such Facility,
CasTech shall, first, prepay Loans and, second, provide cover for
Letter of Credit Liabilities as specified in paragraph (k) below,
under such Facility in an aggregate amount equal to such excess); and
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(y) in all other cases:
(I) FIRST, the amount of the prepayment specified in such
paragraphs shall be applied to the Tender Offer Term Loans then
outstanding (pro rata between each Tender Offer Term Loan Facility)
and, after giving effect to such prepayment, any remaining unutilized
Tender Offer Term Loan Commitments shall be automatically reduced in
an amount equal to the balance of the required prepayment (pro rata
between each Tender Offer Term Loan Facility); and
(II) SECOND, the Tender Offer CALI Revolving Credit Commitments
shall be automatically reduced in an amount equal to any excess over
the amount referred to in the foregoing clause (I) (and to the extent
that, after giving effect to such reduction, the aggregate principal
amount of Loans (including all Swingline Loans), together with the
aggregate amount of all Letter of Credit Liabilities, under the Tender
Offer CALI Revolving Credit Facility would exceed the Commitments
under such Facility, CALI shall, first, prepay the Swingline Loans,
second, prepay the other Loans and, third, provide cover for Letter of
Credit Liabilities as specified in paragraph (k) below, under such
Facility in an aggregate amount equal to such excess); and
(ii) if such prepayment and reduction is to be effected on or after
the Merger Date:
(x) FIRST, the amount of the prepayment specified in such
paragraphs shall be applied to the Post-Merger Term Loans then
outstanding (pro rata between each Post-Merger Term Loan Facility and,
as to each Post-Merger Term Loan Facility, to the installments thereof
in inverse order to maturity); and
(y) SECOND, the Post-Merger Revolving Credit Commitments shall
be automatically reduced in an amount equal to any excess over the
amount referred to in the foregoing clause (x) (and to the extent
that, after giving effect to such reduction, the sum of (I) the
aggregate principal amount of Loans (including all Swingline Loans),
together with the aggregate amount of all Letter of Credit
Liabilities, under the Post-Merger Revolving Credit Facility PLUS (II)
the aggregate amount of the Reserved Commitments would exceed the
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Commitments under such Facility, the Revolving Credit Borrowers shall,
first, prepay Swingline Loans, second, prepay the other Loans, and,
third, provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below, under such Facility in an aggregate amount equal
to such excess).
(k) COVER FOR LETTER OF CREDIT LIABILITIES. In the event that a
Revolving Credit Borrower shall be required pursuant to this Section 2.10 to
provide cover for Letter of Credit Liabilities under its Revolving Credit
Facility, such Borrower shall effect the same by paying to the Administrative
Agent immediately available funds in an amount equal to the required amount,
which funds shall be retained by the Administrative Agent in the relevant
Collateral Account (as provided therein as collateral security in the first
instance for such Letter of Credit Liabilities) until such time as the Letters
of Credit issued under such Revolving Credit Facility shall have been terminated
and all of the Letter of Credit Liabilities thereunder paid in full.
(l) CERTAIN MATTERS RELATING TO THE POST-MERGER FACILITIES. Each
prepayment and reduction of Commitments pursuant to Sections 2.10(i) and
2.10(j)(i) hereof that occurs prior to the Merger Date shall also be applied to
the Post-Merger Facilities (including, without limitation, the Commitments
thereunder) as if such prepayment and reduction occurred on the Merger Date.
2.11 RESERVED COMMITMENTS, ETC.
(a) If the Borrowers shall at any time prepay Post-Merger Revolving
Credit Loans with Net Available Proceeds of any Receivables Sale in accordance
with Section 2.10(h) hereof, then an amount of Post-Merger Revolving Credit
Commitments equal to the amount of such prepayment shall be reserved and shall
not, except as provided in paragraph (b) below, be available for borrowings or
reborrowings of Post-Merger Revolving Credit Loans under Section 2.01(d) hereof.
The Post-Merger Revolving Credit Commitments at any time so reserved are herein
called the "RESERVED COMMITMENTS"; the Post-Merger Revolving Credit Commitments
not constituting Reserved Commitments are herein called the "AVAILABLE
COMMITMENTS".
(b) The Parent may from time to time deliver to the Administrative
Agent a request (an "AVAILABILITY INCREASE REQUEST") to reduce the aggregate
amount of the Reserved Commitments (and, thereby, to increase the aggregate
amount of
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the Available Commitments). Each Availability Increase Request shall state
the aggregate amount of the proposed reduction in the Reserved Commitments
and the date on which such reduction is to become effective (which date shall
be a Business Day no earlier than the date three Business Days following the
delivery of such Availability Increase Request), and shall be accompanied by
a certificate of a Responsible Officer of the Parent in form and detail
satisfactory to the Administrative Agent demonstrating that the amount of the
Reserved Commitments (after giving effect to the reduction thereof requested
in such Availability Increase Request) shall be not less than the aggregate
amount then outstanding under all Permitted Receivable Financings. On the
effective date specified in each Availability Increase Request, the amount of
the Reserved Commitments shall be reduced automatically by the amount
specified in such Availability Increase Request.
(c) Notwithstanding anything in this Agreement to the contrary,
reductions of the Post-Merger Revolving Credit Commitments hereunder (including,
without limitation, reductions under Sections 2.04(c) and 2.10 hereof) shall be
applied FIRST to the Reserved Commitments and THEN to the Available Commitments.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS.
(a) TENDER OFFER LOANS.
(i) TRANCHE A TERM LOANS. XXXX hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding
principal amount of such Xxxxxx's Tender Offer Tranche A Term Loans, and
each such Loan shall mature, on the Tender Offer Loan Maturity Date.
(ii) TRANCHE B TERM LOANS. XXXX hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding
principal amount of such Xxxxxx's Tender Offer Tranche B Term Loans, and
each such Loan shall mature, on the Tender Offer Loan Maturity Date.
(iii) CALI REVOLVING CREDIT FACILITY. XXXX hereby promises to pay to
the Administrative Agent for account of each Lender the entire outstanding
principal amount of such Xxxxxx's Tender Offer CALI Revolving Credit Loans,
and each
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such Loan shall mature, on the Tender Offer Loan Maturity Date.
(iv) CASTECH REVOLVING CREDIT FACILITY. CasTech hereby promises to
pay to the Administrative Agent for account of each Lender the entire
outstanding principal amount of such Xxxxxx's Tender Offer CasTech
Revolving Credit Loans, and each such Loan shall mature, on the Tender
Offer Loan Maturity Date.
(v) SWINGLINE LOANS. XXXX hereby promises to pay to the
Administrative Agent for account of NatWest (or each other Lender holding a
Tender Offer Swingline Loan) the entire outstanding principal amount of the
Tender Offer Swingline Loans, and each such Loan shall mature, on the
Tender Offer Loan Maturity Date.
(b) POST-MERGER LOANS.
(i) TRANCHE A TERM LOANS. CasTech hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding
principal amount of such Xxxxxx's Post-Merger Tranche A Term Loans in 20
installments payable on the Principal Payment Dates as follows:
Principal Payment Date
Falling on or Nearest To Amount of Installment
------------------------- ---------------------
December 1, 1996 $1,250,000.00
March 1, 1997 $1,250,000.00
June 1, 1997 $1,250,000.00
September 1, 1997 $1,250,000.00
December 1, 1997 $2,500,000.00
March 1, 1998 $2,500,000.00
June 1, 1998 $2,500,000.00
September 1, 1998 $2,500,000.00
December 1, 1998 $5,000,000.00
March 1, 1999 $5,000,000.00
June 1, 1999 $5,000,000.00
September 1, 1999 $5,000,000.00
December 1, 1999 $7,500,000.00
March 1, 2000 $7,500,000.00
June 1, 2000 $7,500,000.00
September 1, 2000 $7,500,000.00
December 1, 2000 $8,750,000.00
March 1, 2001 $8,750,000.00
June 1, 2001 $8,750,000.00
September 1, 2001 $8,750,000.00
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If CasTech does not borrow the full amount of the aggregate Post-Merger
Tranche A Term Loan Commitments on the Merger Date, the shortfall shall be
applied to reduce the foregoing installments ratably.
(ii) TRANCHE B TERM LOANS. CasTech hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding
principal amount of such Xxxxxx's Post-Merger Tranche B Term Loans in 28
installments payable on the Principal Payment Dates as follows:
Principal Payment Date
Falling on or Nearest To Amount of Installment
------------------------ ---------------------
December 1, 1996 $ 250,000.00
March 1, 1997 $ 250,000.00
June 1, 1997 $ 250,000.00
September 1, 1997 $ 250,000.00
December 1, 1997 $ 250,000.00
March 1, 1998 $ 250,000.00
June 1, 1998 $ 250,000.00
September 1, 1998 $ 250,000.00
December 1, 1998 $ 250,000.00
March 1, 1999 $ 250,000.00
June 1, 1999 $ 250,000.00
September 1, 1999 $ 250,000.00
December 1, 1999 $ 250,000.00
March 1, 2000 $ 250,000.00
June 1, 2000 $ 250,000.00
September 1, 2000 $ 250,000.00
December 1, 2000 $ 250,000.00
March 1, 2001 $ 250,000.00
June 1, 2001 $ 250,000.00
September 1, 2001 $ 250,000.00
December 1, 2001 $ 8,750,000.00
March 1, 2002 $ 8,750,000.00
June 1, 2002 $ 8,750,000.00
September 1, 2002 $ 8,750,000.00
December 1, 2002 $15,000,000.00
March 1, 2003 $15,000,000.00
June 1, 2003 $15,000,000.00
September 1, 2003 $15,000,000.00
If CasTech does not borrow the full amount of the aggregate Post-Merger
Tranche B Term Loan Commitments on the Merger Date, the shortfall shall be
applied to reduce the foregoing installments ratably.
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(iii) REVOLVING CREDIT FACILITY. Each Revolving Credit Borrower
hereby jointly and severally promises to pay to the Administrative Agent
for account of each Lender the entire outstanding principal amount of such
Xxxxxx's Post-Merger Revolving Credit Loans, and each such Loan shall
mature, on the Post-Merger Revolving Credit Commitment Termination Date.
(iv) SWINGLINE LOANS. The Post-Merger Revolving Credit Borrowers
hereby jointly and severally promise to pay to the Administrative Agent for
account of NatWest (or each other Lender holding a Post-Merger Swingline
Loan) the entire outstanding principal amount of the Post-Merger Swingline
Loans, and each such Loan shall mature, on the Post-Merger Revolving Credit
Commitment Termination Date.
3.02 INTEREST. Each Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan (including each Swingline Loan) made by such Lender to such
Borrower for the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full, at the following rates per
annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) PLUS the Applicable Margin and
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period PLUS the Applicable Margin.
Notwithstanding the foregoing, each Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate:
(x) on any principal of any Loan made by such Lender to such
Borrower, on any Reimbursement Obligation of such Borrower held by such
Lender and on any other amount payable by such Borrower hereunder or under
the Notes held by such Lender to or for account of such Lender, that shall
not be paid in full when due (whether at stated maturity, by acceleration,
by mandatory prepayment or otherwise), for the period from and including
the due date thereof to but excluding the date the same is paid in full;
and
(y) during any Specified Event of Default Period.
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Accrued interest on each Loan shall be payable (i) in the case of a Base Rate
Loan and a Swingline Loan, quarterly on the Quarterly Dates, (ii) in the case of
a Eurodollar Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, at three-month intervals following
the first day of such Interest Period, and (iii) in the case of any Loan (other
than a Swingline Loan), upon the payment or prepayment thereof or the Conversion
of such Loan to a Loan of another Type (but only on the principal amount so
paid, prepaid or Converted), except that interest payable at the Post-Default
Rate shall be payable from time to time on demand. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Administrative Agent shall give notice thereof to the Lenders to which such
interest is payable and to the Borrowers.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Borrowers under this Agreement and the Notes, and, except to the extent
otherwise provided therein, all payments to be made by the Obligors under any
other Credit Document, shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Administrative Agent at an
account specified by the Administrative Agent, not later than 1:00 p.m. New York
time on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) Any Lender for whose account any such payment by a Borrower is to
be made may (but shall not be obligated to) debit the amount of any such payment
that is not made by such time to any ordinary deposit account of such Borrower
with such Lender (with notice to such Borrower and the Administrative Agent),
PROVIDED that such Xxxxxx's failure to give such notice shall not affect the
validity thereof.
(c) Each Borrower shall, at the time of making each payment under
this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by such
CREDIT AGREEMENT
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Borrower hereunder to which such payment is to be applied (and in the event
that such Borrower fails to so specify, or if an Event of Default has
occurred and is continuing, the Administrative Agent may distribute such
payment to the Lenders for application in such manner as it or the Majority
Lenders, subject to Section 4.02 hereof, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of
Section 2.03(b)(v) hereof, each payment received by the Administrative Agent
under this Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available funds,
for account of such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (a) each borrowing of Loans under a particular Facility from the
Lenders under Section 2.01 hereof shall be made from the relevant Lenders, each
payment of Non-Utilization Fee under Section 2.05 hereof in respect of
Commitments under a particular Facility shall be made for account of the
relevant Lenders, and each termination or reduction of the amount of the
Commitments under a particular Facility under Section 2.04 hereof shall be
applied to the respective Commitments under such Facility of the relevant
Lenders, pro rata according to the amounts of their respective Commitments under
such Facility; (b) except as otherwise provided in Section 5.04 hereof,
Eurodollar Loans under any Facility having the same Interest Period shall be
allocated pro rata among the relevant Lenders according to the amounts of their
respective Commitments under such Facility (in the case of the making of Loans)
or their respective Loans under such Facility (in the case of Conversions and
Continuations of Loans); (c) each payment or prepayment of principal of Loans
under a particular Facility by a Borrower shall be made for account of the
relevant Lenders pro rata in accordance with the respective unpaid principal
amounts of the Loans under such Facility held by them; and (d) each payment of
interest on Loans under a particular Facility by the relevant Borrower shall be
made for account of the relevant Lenders pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective Lenders.
Notwithstanding the foregoing, borrowings, payments and prepayments of Swingline
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Loans shall be made without regard to the foregoing provisions of this
Section 4.02.
4.03 COMPUTATIONS. Interest on Loans, Non-Utilization Fees and
letter of credit fees shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but, except as otherwise provided
in Section 2.03(b)(vii) hereof excluding the last day) occurring in the period
for which payable, and interest on Base Rate Loans and Reimbursement Obligations
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans and Reimbursement Obligations shall be
computed on the basis of a year of 360 days and actual days elapsed.
4.04 MINIMUM AMOUNTS. Except for mandatory prepayments made pursuant
to Section 2.10 hereof and Conversions or prepayments made pursuant to
Section 5.04 hereof, each borrowing, Conversion and partial prepayment of
principal of Loans (other than Swingline Loans) shall be in an aggregate amount
at least equal to $5,000,000 or a larger multiple of $1,000,000 (borrowings,
Conversions or prepayments of or into Loans of different Types or, in the case
of Eurodollar Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period), PROVIDED that
the aggregate principal amount of Eurodollar Loans having the same Interest
Period shall be in an amount at least equal to $5,000,000 or a larger multiple
of $1,000,000 and, if any Eurodollar Loans would otherwise be in a lesser
principal amount for any period, such Loans shall be borrowed as Base Rate Loans
during such period. Each borrowing of Swingline Loans shall be in an aggregate
amount at least equal to $100,000 or in multiples of $50,000 in excess thereof
and each partial prepayment of Swingline Loans shall be in an aggregate amount
at least equal to $50,000 or in multiples of $50,000 in excess thereof.
4.05 CERTAIN NOTICES. Notices by a Borrower to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans, of Types of Loans
and of the duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Administrative Agent not later than 12:00 noon
New York time on the number of Business Days
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prior to the date of the relevant termination, reduction, borrowing,
Conversion, Continuation or prepayment or the first day of such Interest
Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment
of Swingline Loans same day
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans
(other than Swingline Loans) 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Facility under which the Commitments are to be terminated or reduced. Each such
notice of borrowing, Conversion, Continuation or optional prepayment shall
specify the Facility of Loans to be borrowed, Converted, Continued or prepaid
and the amount (subject to Section 4.04 hereof) and Type of each Loan to be
borrowed, Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event that a
Borrower fails to select the Type of Loan, or the duration of any Interest
Period for any Eurodollar Loan, within the time period and otherwise as provided
in this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have been notified by a Lender or a Borrower (the
"PAYOR") prior to the date on which the
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Payor is to make payment to the Administrative Agent of (in the case of a
Lender) the proceeds of a Loan required to be made by such Lender hereunder
or (in the case of a Borrower) a payment to the Administrative Agent for
account of one or more of the Lenders hereunder (such payment being herein
called the "REQUIRED PAYMENT"), which notice shall be effective upon receipt,
that the Payor does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall
not be required to), make the amount thereof available to the intended
recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such
payment shall, on demand, repay to the Administrative Agent the amount so
made available together with interest thereon in respect of each day during
the period commencing on the date (the "ADVANCE DATE") such amount was so
made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to the Federal Funds
Rate for such day and, if such recipient(s) shall fail promptly to make such
payment, the Administrative Agent shall be entitled to recover such amount,
on demand, from the Payor, together with interest as aforesaid, PROVIDED that
if neither the recipient(s) nor the Payor shall return the Required Payment
to the Administrative Agent within three Business Days of the Advance Date,
then, retroactively to the Advance Date, the Payor and the recipient(s) shall
each be obligated to pay interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be made
by a Borrower to the Lenders, such Borrower and the recipient(s) shall each
be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment at the Post-Default Rate (without duplication of
the obligation of the Parent under Section 3.02 hereof to pay interest on
the Required Payment at the Post-Default Rate), it being understood that
the return by the recipient(s) of the Required Payment to the
Administrative Agent shall not limit such obligation of such Borrower under
said Section 3.02 to pay interest at the Post-Default Rate in respect of
the Required Payment and
(ii) if the Required Payment shall represent proceeds of a Loan to
be made by the Lenders to a Borrower, the Payor and such Borrower shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to whichever of the rates
specified in Section 3.02 hereof is applicable to the Type
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of such Loan, it being understood that the return by a Borrower of the
Required Payment to the Administrative Agent shall not limit any claim
such Borrower may have against the Payor in respect of such Required
Payment.
4.07 SHARING OF PAYMENTS, ETC.
(a) Each Obligor agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it for the credit
or account of such Obligor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness are then due to such Obligor), in which case it shall promptly
notify such Obligor and the Administrative Agent thereof, PROVIDED that such
Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan under any Facility or Letter of Credit
Liability owing to it or payment of any other amount under this Agreement or any
other Credit Document through the exercise of any right of set-off, banker's
lien or counterclaim or similar right or otherwise (other than from the
Administrative Agent as provided herein), and, as a result of such payment, such
Lender shall have received a greater percentage of the principal of or interest
on the Loans under such Facility or Letter of Credit Liabilities or such other
amounts then due hereunder or thereunder by such Obligor to such Lender than the
percentage received by any other Lender, it shall promptly purchase from such
other Lenders participations in (or, if and to the extent specified by such
Lender, direct interests in) the Loans under such Facility or Letter of Credit
Liabilities or such other amounts, respectively, owing to such other Lenders (or
in interest due thereon, as the case may be) in such amounts, and make such
other adjustments from time to time as shall be equitable, to the end that all
the Lenders shall share the benefit of such excess payment (net of any expenses
that may be incurred by such Lender in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid principal of and/or interest on
the Loans under such Facility or Letter of Credit Liabilities or such other
amounts, respectively, owing to each of the Lenders. To such end all the
Lenders shall make
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appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Obligor agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01 ADDITIONAL COSTS.
(a) Each Borrower shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to compensate such
Lender for any costs that such Lender determines are attributable to its making
or maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation, resulting from any
Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Loans) to any tax, duty or other charge in respect of such
Loans or its Notes or changes the basis of taxation of any amounts payable
to such Lender under this Agreement or its Notes in respect of any of such
Loans (excluding changes in the rate of tax on the overall net income of
such Lender or of such Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office); or
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(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender (including,
without limitation, the Commitments of such Xxxxxx xxxxxxxxx); or
(iii) imposes any other condition affecting this Agreement or its
Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from a Borrower under this Section 5.01(a),
such Borrower may, by notice to such Lender through the Parent (with a copy to
the Administrative Agent), suspend the obligation of such Lender thereafter to
make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar
Loans, until the Regulatory Change giving rise to such request ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable), PROVIDED that such suspension shall not affect the right of such
Lender to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), each Borrower shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender (or, without duplication, the bank
holding company of which such Lender is a subsidiary) for any costs that it
determines are attributable to the maintenance by such Lender (or any Applicable
Lending Office or such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) of any
court or governmental or monetary authority (i) following any Regulatory Change
or (ii) implementing any risk-based capital guideline or other requirement
(whether or not having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government or governmental
or supervisory authority implementing at the national level the Basle Accord, of
capital in respect of its Commitments or Loans (such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Lender (or any Applicable Lending Office or such bank
holding company) to a level below
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that which such Lender (or any Applicable Lending Office or such bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request).
(c) Each Lender shall notify the Borrowers of any event occurring
after the date hereof entitling such Lender to compensation under paragraph (a)
or (b) of this Section 5.01 as promptly as practicable, but in any event within
180 days, after such Lender obtains actual knowledge thereof; PROVIDED that
(i) if any Lender fails to give such notice within 180 days after it obtains
actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 180 days prior to the date that such
Lender does give such notice and (ii) each Lender will designate a different
Applicable Lending Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, except that such Lender shall have no obligation
to designate an Applicable Lending Office located in the United States of
America. Each Lender will furnish to the relevant Borrower a certificate
setting forth in reasonable detail the basis and amount of each request by such
Lender for compensation under paragraph (a) or (b) of this Section 5.01.
Determinations and allocations by any Lender for purposes of this Section 5.01
of the effect of any Regulatory Change pursuant to paragraph (a) of this
Section 5.01, or of the effect of capital maintained pursuant to paragraph (b)
of this Section 5.01, on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in respect of Loans,
and of the amounts required to compensate such Lender under this Section 5.01,
shall be conclusive, PROVIDED that such determinations and allocations are made
on a reasonable basis and consistent with the methodology generally applied by
such Lender.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar Base
Rate for any Interest Period:
(a) the Administrative Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the
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relevant maturities for purposes of determining rates of interest for
Eurodollar Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the Majority
Revolving Credit Lenders, if the related Loans are Tranche A Term Loans,
the Majority Tranche A Term Lenders, or if the related Loans are Tranche B
Term Loans, the Majority Tranche B Term Lenders, determine, which
determination shall be conclusive, and notify the Administrative Agent that
the relevant rates of interest referred to in the definition of "Eurodollar
Base Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans for such Interest Period is to be determined
are not likely adequately to cover the cost to such Lenders of making or
maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give each Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and each
Borrower shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof.
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
each Borrower thereof (with a copy to the Administrative Agent) and such
Xxxxxx's obligation to make or Continue, or to Convert Loans of any other Type
into, Eurodollar Loans shall be suspended until such time as such Lender may
again make and maintain Eurodollar Loans (in which case the provisions of
Section 5.04 hereof shall be applicable).
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03 hereof,
such Xxxxxx's Eurodollar Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion resulting from
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a circumstance described in Section 5.03 hereof, on such earlier date as such
Lender may specify to the Borrowers with a copy to the Administrative Agent)
and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.01 or 5.03 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Xxxxxx's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrowers with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Xxxxxx's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Xxxxxx agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans under the same
Facility made by other Lenders are outstanding, such Xxxxxx's Base Rate Loans
under such Facility shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Base Rate and
Eurodollar Loans under such Facility are allocated among the Lenders ratably (as
to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments under such Facility.
5.05 COMPENSATION. Each Borrower shall pay to the Administrative
Agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense (excluding lost profit) that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Eurodollar Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10 hereof) on
a date other than the last day of the Interest Period for such Loan; or
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(b) any failure by such Borrower for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 7 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest (but excluding the
Applicable Margin) for such Loan provided for herein over (ii) the amount of
interest that otherwise would have accrued on such principal amount at a rate
per annum equal to the interest component of the amount such Lender would have
bid in the London interbank market for Dollar deposits of leading banks in
amounts comparable to such principal amount and with maturities comparable to
such period (as reasonably determined by such Lender).
5.06 ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. Without
limiting the obligations of the Borrowers under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrowers shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent),
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such additional amounts as shall be sufficient to compensate such Lender or
Lenders (through the Administrative Agent) for such increased costs or
reductions in amount. A statement as to such increased costs or reductions
in amount incurred by any such Lender or Lenders, submitted by such Lender or
Lenders to the Borrowers shall be conclusive in the absence of manifest error
as to the amount thereof.
5.07 U.S. TAXES.
(a) Each Borrower agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, PROVIDED
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such Xxxxxx is,
on the date hereof (or on the date it becomes a Lender hereunder as
provided in Section 12.06(b) hereof) and on the date of any change in the
Applicable Lending Office of such Lender, either entitled to submit a
Form 1001 (relating to such Lender and entitling it to a complete exemption
from withholding on all interest to be received by it hereunder in respect
of the Loans) or Form 4224 (relating to all interest to be received by such
Lender hereunder in respect of the Loans),
(ii) to any U.S. Taxes to the extent imposed by reason of the
failure by such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or connections with the United States of
America of such non-U.S. Person (including the filing of Form 1001 or 4224,
as appropriate) if such compliance is required by statute or regulation of
the United States of America as a precondition to reduction of or relief or
exemption from such U.S. Taxes, or
(iii) to any tax assessment or other governmental charge which is
payable otherwise than by withholding or deduction from payments due such
non-U.S. Person hereunder.
For the purposes of this Section 5.07(a), (A) "U.S. PERSON" shall mean a
citizen, national or resident of the United States of
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America, a corporation, partnership or other entity created or organized in
or under any laws of the United States of America or any State thereof, or
any estate or trust that is subject to U.S. Federal income taxation
regardless of the source of its income, (B) "U.S. TAXES" shall mean any
present or future tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof or
therein, (C) "FORM 1001" shall mean Form 1001 (Ownership, Exemption, or
Reduced Rate Certificate) of the Department of the Treasury of the United
States of America and (D) "FORM 4224" shall mean Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of the Treasury of
the United States of America (or in relation to either such Form such
successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a
claim to which such Form relates). Each of the Forms referred to in the
foregoing clauses (C) and (D) shall include such successor and related forms
as may from time to time be adopted by the relevant taxing authorities of the
United States of America to document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the
Borrowers shall deliver to the Administrative Agent for delivery to such
non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
5.08 REPLACEMENT OF LENDERS. If any Lender defaults in its
obligations to make Loans pursuant to Section 2.01 hereof or to fund
unreimbursed drawings under Section 2.03 hereof or requests compensation
pursuant to Section 5.01 or 5.06 hereof (any such Lender so defaulting or so
requesting such compensation being herein called a "REQUESTING LENDER"), the
Parent, upon three Business Days notice, may require that such Requesting Lender
transfer and assign all of its right, title and interest under this Agreement
and such Requesting Xxxxxx's Notes, if any, to any bank or other financial
institution (a "PROPOSED LENDER") identified by the Parent that is satisfactory
to the Administrative Agent and the Issuing Banks (and, upon request of the
Parent, the Administrative Agent agrees to use reasonable efforts to assist the
Parent in identifying Proposed Lenders for this purpose) (a) if such Proposed
Xxxxxx agrees to assume all of the obligations of such Requesting Lender
hereunder, and to purchase all of such Requesting Xxxxxx's Loans hereunder for
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consideration equal to the aggregate outstanding principal amount of such
Requesting Lender's Loans, together with interest thereon to the date of such
purchase, and satisfactory arrangements are made for payment to such Requesting
Lender of all other amounts payable hereunder to such Requesting Lender on or
prior to the date of such transfer (including any fees accrued hereunder and all
amounts payable under Section 5 hereof, including all amounts payable under
Section 5.05 hereof as if all of such Requesting Xxxxxx's Loans were being
prepaid in full on such date) and (b) if such Requesting Lender has requested
compensation pursuant to Section 5.01 or 5.06 hereof, such Proposed Xxxxxx's
aggregate requested compensation, if any, pursuant to said Section 5.01 or 5.06
with respect to such Requesting Lender's Loans is lower than that of the
Requesting Lender. Subject to the provisions of Section 12.06(b) hereof, such
Proposed Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Obligors hereunder the
agreements of the Borrowers contained in Sections 5 and 12.03 hereof (without
duplication of any payments made to such Requesting Lender by the Parent or the
Proposed Lender) shall survive for the benefit of such Requesting Lender under
this Section 5.08 with respect to the time prior to such replacement.
Section 6. GUARANTEE.
6.01 THE GUARANTEE.
(a) The CALI Guarantors hereby jointly and severally guarantee to
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Notes held by each Lender of, CALI and all other amounts
from time to time owing to the Lenders or the Administrative Agent by XXXX under
this Agreement and under the Notes and by any Obligor under any of the other
Credit Documents, and all obligations of the Parent or any of its Subsidiaries
to any Lender in respect of any Interest Rate Protection Agreement, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "CALI GUARANTEED OBLIGATIONS"). The CALI Guarantors
hereby further jointly and severally agree that if CALI shall fail to pay in
full when due (whether at stated maturity, by acceleration or otherwise) any of
the CALI Guaranteed Obligations, the CALI Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the CALI Guaranteed Obligations, the
same will
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be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal. It is understood and agreed that neither CasTech nor Xxxxxx will, at
any time prior to the Merger Date, be CALI Guarantors or have any obligations
under this Section 6.01(a).
(b) The CasTech Guarantors hereby jointly and severally guarantee to
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Notes held by each Lender of, CasTech and all other
amounts from time to time owing to the Lenders or the Administrative Agent by
CasTech under this Agreement and under the Notes and by CasTech or any of its
Subsidiaries under any of the other Credit Documents, and all obligations of
CasTech or any of its Subsidiaries to any Lender in respect of any Interest Rate
Protection Agreement, in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the "CASTECH GUARANTEED
OBLIGATIONS"). The CasTech Guarantors hereby further jointly and severally
agree that if CasTech shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the CasTech Guaranteed
Obligations, the CasTech Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the CasTech Guaranteed Obligations, the same will
be promptly paid in full when due (whether at extended maturity, by acceleration
or otherwise) in accordance with the terms of such extension or renewal.
(c) Each Borrower under the Post-Merger Revolving Credit Facility
hereby guarantees to each Post-Merger Revolving Credit Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by such Lenders
to, and the Notes held by each Lender of, the other Borrowers under such
Facility and all other amounts from time to time owing to the Lenders or the
Administrative Agent by such Borrowers under such Facility under this Agreement
and under the Notes and by any Obligor under any of the other Credit Documents,
and all obligations of such Borrowers or any of their respective Subsidiaries to
any Lender in respect of any Interest Rate Protection Agreement, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "JOINT OBLIGATIONS" and, collectively with the CALI
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Guaranteed Obligations and the CasTech Guaranteed Obligations, the "GUARANTEED
OBLIGATIONS"). The Borrowers under the Post-Merger Revolving Credit Facility
hereby further jointly and severally agree that if any other Borrower under such
Facility shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Joint Obligations, the other Borrowers
under such Facility will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Joint Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
6.02 OBLIGATIONS UNCONDITIONAL.
(a) The obligations of the CALI Guarantors under Section 6.01(a)
hereof are absolute and unconditional, joint and several, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
CALI under this Agreement, the Notes or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the CALI Guaranteed Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 6.02(a) that the obligations of the CALI Guarantors hereunder shall be
absolute and unconditional, joint and several, under any and all circumstances.
(b) The obligations of the CasTech Guarantors under Section 6.01(b)
hereof are absolute and unconditional, joint and several, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
CasTech under this Agreement, the Notes or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the CasTech Guaranteed Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section 6.02(b) that the obligations of the CasTech Guarantors hereunder
shall be absolute and unconditional, joint and several, under any and all
circumstances.
(c) The obligations of the Post-Merger Revolving Credit Borrowers
under Section 6.01(c) hereof are absolute and
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unconditional, joint and several, irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the other
Borrowers under such Facility under this Agreement, the Notes or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Joint Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 6.02(c) that the obligations
of each Borrower under the Post-Merger Revolving Credit Facility shall be
absolute and unconditional, joint and several, under any and all
circumstances.
(d) Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Guarantors hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or the Notes or any other agreement or instrument referred to herein or
therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any
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requirement that the Administrative Agent or any Lender exhaust any right,
power or remedy or proceed against any Borrower under this Agreement or the
Notes or any other agreement or instrument referred to herein or therein, or
against any other Person under any other guarantee of, or security for, any
of the Guaranteed Obligations.
6.03 REINSTATEMENT. The obligations of the Guarantors under this
Section 6 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the relevant Borrower in respect of the
relevant Guaranteed Obligations is rescinded or must be otherwise restored by
any holder of any of such Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Guarantors
jointly and severally agree that they will indemnify the Administrative Agent
and each Lender on demand for all reasonable costs and expenses (including,
without limitation, fees of counsel) incurred by the Administrative Agent or
such Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
6.04 SUBROGATION. The Guarantors hereby jointly and severally agree
that until the payment and satisfaction in full of all Guaranteed Obligations
and the expiration and termination of the Commitments of the Lenders under this
Agreement they shall not exercise any right or remedy arising by reason of any
performance by them of their guarantee in Section 6.01 hereof, whether by
subrogation or otherwise, against the Borrowers or any other guarantor of any of
the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
6.05 REMEDIES. The Guarantors jointly and severally agree that, as
between the Guarantors and the Lenders, the obligations of the relevant Borrower
under this Agreement and the Notes may be declared to be forthwith due and
payable as provided in Section 10 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 10)
for purposes of Section 6.01 hereof notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against such Borrower and that, in the event
of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by such Borrower)
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shall forthwith become due and payable by the Guarantors for purposes of said
Section 6.01.
6.06 CONTINUING GUARANTEE. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.07 RIGHTS OF CONTRIBUTION.
(a) Each Relevant Obligor hereby agrees, as between themselves, that
if any Relevant Obligor shall become an Excess Funding Guarantor (as defined
below) by reason of the payment by such Relevant Obligor of any Guaranteed
Obligations, each other Relevant Obligor shall, on demand of such Excess Funding
Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Relevant Obligor's Pro Rata Share (as defined
below and determined, for this purpose, without reference to the Properties,
debts and liabilities of such Excess Funding Guarantor) of the Excess Payment
(as defined in paragraph (b) below) in respect of such Guaranteed Obligations.
The payment obligation of a Relevant Obligor to any Excess Funding Guarantor
under this Section 6.07 shall be subordinate and subject in right of payment to
the prior payment in full of the obligations of such Relevant Obligor under the
other provisions of this Section 6 and such Excess Funding Guarantor shall not
exercise any right or remedy with respect to such excess until payment and
satisfaction in full of all of such obligations.
(b) For purposes of this Section 6.07: (i) "RELEVANT OBLIGOR" shall
mean (x) prior to the Merger Date, CALI and each of the Subsidiary Guarantors
and (y) from and after the Merger Date, each Borrower and each of the Subsidiary
Guarantors; (ii) "EXCESS FUNDING GUARANTOR" shall mean, in respect of any
Guaranteed Obligations, a Relevant Obligor that has paid an amount in excess of
its Pro Rata Share of such Guaranteed Obligations; (iii) "EXCESS PAYMENT" shall
mean, in respect of any Guaranteed Obligations, the amount paid by an Excess
Funding Guarantor in excess of its Pro Rata Share of such Guaranteed
Obligations; (iv) "PRO RATA SHARE" shall mean, for any Relevant Obligor, the
ratio (expressed as a percentage) of the amount of such Relevant Obligor's Net
Assets to the amount of the aggregate Net Assets of all of the Relevant
Obligors, in each case determined as of (A)(x) with respect to any Relevant
Obligor that is a party hereto on the Initial Borrowing Date, the Initial
Borrowing Date or (y) with respect to any other Relevant Obligor, the date such
Relevant Obligor becomes a Relevant Obligor hereunder or (B) the date any demand
is made hereunder in respect
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of the Guaranteed Obligations, whichever date results in the higher amount
(the "DETERMINATION DATE"); and (v) "NET ASSETS" of any Relevant Obligor
shall mean the amount by which the aggregate present fair saleable value of
all assets of such Relevant Obligor (excluding any shares of stock of any
other Relevant Obligor) exceeds the amount of all the debts and liabilities
of such Relevant Obligor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding (x) the obligations of such Relevant
Obligor under this Section 6, assuming the full utilization of permitted
borrowings under this Agreement and after giving effect, on a PRO FORMA basis
(but without duplication), to all such obligations of such Relevant Obligor
to be incurred or assumed as of the Merger Date and (y) the obligations of
such Relevant Obligor in respect of its guarantee of the Senior Subordinated
Debt, assuming all such obligations are in existence as of the date hereof
and after giving effect to all such obligations which shall become effective
as of the Merger Date).
6.08 LIMITATION ON GUARANTEE OBLIGATIONS. Notwithstanding any other
provision of this Agreement to the contrary, in any action or proceeding
involving any state corporate law or any state or Federal bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Relevant Obligor hereunder would otherwise
be held or determined to be void, invalid or unenforceable on account of the
amount of its liability under this Section 6, then notwithstanding any other
provision of this Agreement to the contrary, the amount of such liability shall,
without any further action by such Relevant Obligor or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
Section 7. CONDITIONS PRECEDENT.
7.01 INITIAL TENDER OFFER TERM LOAN. The obligation of each Tender
Offer Term Loan Lender to make its initial Tender Offer Term Loan hereunder on
the Initial Borrowing Date is subject to the prior or simultaneous satisfaction
of the following conditions: (1) such extension of credit shall be made on or
before the Tender Offer Loan Commitment Termination Date and (2) the
Administrative Agent shall have received the following documents (with
sufficient copies for each Lender) or other evidence, each of which shall be
satisfactory to the
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Administrative Agent (and to the extent specified below, to the Lenders) in
form and substance:
(a) CORPORATE DOCUMENTS. The following documents, each certified as
indicated below:
(i) for each Obligor, a copy of the charter, as amended and in
effect, of such Obligor certified as of a date reasonably close to the
Initial Borrowing Date by the appropriate Secretary of State and a
certificate from such Secretary of State dated as of a date reasonably
close to the Initial Borrowing Date as to the good standing of and
charter documents filed by such Obligor;
(ii) for each Obligor, a certificate of the Secretary or an
Assistant Secretary of such Obligor, dated the Initial Borrowing Date
and certifying (A) that attached thereto is a true and complete copy
of the by-laws of such Obligor as amended and in effect at all times
from the date on which the resolutions referred to in clause (B) were
adopted to and including the date of such certificate, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors of such Obligor authorizing the
execution, delivery and performance of such of the Basic Documents to
which such Obligor is or is intended to be a party and the extensions
of credit hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
charter of such Obligor has not been amended since the date of the
certification thereto furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer of
such Obligor executing such of the Basic Documents to which such
Obligor is intended to be a party and each other document to be
delivered by such Obligor from time to time in connection therewith
(and the Administrative Agent and each Lender may conclusively rely on
such certificate until it receives notice in writing from such
Obligor); and
(iii) for each such Obligor, a certificate of another officer of
such Obligor, dated the Initial Borrowing Date, as to the incumbency
and specimen signature of the Secretary or Assistant Secretary, as the
case may be, of such Obligor.
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(b) OFFICER'S CERTIFICATE. (i) A certificate of a senior officer of
the Parent, dated the Initial Borrowing Date, to the effect set forth in
clauses (a), (b) and (c) of Section 7.05 hereof (other than with respect to
CasTech and its Subsidiaries) and (ii) a certificate of a senior officer of
CasTech, dated the Initial Borrowing Date, to the effect set forth in
clauses (a) and (b) of Section 7.05 hereof (with respect to CasTech and its
Subsidiaries).
(c) NOTES. The Tender Offer Term Loan Notes, duly completed and
executed for each Tender Offer Term Loan Lender.
(d) OPINIONS OF SPECIAL NEW YORK COUNSEL TO THE OBLIGORS. Opinions,
dated the Initial Borrowing Date, of Xxxxxxxx & Xxxxxxxx, special New York
counsel to certain of the Obligors, and such other counsel satisfactory to
the Administrative Agent, covering all of the matters set forth in Exhibit
G hereto to be covered by such counsel on the Tender Offer Closing Date
(and each Obligor hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(e) OPINIONS OF LOCAL COUNSEL. Opinions, dated the Initial Borrowing
Date, of local counsel in the respective states in which the Properties
covered by the Mortgages referred to in clause (m) below are located,
substantially in the form of Exhibit H hereto, and in each case covering
such others matters as the Administrative Agent or any Lender may
reasonably request (and each Obligor hereby instructs such counsel to
deliver such opinions to the Lenders and the Administrative Agent).
(f) OPINION OF SPECIAL NEW YORK COUNSEL TO NATWEST. An opinion,
dated the Initial Borrowing Date, of Milbank, Tweed, Xxxxxx & XxXxxx,
special New York counsel to NatWest, substantially in the form of Exhibit
I-1 hereto (and NatWest hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(g) TENDER OFFER.
(i) Evidence that at least a majority of the issued and
outstanding CasTech Shares shall have been validly tendered to New CALC at
a price per share not to exceed $20.50, have not been withdrawn and are
available for purchase, all in accordance with the terms and conditions of
the Offer to Purchase;
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(ii) a certificate of a senior officer of the Parent, and a
certificate of a senior officer of New CALC, each dated the Initial
Borrowing Date, certifying that the principal conditions precedent to the
purchase of the CasTech Shares contained in the Offer to Purchase have been
satisfied and not waived except with the consent of the Majority Lenders
and that the Offer to Purchase has been duly authorized and delivered by
New CALC and is in full force and effect as of said date;
(iii) the irrevocable written consent of each of New CALC and the
Parent to the Merger (along with resolutions of the board of directors of
each of New CALC and the Parent, certified by the Secretary or an Assistant
Secretary of such Person as being true and complete); and
(iv) if less than 90% of the issued and outstanding CasTech Shares
are tendered, a copy of the Information Statement which shall in all
respects be ready for filing with the Commission.
(h) TENDER OFFER DOCUMENTS AND GOVERNMENTAL APPROVALS.
(i) Certified copies of all Tender Offer Documents (including the
Offer to Purchase), and all Additional Tender Offer Documents (which
Additional Tender Offer Documents shall be in form and substance acceptable
to the Majority Lenders); and
(ii) evidence that all necessary governmental and material third
party consents and approvals in connection with the Acquisition have been
obtained and remain in effect and all applicable waiting periods
(including, without limitation, under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended) have expired without any action being
taken by any competent authority that restricts, prevents or imposes
materially adverse conditions upon the making or consummation of the
Acquisition.
(i) MERGER AGREEMENT. A certificate of a senior officer of CasTech,
dated the Initial Borrowing Date, and a certificate of a senior officer of
the Parent, that the Merger Agreement has been duly authorized, executed
and delivered by the parties thereto and is in full force and effect and
that there has been no amendment to the Merger Agreement except with the
consent of the Majority Lenders.
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(j) OTHER ACQUISITION DOCUMENTS. Certified copies of all other
Acquisition Documents each of which shall be in form and substance
satisfactory to the Majority Lenders.
(k) COMMONWEALTH PLEDGE AND SECURITY AGREEMENT. The Commonwealth
Pledge and Security Agreement, duly executed and delivered by the Parent,
CALI, the Subsidiary Guarantors and the Administrative Agent, together with
certificate(s) representing all of the issued and outstanding Capital Stock
of CALI, New CALC (prior to giving effect to the Merger) and the other
Subsidiary Guarantors accompanied by undated stock powers duly executed in
blank. In addition, such Obligors shall have taken such other action
(including, without limitation, delivering to the Administrative Agent, for
filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements) as the Administrative Agent shall
have requested in order to perfect the security interests created pursuant
to the Commonwealth Pledge and Security Agreement.
(l) CASTECH PLEDGE AND SECURITY AGREEMENT. The CasTech Pledge and
Security Agreement, duly executed and delivered by CasTech, Xxxxxx and the
Administrative Agent, together with certificate(s) representing all of the
issued and outstanding Capital Stock of Barmet accompanied by undated stock
powers duly executed in blank. In addition, CasTech and Barmet shall have
taken such other action (including, without limitation, delivering to the
Administrative Agent, for filing, appropriately completed and duly executed
copies of Uniform Commercial Code financing statements) as the
Administrative Agent shall have requested in order to perfect the security
interests created pursuant to the CasTech Pledge and Security Agreement.
(m) MORTGAGES AND TITLE INSURANCE. To the extent requested by the
Administrative Agent and except as covered by Section 9.18 hereof, the
following documents each of which shall be executed (and, where
appropriate, acknowledged) by Persons satisfactory to the Administrative
Agent:
(i) Mortgages covering the real Properties identified in
Schedules XV and XVI hereto, in each case duly executed and delivered
by the Parent, CALI, CasTech or Barmet, as the case may be, in
recordable form (in such number of copies as the Administrative Agent
shall have reasonably requested);
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(ii) mortgagee policies of title insurance on forms of and issued
by one or more title companies satisfactory to the Administrative
Agent (the "TITLE COMPANIES"), insuring the validity and priority of
the Liens created under such Mortgages for and in amounts satisfactory
to the Administrative Agent, subject only to such exceptions as are
satisfactory to the Administrative Agent and, to the extent necessary
under applicable law, for filing in the appropriate county land
offices, Uniform Commercial Code financing statements covering
fixtures, in each case appropriately completed and duly executed;
(iii) as-built surveys, re-dated of recent date or updated by
physical inspection (including aerial inspection) of recent date of
each of the facilities to be covered by such Mortgages, showing such
matters as may be reasonably required by the Administrative Agent,
which surveys shall be in form and content acceptable to the
Administrative Agent, and certified to the Administrative Agent and to
each Lender and the Title Companies, and shall have been prepared by a
registered surveyor reasonably acceptable to the Administrative Agent;
and
(iv) copies of permanent and unconditional certificates of
occupancy for each fee owned real Property covered by a Mortgage (or,
if it is not the practice to issue certificates of occupancy in the
jurisdiction in which the facilities to be covered by such Mortgages
are located, then such other evidence reasonably satisfactory to
Administrative Agent) permitting the fully functioning operation and
occupancy of each such facility and of such other permits necessary
for the use and operation of each such facility issued by the
respective governmental authorities having jurisdiction over each such
facility.
In addition, the Parent shall have paid to the Title Companies all expenses
and premiums of the Title Companies in connection with the issuance of such
policies and in addition shall have paid to the Title Companies an amount
equal to the recording and stamp taxes payable in connection with recording
such Mortgages in the appropriate county land offices.
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(n) NEW CALC NOTE. The New CALC Note, duly executed and delivered by
New CALC.
(o) UCC, TAX LIEN, JUDGMENT AND LITIGATION SEARCHES. Reports
satisfactory to the Lenders listing the results of Uniform Commercial Code
filing, tax lien, judgment and litigation searches prepared by one or more
firms satisfactory to the Administrative Agent with respect to the Obligors
in each of the jurisdictions deemed relevant by the Administrative Agent.
(p) INSURANCE. Certificates of insurance evidencing the existence of
insurance covering risks and issued by such insurers and on such terms as
shall be satisfactory to the Majority Lenders in their reasonable
discretion and evidencing the designation of the Administrative Agent as
the loss payee or additional named insured, as the case may be, thereunder
to the extent required by Section 9.04 hereof, such certificates to be in
such form and contain such information as is specified in said
Section 9.04. In addition, the Parent shall have delivered a certificate
of a Responsible Officer setting forth the insurance obtained by it in
accordance with the requirements of said Section 9.04 and stating that such
insurance is in full force and effect and that all premiums then due and
payable thereon have been paid.
(q) ENVIRONMENTAL MATTERS. A certificate from a senior officer of
CasTech to the effect that CasTech has verified the material accuracy of
all factual statements and other information provided by CasTech and its
employees to ENVIRON that are contained in the Update of Environmental
Assessment dated September 17, 1996 from ENVIRON, except for any
inaccuracies or omissions that would not result in a material adverse
effect on the business, properties, assets, operations, conditions
(financial or otherwise), or prospects of CasTech and its Subsidiaries
(taken as a whole).
(r) SOLVENCY ANALYSIS. A certificate from the chief financial
officer of the Parent that, as of the Initial Borrowing Date and after
giving effect to the Merger, the borrowings contemplated hereunder in the
full amount of the Commitments, the issuance of the full amount of the
Senior Subordinated Debt, and the other transactions contemplated by the
Basic Documents, no Obligor, on a stand-alone or consolidated basis, (i)
will be insolvent or will be rendered insolvent by the Indebtedness
incurred in
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connection therewith, (ii) will be left with unreasonably small
capital with which to conduct its business operations as heretofore
conducted or (iii) will have incurred debts beyond its ability to pay such
debts as they mature. The Administrative Agent shall have also received a
certificate from the chief financial officer of the Parent certifying that
the financial projections and underlying assumptions contained in such
analyses were at the time made prepared in good faith and on the Initial
Borrowing Date and such officer has no reason to believe that such
projections and assumptions are materially inaccurate, and in each case
such analyses were accurately computed.
(s) REPAYMENT OF EXISTING INDEBTEDNESS. Evidence that the principal
of and interest on, and all other amounts owing in respect of, the
Indebtedness of the Parent, CALI, CasTech and Barmet (including, without
limitation, any contingent or other amounts payable in respect of letters
of credit) indicated on Parts A and B, respectively, of Schedules V and VI
hereto that is to be repaid on the Initial Borrowing Date shall have been
(or shall be simultaneously) paid in full, that any commitments to extend
credit under the agreements or instruments relating to such Indebtedness
shall have been canceled or terminated and that all Guarantees in respect
of, and all Liens securing, any such Indebtedness shall have been released
(or arrangements for such release satisfactory to the Administrative Agent
shall have been made); in addition, the Administrative Agent shall have
received from any Person holding any Lien securing any such Indebtedness,
such Uniform Commercial Code termination statements, mortgage releases and
other instruments, in each case in proper form for recording, as the
Administrative Agent shall have requested to release and terminate of
record the Liens securing such Indebtedness (or arrangements for such
release and termination satisfactory to the Administrative Agent shall have
been made).
(t) OTHER DOCUMENTS. Such other documents as the Administrative
Agent or any Lender or special New York counsel to NatWest may reasonably
request.
The obligation of any Lender to make its initial extension of credit hereunder
is also subject to the payment by the Obligors of such fees as the Obligors
shall have agreed to pay or deliver to any Lender or the Administrative Agent in
connection herewith, including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Xxxxxx & XxXxxx, special New York counsel to
NatWest, in connection with the negotiation, preparation,
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execution and delivery of this Agreement and the Notes and the other Basic
Documents and the extensions of credit hereunder (to the extent that
statements for such fees and expenses have been delivered to the Obligors).
7.02 INITIAL REVOLVING CREDIT LOANS. The obligation of each
Revolving Credit Lender to make its initial Tender Offer Revolving Credit Loan
hereunder is subject to the conditions precedent that the Administrative Agent
shall have received the following documents (with sufficient copies for each
Revolving Credit Lender), each of which shall be satisfactory to the
Administrative Agent in form and substance:
(a) TENDER OFFER TERM LOANS. Evidence that Tender Offer Term Loans
shall have been borrowed.
(b) NOTES. The Tender Offer Revolving Credit Notes, duly completed
and executed for each Revolving Credit Lender.
(c) BORROWING BASE CERTIFICATE. A Borrowing Base Certificate dated
as of August 31, 1996, duly executed.
7.03 INITIAL POST-MERGER TERM LOANS. The obligation of each Term
Loan Lender to make its initial Post-Merger Term Loan hereunder on the Merger
Date is subject to the conditions precedent that: (i) such extension of credit
shall be made on the Merger Date; and (ii) the Administrative Agent shall have
received the following documents (with sufficient copies for each Lender), each
of which shall be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance:
(a) ASSUMPTION AND CONFIRMATION AGREEMENT. The Assumption and
Confirmation Agreement, duly executed and delivered by CasTech and Xxxxxx.
(b) CORPORATE DOCUMENTS. The following documents, each certified as
indicated below:
(i) a certificate of the Secretary of CasTech dated the Merger
Date certifying (A) that attached thereto is a true and complete copy
of the Certificate of Incorporation and by-laws of CasTech, as amended
and in effect on the Merger Date, (B) that attached thereto is a true
and complete copy of resolutions duly adopted by the board of
directors of CasTech authorizing the execution, delivery and
performance of the Assumption
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Agreement and (C) as to the incumbency and specimen
signature of each officer of CasTech that executed the
Assumption Agreement (and the Administrative Agent and each Lender may
conclusively rely on such certificate until it receives notice in
writing from CasTech); and
(ii) a certificate of another officer of CasTech, dated the Merger
Date, as to the incumbency and specimen signature of the Secretary of
CasTech.
(c) NOTES. The Post-Merger Term Loan Notes, duly completed and
executed for each Term Loan Lender.
(d) MORTGAGES AND TITLE INSURANCE. To the extent requested by the
Administrative Agent, except as covered by Section 9.18 hereof and unless
previously delivered on the Tender Offer Closing Date, the following
documents each of which shall be executed (and, where appropriate,
acknowledged) by Persons satisfactory to the Administrative Agent:
(i) Mortgages covering the real Properties of the Parent, CALI,
CasTech and Xxxxxx identified in Schedules XV and XVI hereto, in each
case duly executed and delivered by the Parent, CALI, CasTech or
Barmet, as the case may be, in recordable form (in such number of
copies as the Administrative Agent shall have reasonably requested);
(ii) mortgagee policies of title insurance on forms of and issued
by one or more Title Companies insuring the validity and priority of
the Liens created under such Mortgages for and in amounts satisfactory
to the Administrative Agent, subject only to such exceptions as are
satisfactory to the Administrative Agent and, to the extent necessary
under applicable law, for filing in the appropriate county land
offices, Uniform Commercial Code financing statements covering
fixtures, in each case appropriately completed and duly executed;
(iii) as-built surveys, re-dated of recent date or updated by
physical inspection (including aerial inspection) of recent date of
each of the facilities to be covered by such Mortgages, showing such
matters as may be required by the Administrative Agent, which surveys
shall be in form and content acceptable to the Administrative Agent,
and certified to the Administrative Agent and to each Lender and the
Title
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Companies, and shall have been prepared by a registered surveyor
reasonably acceptable to the Administrative Agent; and
(iv) copies of permanent and unconditional certificates of
occupancy for each fee owned real Property covered by a Mortgage (or,
if it is not the practice to issue certificates of occupancy in the
jurisdiction in which the facilities to be covered by such Mortgages
are located, then such other evidence reasonably satisfactory to the
Administrative Agent) permitting the fully functioning operation and
occupancy of each such facility and of such other permits necessary
for the use and operation of each such facility issued by the
respective governmental authorities having jurisdiction over each such
facility.
In addition, the Parent shall have paid to the Title Companies all expenses
and premiums of the Title Companies in connection with the issuance of such
policies and in addition shall have paid to the Title Companies an amount
equal to the recording and stamp taxes payable in connection with recording
such Mortgages in the appropriate county land offices.
(e) AMOUNT OF POST-MERGER REVOLVING CREDIT LOANS. Evidence
satisfactory to the Lenders that after giving effect to the borrowings of
the Post-Merger Term Loans and the repayment of the Tender Offer Loans on
the Merger Date and the borrowings of the Post-Merger Revolving Credit
Loans contemplated to occur on the Merger Date, the aggregate outstanding
principal amount of Post-Merger Revolving Credit Loans as of the Merger
Date will not exceed $160,000,000.
(f) LIENS. Evidence that, after giving effect to the Merger, the
CasTech Pledge and Security Agreement creates a valid and perfected Lien on
the Property of CasTech and Barmet subject to no other Lien (except Liens
permitted by Section 9.06 hereof).
(g) MERGER. Evidence that the Parent, New CALC and CasTech shall
have consummated the Merger in compliance with the Merger Agreement and all
applicable laws.
(h) REPAYMENT OF EXISTING INDEBTEDNESS. To the extent not repaid
pursuant to Section 7.01 hereof, evidence that the principal of and
interest on, and all other amounts
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owing in respect of, the Indebtedness of CasTech (including,
without limitation, any contingent or other amounts payable
in respect of letters of credit) indicated on Part A of Schedule VI
hereto that is to be repaid on the Merger Date shall have been (or shall be
simultaneously) paid in full, that any commitments to extend credit under
the agreements or instruments relating to such Indebtedness shall have been
canceled or terminated and that all Guarantees in respect of, and all Liens
securing, any such Indebtedness shall have been released (or arrangement
for such release satisfactory to the Majority Lenders shall have been
made).
(i) OFFICER'S CERTIFICATE. A certificate of a senior officer of the
Parent to the effect set forth in clauses (a), (b) and (c) of Section 7.05
hereof and that none of the provisions of the Merger Agreement as in effect
on the Initial Borrowing Date, has been amended or otherwise modified
without the consent of the Majority Lenders.
(j) OPINIONS OF SPECIAL NEW YORK COUNSEL TO THE OBLIGORS. Opinions,
dated the Merger Date, of Xxxxxxxx & Xxxxxxxx, special New York counsel to
certain of the Obligors, and such other counsel satisfactory to the
Administrative Agent, covering all of the matters set forth in Exhibit G
hereto to be covered by such counsel on the Merger Date (and each Obligor
hereby instructs such counsel to deliver such opinion to the Lenders and
the Administrative Agent).
(k) OPINION OF LOCAL COUNSEL. Opinions, dated the Merger Date, of
local counsel in the respective states in which the Properties covered by
the Mortgages referred to in clause (d) above are located, substantially in
the form of Exhibit H hereto, in each case covering such other matters as
the Administrative Agent or any Lender may reasonably request (and each
Obligor hereby instructs such counsel to deliver such opinions to the
Lenders and the Administrative Agent).
(l) OPINION OF SPECIAL NEW YORK COUNSEL TO NATWEST. An opinion,
dated the Merger Date, of Milbank, Xxxxx, Xxxxxx & XxXxxx, special New York
counsel to NatWest, substantially in the form of Exhibit I-2 hereto (and
NatWest hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
(m) SOLVENCY ANALYSIS. A certificate from the chief financial
officer of the Parent that, as of the Merger Date
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and after giving effect to the Merger, the borrowings contemplated
hereunder in the full amount of the Commitments, the issuance of
the full amount of the Senior Subordinated Debt, and the other
transactions contemplated by the Basic Documents, no Obligor,
on a stand-alone or consolidated basis, (i) will be insolvent or
will be rendered insolvent by the Indebtedness incurred in connection
therewith, (ii) will be left with unreasonably small capital with which to
conduct its business operations as heretofore conducted or (iii) will have
incurred debts beyond its ability to pay such debts as they mature. The
Administrative Agent shall have also received a certificate from the chief
financial officer of the Parent certifying that the financial projections
and underlying assumptions contained in such analyses were at the time made
prepared in good faith and on the Merger Date and such officer has no
reason to believe that such projections and assumptions are materially
inaccurate, and in each case such analyses were accurately computed.
(n) FINANCING STATEMENTS. Unless previously delivered on the Tender
Offer Closing Date, appropriately completed and duly executed copies of
Uniform Commercial Code Financing Statements, as requested by the
Administrative Agent, in order to perfect the security interests created
pursuant to the CasTech Pledge and Security Agreement.
(o) OTHER DOCUMENTS. Such other documents as the Administrative
Agent or any Lender or special New York counsel to the Administrative Agent
may reasonably request.
7.04 INITIAL POST-MERGER REVOLVING CREDIT LOANS. The obligation of
each Revolving Credit Lender to make its initial Post-Merger Revolving Credit
Loan hereunder is subject to the conditions precedent that the Administrative
Agent shall have received the following documents (with, in the case of
clause (c) below, sufficient copies for each Revolving Credit Lender), each of
which shall be satisfactory to the Administrative Agent in form and substance:
(a) POST-MERGER TERM LOANS. Evidence that the Post-Merger Term Loans
shall have been borrowed.
(b) NOTES. The Post-Merger Revolving Credit Notes, duly completed
and executed for each Revolving Credit Lender.
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(c) BORROWING BASE CERTIFICATE. A Borrowing Base Certificate dated
as of a date not more than 30 days prior to the date of the making of the
initial Post-Merger Revolving Credit Loans, duly executed.
7.05 INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT. The obligation of
the Lenders to make any Loan or otherwise extend any credit to either Obligor
upon the occasion of each borrowing or other extension of credit hereunder
(including the initial borrowings of the Tender Offer Loans and the Post-Merger
Loans) is subject to the further conditions precedent that, both immediately
prior to the making of such Loan or other extension of credit and also after
giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by each Obligor in
Section 8 hereof (other than, in the case of any borrowing prior to the
Merger Date, the representations and warranties set forth in paragraph (ii)
in the last sentence of Section 8.02 hereof) and in each other Basic
Document to which such Obligor is a party, shall be true and complete in
all material respects on and as of the date of the making of such Loan or
other extension of credit (and after giving effect thereto) with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and
(c) to the extent there are Loans outstanding under any Revolving
Credit Facility, the aggregate principal amount of such Loans together with
the aggregate amount of all Letter of Credit Liabilities under such
Facility shall not exceed the Borrowing Base for such Facility reflected on
the most recent Borrowing Base Certificate delivered pursuant to Section
7.04(c) or 9.01(f) hereof.
Each notice of borrowing or request for the issuance of a Letter of Credit by a
Borrower hereunder shall constitute a certification by such Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless such Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
7.06 CERTAIN DETERMINATIONS. For purposes of determining compliance
with the conditions specified in
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Sections 7.01, 7.02, 7.03 and 7.04 hereof, each Lender shall be deemed to be
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lenders unless an officer of the
Administrative Agent responsible for the transactions contemplated by the
Credit Documents shall have received notice from such Lender prior to the
Initial Borrowing Date (or, in the case of Sections 7.02, 7.03 and 7.04
hereof, the initial Loan under such Section) specifying its objection
thereto, and such Lender shall not have made available to the Administrative
Agent such Xxxxxx's ratable portion of such Loan.
Section 8. REPRESENTATIONS AND WARRANTIES. Each Obligor represents
and warrants to the Administrative Agent and the Lenders that:
8.01 CORPORATE EXISTENCE. Each Obligor and its Subsidiaries
(including for purposes of this Section 8.01, CasTech and its Subsidiaries):
(a) is a corporation, partnership or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted except where the failure to have the same could not reasonably be
expected to have a Material Adverse Effect; and (c) is qualified to do business
and is in good standing as a foreign entity in all jurisdictions in which the
nature of the business conducted by it requires such qualification except where
failure so to qualify could not reasonably be expected (either individually or
in the aggregate) to have a Material Adverse Effect.
8.02 FINANCIAL CONDITION. The Parent has heretofore furnished to
each of the Lenders the following:
(a) consolidated and consolidating balance sheets of the Parent
and its Subsidiaries as at December 31, 1995 and the related consolidated
and consolidating statements of income, retained earnings and cash flows of
the Parent and its Subsidiaries for the fiscal year ended on said date,
with the opinion thereon (in the case of said consolidated balance sheet
and statements) of Coopers & Xxxxxxx L.L.P., and the unaudited consolidated
and consolidating balance sheets of the Parent and its Subsidiaries as at
June 30, 1996 and the related consolidated and consolidating
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statements of income, retained earnings and cash flows of the Parent and
its Subsidiaries for the six-month period ended on such date; and
(b) consolidated and consolidating balance sheets of CasTech and
its Subsidiaries as at March 31, 1996 and the related consolidated and
consolidating statements of income, retained earnings and cash flows of
CasTech and its Subsidiaries for the fiscal year ended on said date, with
the opinion thereon (in the case of said consolidated balance sheet and
statements) of Ernst & Young L.L.P., and the unaudited consolidated and
consolidating balance sheets of CasTech and its Subsidiaries as at June 30,
1996 and the related consolidated and consolidating statements of income,
retained earnings and cash flows of CasTech and its Subsidiaries for the
three-month period ended on such date.
All such financial statements fairly present, in all material respects, the
consolidated financial condition of the Parent and its Subsidiaries and CasTech
and its Subsidiaries, as the case may be, and (in the case of said consolidating
financial statements) the respective unconsolidated financial condition of the
Parent and its Subsidiaries and CasTech and its Subsidiaries, as the case may
be, as at said dates and the consolidated and unconsolidated results of their
respective operations for the fiscal years and periods ended on said dates
(subject, in the case of such financial statements as at June 30, 1996, to
normal year-end audit adjustments), all in accordance with generally accepted
accounting principles and practices applied on a consistent basis. Except as
otherwise disclosed to the Administrative Agent or the Lenders in writing prior
to the date hereof, none of the Parent nor any of its Subsidiaries, nor CasTech
nor any of its Subsidiaries, has on the date hereof any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in said balance sheets as at said
dates. Since December 31, 1995 (in the case of the Parent and its Subsidiaries)
or March 31, 1996 (in the case of CasTech and its Subsidiaries):
(i) there has been no material adverse change in the business,
properties, assets, operations, conditions (financial or otherwise), or
prospects of CasTech and its Subsidiaries, taken as a whole; and
(ii) other than the Merger, there has been no material adverse change
in the business, properties, assets,
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operations, conditions (financial or otherwise), or prospects of the Parent
and its Subsidiaries (including CALI and New CALC) taken as a whole.
8.03 LITIGATION. Except as disclosed in Schedule II hereto, there
are no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of any Obligor) threatened against any Obligor or any of its Subsidiaries that
could reasonably be expected (either individually or in the aggregate) to have a
Material Adverse Effect.
8.04 NO BREACH. Except as disclosed in Schedule III hereto, none of
the execution and delivery of this Agreement and the Notes and the other Basic
Documents, the consummation of the transactions herein and therein contemplated
or compliance with the terms and provisions hereof and thereof will conflict
with or result in a breach of, or require any consent under, the charter or
by-laws of any Obligor or any of its Subsidiaries (including, for purposes of
this Section 8.04, CasTech and its Subsidiaries), or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any material agreement or instrument to
which it or any of its Subsidiaries is a party or by which any of them or any of
their Property is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or (except for the Liens created
pursuant to the Security Documents) result in the creation or imposition of any
Lien upon any Property of any Obligor or any of its Subsidiaries pursuant to the
terms of any such agreement or instrument.
8.05 ACTION. Subject only to approval of the Merger Agreement by
holders of a majority of the outstanding CasTech Shares, each Obligor and each
of its Subsidiaries (including, for purposes of this Section 8.05, CasTech and
its Subsidiaries) has all necessary corporate power, authority and legal right
to execute, deliver and perform its obligations under each of the Basic
Documents to which it is a party; the execution, delivery and performance by
each Obligor of each of the Basic Documents to which it is a party have been
duly authorized by all necessary corporate action on its part; and this
Agreement has been duly and validly executed and delivered by each Obligor and
constitutes, and each of the Notes and the other Basic Documents to which it is
a party when executed and delivered by such Obligor (in the case of the Notes,
for value) will constitute, its legal, valid and binding obligation, enforceable
against each Obligor in accordance with its terms.
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8.06 APPROVALS. Except for filings and recordings in respect of the
Liens created pursuant to the Security Documents and the other filings and
recordings identified on Schedule IV hereto, no authorizations, approvals or
consents of, and no filings or registrations with, any governmental or
regulatory authority or agency, or any securities exchange, are necessary for
the execution, delivery or performance by any Obligor of this Agreement or any
of the other Basic Documents to which it is a party or for the legality,
validity or enforceability hereof or thereof.
8.07 USE OF CREDIT. Other than the incurrence of Indebtedness
hereunder and under the Senior Subordinated Debt Documents in connection with
the Acquisition, no Obligor nor any of its Subsidiaries (including, for purposes
of this Section 8.07, CasTech and its Subsidiaries) is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin
Stock. After applying the proceeds of each Loan, not more than 25% of the value
of the assets of any Obligor and such Obligor's Subsidiaries (as determined in
good faith by such Obligor) will consist of or be represented by Margin Stock
other than the CasTech Shares. Neither the making of any of the Loans nor
issuance of the Letters of Credit nor the use of the proceeds thereof will
violate or be inconsistent with the provisions of Regulations G, U or X. If
requested by any Lender or the Administrative Agent, the Parent and each
Borrower will furnish to the Administrative Agent and each Lender a statement in
conformity with the requirements of Federal Reserve Form U-1 referred to in
Regulation U, the statements made in which shall be such, in the opinion of each
Lender, as to permit the transactions contemplated hereby in accordance with
Regulation U.
8.08 ERISA. Each Plan, and, to the knowledge of the Parent, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, except where
such non-compliance thereof could not reasonably be expected to lead to a
material liability, and no event or condition has occurred and is continuing as
to which any Obligor (or, prior to the Merger, CasTech) would be under an
obligation to furnish a report to the Lenders under Section 9.01(e) hereof,
unless such event or condition could not reasonably be expected to lead to a
material liability.
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8.09 TAXES.
(a) The Parent and its Subsidiaries are members of an affiliated
group of corporations filing consolidated returns for Federal income tax
purposes, of which the Parent is the "common parent" (within the meaning of
Section 1504 of the Code) of such group.
(b) The Parent and its Subsidiaries (including, for purposes of this
Section 8.09(b), CasTech and its Subsidiaries) have filed all Federal income tax
returns and all other material tax returns that are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by them or any of their respective Subsidiaries, subject to
any extensions granted so long as no penalty shall be due in relation thereto.
The charges, accruals and reserves on the books of the Parent and its
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Parent, adequate. Neither the Parent nor any of its Subsidiaries
has given or been requested to give a waiver of the statute of limitations
relating to the payment of any Federal, state, local and foreign taxes or other
impositions.
8.10 INVESTMENT COMPANY ACT. Neither the Parent nor any of its
Subsidiaries (including, for purposes of this Section 8.10, CasTech and its
Subsidiaries) is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Parent nor any
of its Subsidiaries (including, for purposes of this Section 8.11, CasTech and
its Subsidiaries) is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 MATERIAL AGREEMENTS AND LIENS.
(a) Part A of Schedule V hereto is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guarantee by, the Parent and its Subsidiaries outstanding on the
date hereof, or that (after giving effect to the transactions contemplated to
occur on or before the Initial Borrowing Date) will be outstanding on the
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Initial Borrowing Date, and the aggregate principal or face amount outstanding
or that may become outstanding under each such arrangement is correctly
described in Part A of said Schedule V.
(b) Part A of Schedule VI hereto is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guarantee by, CasTech and its Subsidiaries outstanding on the
date hereof, or that (after giving effect to the transactions contemplated to
occur on or before the Initial Borrowing Date) will be outstanding on the
Initial Borrowing Date, and the aggregate principal or face amount outstanding
or that may become outstanding under each such arrangement is correctly
described in Part A of said Schedule VI.
(c) Part B of Schedule V hereto is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof, or
that (after giving effect to the transactions contemplated to occur on or before
the Initial Borrowing Date) will be outstanding on the Initial Borrowing Date,
covering any Property of the Parent or any of its Subsidiaries, and the
aggregate Indebtedness secured (or that may be secured) by each such Lien and
the Property covered by each such Lien is correctly described in Part B of said
Schedule V.
(d) Part B of Schedule VI hereto is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof, or
that (after giving effect to the transactions contemplated to occur on or before
the Initial Borrowing Date) will be outstanding on the Initial Borrowing Date,
covering any Property of CasTech or any of its Subsidiaries, and the aggregate
Indebtedness secured (or that may be secured) by each such Lien and the Property
covered by each such Lien is correctly described in Part B of said Schedule VI.
8.13 ENVIRONMENTAL MATTERS. Except as set forth on Schedule VII
hereto or as could not reasonably be expected (either individually or in the
aggregate) to have a Material Adverse Effect:
(a) Each of the Parent and its Subsidiaries (including, for all
purposes of this Section 8.13, CasTech and its Subsidiaries) has obtained
all environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its
business as being conducted, and each of such permits,
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licenses and authorizations is in full force and effect and each of the
Parent and its Subsidiaries is in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder.
(b) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed and, to the Parent's or any of its Subsidiaries'
knowledge, no investigation or review is pending or threatened by any
governmental or other entity with respect to any alleged failure by the
Parent or any of its Subsidiaries to have any environmental, health or
safety permit, license or other authorization required under any
Environmental Law in connection with the conduct of the business of the
Parent or any of its Subsidiaries or with respect to any generation,
treatment, storage, recycling, transportation, discharge or disposal, or
any Release of any Hazardous Materials generated by the Parent or any of
its Subsidiaries.
(c) Neither the Parent nor any of its Subsidiaries owns, operates or
leases a treatment, storage or disposal facility requiring a permit under
the Resource Conservation and Recovery Act of 1976, as amended; and
(i) no polychlorinated biphenyls (PCB's) is or has been
present at any site or facility now or previously owned, operated or
leased by the Parent or any of its Subsidiaries;
(ii) no Hazardous Materials have been Released at, on or under
any site or facility now or previously owned, operated or leased by
the Parent or any of its Subsidiaries in a reportable quantity
established by statute, ordinance, rule, regulation or order; and
(iii) no Hazardous Materials have been otherwise Released at,
on or under any site or facility now or previously owned, operated or
leased by the Parent or any of its Subsidiaries.
(d) Neither the Parent nor any of its Subsidiaries has transported or
arranged for the transportation of any
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Hazardous Material to any location that is listed on the
National Priorities List ("NPL") under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), listed for possible inclusion on the NPL by
the Environmental Protection Agency in the Comprehensive Environmental
Response and Liability Information System, as provided for by 40 C.F.R.
Section 300.5 ("CERCLIS"), or on any similar state or local list or that
is the subject of Federal, state or local enforcement actions or other
investigations that could reasonably be expected to lead to Environmental
Claims against the Parent or any of its Subsidiaries.
(e) No Hazardous Material generated by the Parent or any of its
Subsidiaries has been recycled, treated, stored, disposed of or Released by
the Parent or any of its Subsidiaries in violation of Environmental Law or
that could reasonably be expected to give rise to liability under
Environmental Law.
(f) No oral or written notification of a Release of a Hazardous
Material has been filed by or on behalf of the Parent or any of its
Subsidiaries and no site or facility now or previously owned, operated or
leased by the Parent or any of its Subsidiaries is listed or proposed for
listing on the NPL, CERCLIS or any similar state list of sites requiring
investigation or clean-up.
(g) No Liens have arisen under or pursuant to any Environmental Laws
on any site or facility owned, operated or leased by the Parent or any of
its Subsidiaries, and no government action has been taken or is known by
the Parent or any such Subsidiary to be in process that could reasonably be
expected to subject any such site or facility to such Liens and neither the
Parent nor any of its Subsidiaries would be required to place any notice or
restriction relating to the presence of Hazardous Materials at any site or
facility owned by it in any deed to the real property on which such site or
facility is located.
(h) The Parent and its Subsidiaries have made available to the
Administrative Agent certain environmental investigations, studies, audits,
tests, reviews or other analyses conducted by or that are in the possession
of the Parent or any of its Subsidiaries with respect to all matters
relating to facts, circumstances or conditions at or affecting any site or
facility now or previously owned, operated or leased by the Parent or any
of its Subsidiaries
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and that, to the Parent's knowledge, could reasonably be expected
(either individually or in the aggregate) to have resulted in a
Material Adverse Effect.
8.14 CAPITALIZATION.
(a) Part A of Schedule VIII hereto correctly sets forth the
authorized Capital Stock of the Parent on the date hereof. All of the issued
and outstanding shares of each class of Capital Stock of the Parent on the date
hereof are duly and validly issued, fully paid and nonassessable. On the date
hereof, except as disclosed in Part B of said Schedule VIII, (x) there are no
outstanding Equity Rights with respect to the Parent and there are no
outstanding obligations of the Parent or any of its Subsidiaries to
repurchase, redeem, or otherwise acquire any shares of Capital Stock of the
Parent, and (y) are there no outstanding obligations of the Parent or any of its
Subsidiaries (including, without limitation, CALI or New CALC) to make payments
to any Person, such as "phantom stock" payments, where the amount thereof is
calculated with reference to the fair market value or equity value of the Parent
or any of its Subsidiaries (including, without limitation, CALI or New CALC).
(b) Part A of Schedule IX hereto correctly sets forth the authorized
Capital Stock of CALI on the date hereof. All of the issued and outstanding
shares of each class of Capital Stock of CALI on the date hereof are duly and
validly issued, fully paid and nonassessable. On the date hereof all of such
issued and outstanding shares of Capital Stock are owned beneficially and of
record by the Parent. On the date hereof, except as disclosed in Part B of said
Schedule IX, there are no outstanding Equity Rights with respect to CALI and
there are no outstanding obligations of the Parent or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of CALI.
(c) Part A of Schedule X hereto correctly sets forth the authorized
Capital Stock of New CALC on the date hereof. All of the issued and outstanding
shares of each class of Capital Stock of New CALC on the date hereof are duly
and validly issued, fully paid and nonassessable. On the date hereof all of
such issued and outstanding shares of Capital Stock are owned beneficially and
of record by the Parent. On the date hereof, except as disclosed in Part B of
said Schedule X, there are no outstanding Equity Rights with respect to New CALC
and there are no outstanding obligations of the Parent or any of its
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Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of New CALC.
(d) Part A of Schedule XI hereto correctly sets forth the authorized
Capital Stock of CasTech on the date hereof. All of the issued and outstanding
shares of each class of Capital Stock of CasTech are fully paid and
nonassessable. On the date hereof, except as disclosed in Part B of said
Schedule XI, (x) there are no outstanding Equity Rights with respect to
CasTech and there are no outstanding obligations of CasTech or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of CasTech and (y) there are no outstanding obligations of CasTech or any
of its Subsidiaries to make payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market value or equity value of CasTech or any of its Subsidiaries (other than
rights arising under Section 262 of the Delaware General Corporation Law in
connection with the Acquisition).
(e) Part A of Schedule XII hereto correctly sets forth the authorized
Capital Stock of Barmet on the date hereof. All of the issued and outstanding
shares of each class of Capital Stock of Barmet are fully paid and
nonassessable. On the date hereof, except as disclosed in Part B of said
Schedule XII, (x) there are no outstanding Equity Rights with respect to
Barmet and there are no outstanding obligations of Barmet or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of Barmet and (y) there are no outstanding obligations of Barmet or any of
its Subsidiaries to make payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market value or equity value of Barmet or any of its Subsidiaries.
(f) On the Merger Date and after giving effect to the Merger, the
authorized Capital Stock of New CALC will consist of an aggregate of 1000 shares
consisting of Common Stock, par value $0.01 per share. All of the issued and
outstanding shares of New CALC on such date and at such time will be duly and
validly issued, fully paid and nonassessable. As of such date and time, all of
such shares will be owned beneficially and of record by the Parent and (x) there
will be no outstanding Equity Rights with respect to New CALC and (y) there will
be no outstanding obligations of the Parent or New CALC or any of their
respective Subsidiaries to repurchase, redeem, or otherwise acquire any shares
of Capital Stock of New CALC, nor will there be any outstanding obligations of
the Parent or New CALC or any of their
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respective Subsidiaries to make payments to any Person, such as "phantom
stock" payments, where the amount thereof is calculated with reference to the
fair market value or equity value of New CALC or any of its Subsidiaries
(other than rights arising under Section 262 of the Delaware General
Corporation Law in connection with the Acquisition).
8.15 SUBSIDIARIES, ETC.
(a) Set forth in Part A of Schedule XIII hereto is a complete and
correct list of all of the Subsidiaries of the Parent as of the date hereof
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Part A of said Schedule XIII (x) each of the
Parent and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents), and has the unencumbered right to
vote, all outstanding ownership interests in each Person shown to be held by it
in Part A of said Schedule XIII, (y) all of the issued and outstanding Capital
Stock of each such Person organized as a corporation is validly issued, fully
paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to such Person.
(b) Set forth in Part B of Schedule XIII hereto is a complete and
correct list of all of the Subsidiaries of the Parent after giving effect to the
Acquisition, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part B of said Schedule XIII,
as of the Merger Date and after giving effect to the Merger, (x) each of the
Parent and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents), and has the unencumbered right to
vote, all outstanding ownership interests in each Person shown to be held by it
in Part B of said Schedule XIII, (y) all of the issued and outstanding Capital
Stock of each such Person organized as a corporation is validly issued, fully
paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to such Person.
(c) Set forth in Part C of Schedule XIII hereto is a complete and
correct list of all Investments (other than
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Investments disclosed in Parts A and B of said Schedule XIII hereto) held by
the Parent, CasTech or any of their respective Subsidiaries on the date
hereof and, for each such Investment, (x) the identity of the Person or
Persons holding such Investment and (y) the nature of such Investment.
Except as disclosed in Part C of said Schedule XIII, each of the Parent,
CasTech and their respective Subsidiaries owns, free and clear of all Liens
(other than Liens created pursuant to the Security Documents), all such
Investments.
(d) None of the Subsidiaries of the Parent (including, for purposes
of this Section 8.15(d), CasTech or any of its Subsidiaries) is, on the date
hereof, subject to any indenture, agreement, instrument or other arrangement of
the type described in Section 9.17(c) hereof.
8.16 TITLE TO ASSETS. Except as disclosed in Schedule XIV hereto,
each of the Parent, CasTech and their respective Subsidiaries owns and has on
the date hereof good and marketable title (subject only to Liens permitted by
Section 9.06 hereof) to the Properties shown to be owned in the most recent
financial statements referred to in Section 8.02 hereof (other than Properties
disposed of in the ordinary course of business or otherwise permitted to be
disposed of pursuant to Section 9.05 hereof). Each of the Parent, CasTech and
their respective Subsidiaries owns and has on the date hereof good and
marketable title to, or (in the case of any real property leases), a valid and
subsisting leasehold estate in and to, and enjoys on the date hereof peaceful
and undisturbed possession of, all Properties (subject only to Liens permitted
by Section 9.06 hereof) that are necessary for the operation and conduct of its
businesses.
8.17 TRUE AND COMPLETE DISCLOSURE. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement and the other
Credit Documents or included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole do not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements herein
or therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by the
Parent and its Subsidiaries to the Administrative Agent and the Lenders in
connection with this Agreement and the other Credit Documents and the
transactions contemplated hereby and thereby will be true, complete and accurate
in every material respect, or (in the case of projections) based on reasonable
estimates, on
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the date as of which such information is stated or certified.
There is no fact known to any Obligor that could reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect that has not
been disclosed herein, in the other Credit Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
8.18 REAL PROPERTY. Set forth on (a) Schedule XV hereto is a list,
as of the date hereof, of all of the real property interests held by the Parent
and its Subsidiaries, indicating in each case whether the respective Property is
owned or leased, the identity of the owner or lessee and the location of the
respective Property; and (b) Schedule XVI hereto is a list, as of the date
hereof, of all of the real property interests held by CasTech and its
Subsidiaries, indicating in each case whether the respective Property is owned
or leased, the identity of the owner or lessee and the location of the
respective Property.
8.19 SECURITY DOCUMENTS. The Security Documents create, as security
for the obligations purported to be secured thereby, a valid and enforceable
perfected security interest in and Lien on all of the Properties to be covered
thereby in favor of the Administrative Agent, superior to and prior to the right
of all third Persons and subject to no other Liens (other than Permitted Liens).
8.20 ACQUISITION COSTS. The Acquisition Costs will not exceed
$20,000,000.
Section 9. COVENANTS OF THE OBLIGORS. Each Obligor covenants and
agrees with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Borrowers hereunder:
9.01 FINANCIAL STATEMENTS, ETC. The Parent (for itself and on behalf
of each other Obligor) shall deliver to each of the Lenders:
(a) as soon as available and in any event within 45 days after the
end of each quarterly fiscal period of each fiscal year of the Parent,
consolidated and consolidating statements of income, retained earnings and
cash flows of the Parent and its Subsidiaries for such period and for the
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period from the beginning of the respective fiscal year to the end of such
period, and the related consolidated and consolidating balance sheets of
the Parent and its Subsidiaries as at the end of such period, setting forth
in each case in comparative form the corresponding consolidated and
consolidating figures for the corresponding periods in the preceding fiscal
year (PROVIDED that, until four full fiscal quarters of the Parent have
elapsed since the Merger Date, such corresponding figures shall be the pro
forma consolidated figures furnished to the Administrative Agent prior to
the Initial Borrowing Date), accompanied by a certificate of a Responsible
Officer of the Parent, which certificate shall state that said consolidated
financial statements fairly present in all material respects the
consolidated financial condition and results of operations of the Parent
and its Subsidiaries, and said consolidating financial statements fairly
present in all material respects the respective individual unconsolidated
financial condition and results of operations of the Parent and of each of
its Subsidiaries, in each case in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and for,
such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 90 days after the
end of each fiscal year of the Parent, consolidated and consolidating
statements of income, retained earnings and cash flows of the Parent and
its Subsidiaries for such fiscal year and the related consolidated and
consolidating balance sheets of the Parent and its Subsidiaries as at the
end of such fiscal year, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the preceding
fiscal year (PROVIDED that, until a full fiscal year of the Parent has
elapsed since the Merger Date, such corresponding figures shall be the pro
forma consolidated figures furnished to the Administrative Agent prior to
the Initial Borrowing Date), and accompanied (i) in the case of said
consolidated statements and balance sheet of the Parent, by an opinion
thereon of independent certified public accountants of recognized national
standing, which opinion shall state that said consolidated financial
statements fairly present in all material respects the consolidated
financial condition and results of operations of the Parent and its
Subsidiaries as at the end of, and for, such fiscal year in accordance with
generally accepted accounting principles, and a statement of such
accountants to the effect that, in making the examination necessary for
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their opinion, nothing came to their attention that caused them to believe
that the Parent was not in compliance with Sections 9.07(g), 9.09, 9.10 and
9.11 hereof, insofar as such Sections relate to accounting matters, and
(ii) in the case of said consolidating statements and balance sheets, by a
certificate of a senior financial officer of the Parent, which certificate
shall state that said consolidating financial statements fairly present in
all material respects the respective individual unconsolidated financial
condition and results of operations of the Parent and of each of its
Subsidiaries, in each case in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such fiscal
year;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Parent or any of its Subsidiaries shall have filed with the Commission (or
any governmental agency substituted therefor) or any national securities
exchange;
(d) promptly upon the mailing thereof to the shareholders of the
Parent generally or to holders of Subordinated Indebtedness or Senior
Subordinated Debt generally, copies of all financial statements, reports
and proxy statements so mailed;
(e) as soon as possible, and in any event within 15 days after any
Obligor knows or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan has occurred
or exists, a statement signed by a Responsible Officer of the Parent
setting forth details respecting such event or condition and the action, if
any, that the Parent or its ERISA Affiliate proposes to take with respect
thereto (and a copy of any report or notice required to be filed with or
given to the PBGC by the Parent or an ERISA Affiliate with respect to such
event or condition):
(i) any reportable event, as defined in Section 4043(c) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (PROVIDED that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before its
due date a required installment under
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Section 412(m) of the Code or Section 302(e) of ERISA, shall be
a reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code); and any request for
a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041(c)(1)(A) of ERISA of
a notice of intent to terminate any Plan or any action taken by any
Obligor or an ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by any Obligor or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by any Obligor or any ERISA Affiliate that results in liability
under Section 4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of a purchaser default) or the
receipt by any Obligor or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA or that it intends to terminate or
has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against any Obligor or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
30 days; and
(vi) the adoption of an amendment to any Plan that, pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such
Plan is a part if any Obligor or an ERISA Affiliate fails to timely
provide security to the Plan in accordance with the provisions of said
Sections;
(f) as soon as available and in any event within 15 Business Days
after the end of each monthly accounting period (ending on the last day of
each calendar month), a Borrowing Base Certificate of the Parent as at the
last day of such accounting period;
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(g) periodically at the request of the Administrative Agent or the
Majority Lenders, a report of an independent collateral auditor (which may
be, or be affiliated with, one of the Lenders) selected by the
Administrative Agent and reasonably acceptable to the Parent with respect
to the Receivables and Inventory components included in the Borrowing Base
as at the end of any monthly accounting period, which report shall indicate
that, based upon a review by such auditors of the Receivables (including,
without limitation, verification with respect to the amount, aging,
identity and credit of the respective account debtors and the billing
practices of the Parent and its Subsidiaries) and Inventory (including,
without limitation, verification as to the value, location and respective
types), the information set forth in the Borrowing Base Certificate
delivered by the Parent as at the end of such accounting period is accurate
and complete in all material respects and in addition, as soon as available
and in any event within 45 days after the end of each fiscal year of the
Parent, a like report of independent public accountants of recognized
national standing with respect to the Receivables and Inventory components
included in the Borrowing Base as at the end of such fiscal year;
(h) promptly after any Responsible Officer of any Obligor knows or
has reason to believe that any Default has occurred, a notice of such
Default describing the same in reasonable detail and, together with such
notice or as soon thereafter as possible, a description of the action that
the Obligors have taken or propose to take with respect thereto; and
(i) from time to time such other information regarding the financial
condition, operations, business or prospects of the Parent or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA) as
any Lender or the Administrative Agent may reasonably request.
The Parent will furnish to each Lender, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
Responsible Officer of the Parent (i) to the effect that no Default has occurred
and is continuing (or, if any Default has occurred and is continuing, describing
the same in reasonable detail and describing the action that the Obligors have
has taken or propose to take with respect thereto) and (ii) setting forth in
reasonable detail the computations
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necessary to determine whether the Obligors are in compliance with Sections
9.07(g), 9.08(i), 9.09, 9.10 and 9.11 hereof as of the end of the respective
quarterly fiscal period or fiscal year.
9.02 LITIGATION. The Parent (for itself and on behalf of each other
Obligor) will promptly give to each Lender notice of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of such legal or
other proceedings, affecting the Parent or any of its Subsidiaries, except
proceedings that could not reasonably be expected (either individually or in the
aggregate) to have a Material Adverse Effect. Without limiting the generality
of the foregoing, the Parent will give to each Lender notice of the assertion of
any Environmental Claim by any Person against, or with respect to the activities
of, the Parent or any of its Subsidiaries and notice of any alleged violation of
or non-compliance with any Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claim or alleged violation that
could not reasonably be expected (either individually or in the aggregate) to
have a Material Adverse Effect.
9.03 EXISTENCE, ETC. The Parent will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises (PROVIDED that nothing in this
Section 9.03 shall prohibit any transaction expressly permitted under
Section 9.05 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure
to comply with such requirements could reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except for
any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which
adequate reserves are being maintained;
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(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Administrative Agent,
during normal business hours, to examine, copy and make extracts from its
books and records, to inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Administrative Agent (as the case may be).
9.04 INSURANCE. The Parent will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations.
The Parent will in any event maintain (with respect to itself and each
of its Subsidiaries):
(1) CASUALTY INSURANCE -- insurance against loss or damage covering
all of the tangible real and personal Property and improvements of the
Parent and each of its Subsidiaries by reason of any Peril (as defined
below) in such amounts (subject to such deductibles as shall be
satisfactory to the Majority Lenders) as shall be reasonable and customary
and sufficient to avoid the insured named therein from becoming a
co-insurer of any loss under such policy but in any event in an amount
(i) in the case of fixed assets and equipment (other than vehicles), at
least equal to 100% of the actual replacement cost of such assets
(including, without limitation, foundation, footings and excavation costs),
subject to deductibles as aforesaid and (ii) in the case of inventory, not
less than the fair market value thereof, subject to deductibles as
aforesaid.
(2) AUTOMOBILE LIABILITY INSURANCE FOR BODILY INJURY AND PROPERTY
DAMAGE -- insurance against liability for bodily injury and property damage
in respect of all vehicles (whether owned, hired or rented by the Parent or
any of its
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Subsidiaries) at any time located at, or used in connection
with, its Properties or operations in such amounts as are then customary
for vehicles used in connection with similar Properties and businesses, but
in any event to the extent required by applicable law.
(3) COMPREHENSIVE GENERAL LIABILITY INSURANCE -- insurance against
claims for bodily injury, death or Property damage occurring on, in or
about the Properties (and adjoining streets, sidewalks and waterways) of
the Parent and its Subsidiaries, in such amounts as are then customary for
Property similar in use in the jurisdictions where such Properties are
located.
(4) WORKERS' COMPENSATION INSURANCE -- workers' compensation
insurance or a qualified self-insurance program (including, without
limitation, Employers' Liability Insurance) to the extent required by
applicable law.
(5) PRODUCT LIABILITY INSURANCE -- insurance against claims for
bodily injury, death or Property damage resulting from the use of products
sold by the Parent or any of its Subsidiaries in such amounts as are then
customarily maintained by responsible persons engaged in businesses similar
to that of the Parent and its Subsidiaries.
(6) BUSINESS INTERRUPTION INSURANCE -- insurance against loss of
operating income by reason of any Peril in such amounts as are consistent
with the coverages in place on the date hereof.
(7) OTHER INSURANCE -- such other insurance, including, without
limitation, War-Risk Insurance when and to the extent obtainable from the
United States Government, in each case as generally carried by owners of
similar Properties in the jurisdictions where such Properties are located,
in such amounts and against such risks as are then customary for Property
similar in use.
Such insurance shall be written by financially responsible companies selected by
the Parent and having an A. M. Best rating of "A-" or better and being in a
financial size category of XI or larger, or by other companies acceptable to the
Majority Lenders, and (other than workers' compensation) shall name the
Administrative Agent as loss payee (to the extent covering risk of loss or
damage to tangible property) and as an additional named insured as its interests
may appear (to the extent covering any other risk). Each policy referred to in
this Section 9.04
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shall provide that it will not be canceled or reduced, or allowed to lapse
without renewal, except after not less than 30 days' notice to the
Administrative Agent and shall also provide that the interests of the
Administrative Agent and the Lenders shall not be invalidated by any act or
negligence of the Parent or any Person having an interest in any Property
covered by the Mortgage nor by occupancy or use of any such Property for
purposes more hazardous than permitted by such policy nor by any foreclosure
or other proceedings relating to such Property. The Parent will advise the
Administrative Agent promptly of any policy cancellation, reduction or
amendment.
On or before the Tender Offer Closing Date, the Parent will deliver to
the Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required to be
maintained by the Parent hereunder setting forth the respective coverages,
limits of liability, carrier, policy number and period of coverage and showing
that such insurance will remain in effect through the October 31 falling at
least one month after the date hereof, subject only to the payment of premiums
as they become due (and attaching original copies of any policies with respect
to casualty insurance). On or before the Merger Date, the Parent will deliver
to the Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required to be
maintained by the Parent hereunder with respect to Properties of CasTech and its
Subsidiaries, setting forth the respective coverages, limits of liability,
carrier, policy number and period of coverage and showing that such insurance
will remain in effect through the March 31 falling at least six months after the
date hereof, subject only to the payment of premiums as they become due (and
attaching original copies of any policies with respect to casualty insurance).
Thereafter, on each March 31 and October 31 in each year (commencing with the
first March 31 after the date hereof), the Parent will deliver to the
Administrative Agent certificates of insurance evidencing that all insurance
required to be maintained by the Parent hereunder will be in effect through the
following October 31 or March 31, as the case may be, subject only to the
payment of premiums as they become due. In addition, the Parent will not modify
any of the provisions of any policy with respect to casualty insurance without
delivering the original copy of the endorsement reflecting such modification to
the Administrative Agent accompanied by a written report of any firm of
independent insurance brokers of nationally recognized standing satisfactory to
the Administrative Agent, stating that, in their opinion, such policy (as so
modified) adequately protects the interests of the Lenders and the
Administrative
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Agent, is in compliance with the provisions of this Section 9.04, and is
comparable in all respects with insurance carried by responsible owners and
operators of Properties similar to those covered by the Mortgages. The
Parent will not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that required by this Section 9.04
unless the Administrative Agent is the named insured thereunder, with loss
payable as provided herein. The Parent will immediately notify the
Administrative Agent whenever any such separate insurance is obtained and
shall deliver to the Administrative Agent the certificates evidencing the
same.
Without limiting the obligations of the Parent under the foregoing
provisions of this Section 9.04, in the event the Parent shall fail to maintain
in full force and effect insurance as required by the foregoing provisions of
this Section 9.04, then the Administrative Agent may, but shall have no
obligation so to do, procure insurance covering the interests of the Lenders and
the Administrative Agent in such amounts and against such risks as the
Administrative Agent (or the Majority Lenders) shall deem appropriate, and the
Parent shall reimburse the Administrative Agent in respect of any premiums paid
by the Administrative Agent in respect thereof.
For purposes hereof, the term "PERIL" shall mean, collectively, fire,
lightning, flood, windstorm, hail, earthquake, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles and
smoke and all other perils covered by the "all-risk" endorsement then in use in
the jurisdictions where the Properties of the Parent and its Subsidiaries are
located.
Notwithstanding the foregoing, the Parent and each of its Subsidiaries may carry
a portion of the insurance required hereunder through self-insurance
arrangements with a Subsidiary described in Section 9.08(h) hereof, PROVIDED
that such self-insurance is maintained only in amounts and in a manner that is
prudent and consistent with current market practices for such insurance coverage
of corporations engaged in the same or similar business similarly situated.
9.05 PROHIBITION OF FUNDAMENTAL CHANGES.
(a) The Parent will not, nor will it permit any of its Subsidiaries
to, enter into any transaction of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution)
other than the Merger.
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(b) The Parent will not, nor will it permit any of its Subsidiaries
to, acquire any business or Property from, or Capital Stock of, or be a party to
any acquisition of, any Person except for (i) the Acquisition, (ii) purchases of
inventory and other Property to be sold or used in the ordinary course of
business, (iii) Investments permitted under Section 9.08(g) hereof, (iv) Capital
Expenditures permitted under Section 9.11 hereof and (v) Permitted Reinvestment
Capital Expenditures.
(c) The Parent will not, nor will it permit any of its Subsidiaries
to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or
a series of transactions, any part of its business or Property, whether now
owned or hereafter acquired, including, without limitation, Receivables and
leasehold interests, but excluding:
(i) obsolete or worn-out Property, tools or equipment no longer used
or useful in its business so long as the amount thereof sold in any single
fiscal year by the Parent and its Subsidiaries shall not have a fair market
value in excess of $750,000; and
(ii) any inventory or other Property sold or disposed of in the
ordinary course of business and on ordinary business terms;
(iii) (x) Receivables Sales pursuant to Permitted Receivables
Financings and (y) sales or transfers of Receivables and Related Assets for
purposes of collection in the ordinary course of business and consistent
with past practices;
(iv) other sales of Property for fair market value (as reasonably
determined by the Parent) for cash in an aggregate amount not exceeding
$2,000,000 in any fiscal year of the Parent, so long as the Net Available
Proceeds thereof are reinvested in replacement assets as provided in
Section 2.10(b)(2) hereof; and
(v) prior to the Merger Date, the CasTech Shares purchased by the
Parent or New CALC in connection with the Acquisition to the extent sold
for fair value in cash and such cash proceeds are deposited in the
Commonwealth Collateral Account and held therein until payment in full of
the Loans.
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(d) Notwithstanding the foregoing provisions of this Section 9.05:
(i) any Subsidiary of the Parent may be merged or consolidated with
or into: (x) the Parent if the Parent shall be the continuing or surviving
corporation or (y) any other such Subsidiary; PROVIDED that (1) if any such
transaction shall be between a Subsidiary and a Wholly Owned Subsidiary,
the Wholly Owned Subsidiary shall be the continuing or surviving
corporation and (2) that if any such transaction shall be between a
Subsidiary Guarantor and a Subsidiary not a Subsidiary Guarantor, and such
Subsidiary Guarantor is not the continuing or surviving corporation, then
the continuing or surviving corporation shall have assumed all of the
obligations of such Subsidiary Guarantor hereunder and under the other
Credit Documents; and
(ii) any Subsidiary of the Parent may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon voluntary liquidation
or otherwise) to the Parent or a Wholly Owned Subsidiary of the Parent;
PROVIDED that if any such sale is by a Subsidiary Guarantor to a Subsidiary
of the Parent not a Subsidiary Guarantor, then such Subsidiary shall have
assumed all of the obligations of such Subsidiary Guarantor hereunder and
under the other Credit Documents.
9.06 LIMITATION ON LIENS. The Parent will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of
Schedule V or in Part B of Schedule VI hereto (excluding, however,
following the making of the initial Loans hereunder, Liens securing
Indebtedness to be repaid with the proceeds of such Loans, as indicated on
said Schedules V and VI);
(c) Xxxxx imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is not
material with respect to it or its financial condition, adequate reserves
with respect thereto are maintained on the books of the Parent or the
affected Subsidiaries, as the case may be, in accordance with GAAP;
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(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in
good faith and by appropriate proceedings and Liens securing judgments but
only to the extent for an amount and for a period not resulting in an Event
of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property or minor imperfections in title thereto that, in the
aggregate, are not material in amount, and that do not in any case
materially interfere with the ordinary conduct of the business of the
Parent or any of its Subsidiaries;
(h) Liens on Property of any corporation that becomes a Subsidiary of
the Parent after the date hereof, PROVIDED that such Liens are in existence
at the time such corporation becomes a Subsidiary of the Parent and were
not created in anticipation thereof;
(i) Liens upon real and/or tangible personal Property acquired after
the date hereof (by purchase, construction or otherwise) by the Parent or
any of its Subsidiaries, each of which Liens either (A) existed on such
Property before the time of its acquisition and was not created in
anticipation thereof or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost (including the cost of construction) of such Property; PROVIDED that
(i) no such Lien shall extend to or cover any Property of the Parent or
such Subsidiary other than the Property so acquired and improvements
thereon and (ii) the principal amount of Indebtedness secured by any such
Lien shall at no time exceed 80% of the fair market value (as determined in
good
CREDIT AGREEMENT
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faith by a Responsible Officer of the Parent) of such Property at the
time it was acquired (by purchase, construction or otherwise);
(j) additional Liens upon real and/or personal Property created after
the date hereof, PROVIDED that the aggregate Indebtedness secured thereby
and incurred on and after the date hereof shall not exceed (i) at any time
prior to the General Trigger Date, $1,000,000 in the aggregate at any one
time outstanding and (ii) at any time on or after the General Trigger Date,
$5,000,000 in the aggregate at any one time outstanding;
(k) Liens upon Receivables and Related Assets to secure obligations
under Permitted Receivables Financings; and
(l) prior to the Merger Date, Liens on the CasTech Shares purchased
by the Parent or New CALC in connection with the Acquisition.
9.07 INDEBTEDNESS. The Parent will not, nor will it permit any of
its Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in Part A
of Schedule V hereto or in Part A of Schedule VI hereto (excluding,
however, following the making of the initial Loans hereunder, the
Indebtedness to be repaid with the proceeds of such Loans, as indicated on
said Schedules V and VI);
(c) (i) Indebtedness of the Parent in respect of the Senior
Subordinated Debt in an aggregate original principal amount not exceeding
$125,000,000, and (ii) subordinated Guarantees of such Indebtedness by
Subsidiaries of the Parent pursuant to the Senior Subordinated Debt
Documents;
(d) Indebtedness of Subsidiaries of the Parent to the Parent or to
other Subsidiaries of the Parent (other than a Subsidiary described in
Section 9.08(h) hereof);
(e) Indebtedness in an aggregate amount not exceeding $7,000,000
owing by the Parent and/or certain of its Subsidiaries to Lockheed Xxxxxx
Corporation pursuant to
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agreements relating to the reimbursement for certain environmental costs;
(f) obligations of the Parent and its Subsidiaries under Permitted
Receivables Financings;
(g) additional Indebtedness of Subsidiaries of the Parent incurred
after the Merger Date (including, without limitation, Capital Lease
Obligations and other Indebtedness secured by Liens permitted under Section
9.06(i) or 9.06(j) hereof) up to but not exceeding (i) at any time prior to
the General Trigger Date, $1,000,000 in the aggregate at any one time
outstanding and (ii) at any time on or after the General Trigger Date,
$5,000,000 in the aggregate at any one time outstanding; and
(h) obligations in respect of Interest Rate Protection Agreements and
Commodity Hedge Agreements (to the extent the same constitute Indebtedness)
permitted under Section 9.08(e) hereof.
9.08 INVESTMENTS. The Parent will not, nor will it permit any of its
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the date hereof and identified in Part
C of Schedule XIII hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Parent in the Borrowers;
(e) (i) over-the-counter Interest Rate Protection Agreements with one
or more of the Lenders (and/or with a bank or other financial institution
having capital, surplus and undivided profits of at least $500,000,000) as
to an aggregate notional principal amount not at any time exceeding
$150,000,000; and (ii) Commodity Hedge Agreements to the extent permitted
under Section 9.21 hereof;
(f) loans or advances made to employees of the Parent or any of its
Subsidiaries in the ordinary course of business and in furtherance of the
Parent's business in an aggregate amount not exceeding $4,000,000 at any
time outstanding;
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(g) in the event the Parent or any of its Subsidiaries maintains any
unfunded deferred compensation plan (within the meaning of Title I of
ERISA), to the extent benefits under such plan are defined by reference to
specific investments, whether at the participant's or the beneficiaries'
election or otherwise, any Investment in such a specific investment;
(h) Investments not to exceed $3,000,000 in the aggregate in one or
more Subsidiaries of the Parent organized solely for the purpose of
permitting the Parent and its Subsidiaries to self-insure in a usual and
customary manner consistent with current market practices for self-
insurance programs of corporations engaged in the same or similar business
similarly situated;
(i) additional Investments up to but not exceeding $5,000,000 in the
aggregate; and
(j) Investments constituting capitalization of Securitization
Subsidiaries consistent with normal practice for transactions of such type.
9.09 DIVIDEND PAYMENTS. The Parent will not, nor will it permit any
of its Subsidiaries to, declare or make any Dividend Payment at any time;
PROVIDED that the Parent may:
(a) at any time after the Merger Date, declare and make Dividend
Payments in cash, subject to the satisfaction of each of the following
conditions on the date of such Dividend Payment and after giving effect
thereto:
(i) no Default shall have occurred and be continuing;
(ii) the aggregate amount of Dividend Payments made in the
form of cash dividends on the Capital Stock of the Parent during the
then-current fiscal quarter of the Parent shall not exceed $600,000;
and
(iii) the Parent shall have delivered to each Lender, at least
10 Business Days (but not more than 20 Business Days) prior to the
date of the proposed Dividend Payment, a certificate of a Responsible
Officer of the Parent setting forth computations in reasonable detail
demonstrating satisfaction of the foregoing conditions as at the date
of such certificate;
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(b) at any time after the Merger Date, make Stock Repurchases in
cash, subject to the satisfaction of each of the following conditions on
the date of such Stock Repurchase and after giving effect thereto:
(i) no Default shall have occurred and be continuing;
(ii) at any time prior to the General Trigger Date, the
aggregate amount of Stock Repurchases made in any twelve-month period
shall not exceed $3,000,000; and
(iii) at any time from and after the General Trigger Date, the
aggregate amount of Stock Repurchases made in any twelve-month period
shall not exceed $8,000,000; and
(c) at any time after the Merger Date, make Employee Stock
Repurchases in cash, subject to the satisfaction of each of the following
conditions on the date of such Employee Stock Repurchase and after giving
effect thereto:
(i) no Default shall have occurred and be continuing; and
(ii) the aggregate amount of all Employee Stock Repurchases
made after the date hereof shall not exceed $6,000,000.
This Section 9.09 shall in any event not prohibit: (w) the consummation of the
Acquisition; (x) the payment of any dividend by the Parent within 60 days after
the date of declaration thereof if, at such date of declaration, such payment
would comply with the foregoing paragraph; (y) the redemption of any Stock
Purchase Rights issued under the Stockholder Protection Rights Agreement; and
(z) the payment of dividends by any Subsidiary of the Parent to the Parent or to
any other Subsidiary of the Parent.
9.10 CERTAIN FINANCIAL COVENANTS.
(a) LEVERAGE RATIOS.
(i) The Parent will not permit the Senior Leverage Ratio to exceed
the following respective ratios at any time during the following respective
periods:
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Period Ratio
------ -----
From and including the first
Delivery Date after the date
hereof through but excluding
the first Delivery Date after
December 31, 1996 3.70 to 1.00
From and including the first
Delivery Date after
December 31, 1996 through
but excluding the first
Delivery Date after
March 31, 1997 3.50 to 1.00
From and including the first
Delivery Date after
March 31, 1997 through
but excluding the first
Delivery Date after
June 30, 1997 3.00 to 1.00
From and including the first
Delivery Date after
June 30, 1997 through
but excluding the first
Delivery Date after
September 30, 1997 2.80 to 1.00
From and including the first
Delivery Date after
September 30, 1997 through
but excluding the first
Delivery Date after
December 31, 1997 2.70 to 1.00
From and including the first
Delivery Date after
December 31, 1997 through
but excluding the first
Delivery Date after
March 31, 1998 2.50 to 1.00
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From and including the first
Delivery Date after
March 31, 1998 through
but excluding the first
Delivery Date after
June 30, 1998 2.40 to 1.00
From and including the first
Delivery Date after
June 30, 1998 through
but excluding the first
Delivery Date after
September 30, 1998 2.30 to 1.00
From and after the first
Delivery Date after
September 30, 1998 2.20 to 1.00
(ii) The Parent will not permit the Total Leverage Ratio to exceed
the following respective ratios at any time during the following respective
periods:
Period Ratio
------- -----
From and including the first
Delivery Date after the date
hereof through but excluding
the first Delivery Date after
December 31, 1996 5.50 to 1.00
From and including the first
Delivery Date after
December 31, 1996 through
but excluding the first
Delivery Date after
March 31, 1997 5.20 to 1.00
From and including the first
Delivery Date after
March 31, 1997 through
but excluding the first
Delivery Date after
June 30, 1997 4.40 to 1.00
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From and including the first
Delivery Date after
June 30, 1997 through
but excluding the first
Delivery Date after
September 30, 1997 4.20 to 1.00
From and including the first
Delivery Date after
September 30, 1997 through
but excluding the first
Delivery Date after
December 31, 1997 4.00 to 1.00
From and including the first
Delivery Date after
December 31, 1997 through
but excluding the first
Delivery Date after
March 31, 1998 3.80 to 1.00
From and including the first
Delivery Date after
March 31, 1998 through
but excluding the first
Delivery Date after
June 30, 1998 3.60 to 1.00
From and including the first
Delivery Date after
June 30, 1998 through
but excluding the first
Delivery Date after
September 30, 1998 3.40 to 1.00
From and including the first
Delivery Date after
September 30, 1998 through
but excluding the first
Delivery Date after
December 31, 1998 3.30 to 1.00
From and after the first
Delivery Date after
December 31, 1998 3.30 to 1.00
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(b) INTEREST COVERAGE RATIOS.
(i) The Parent will not permit the Senior Interest Coverage Ratio to
be less than the following respective ratios at any time during the following
respective periods:
Period Ratio
------ -----
From the date hereof
through December 31, 1996 3.80 to 1.00
From January 1, 1997
through March 31, 1997 3.80 to 1.00
From April 1, 1997
through June 30, 1997 4.50 to 1.00
From July 1, 1997
through September 30, 1997 4.80 to 1.00
From October 1, 1997
through December 31, 1997 4.90 to 1.00
From January 1, 1998
through March 31, 1998 5.00 to 1.00
From April 1, 1998
through June 30, 1998 5.30 to 1.00
From July 1, 1998
through September 30, 1998 5.60 to 1.00
From October 1, 1998
through December 31, 1998 5.80 to 1.00
From January 1, 1999
and at all times thereafter 5.80 to 1.00
(ii) The Parent will not permit the Total Interest Coverage Ratio to
be less than the following respective ratios at any time during the following
respective periods:
Period Ratio
------ -----
From the date hereof
through December 31, 1996 2.20 to 1.00
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From January 1, 1997
through March 31, 1997 2.20 to 1.00
From April 1, 1997
through June 30, 1997 2.60 to 1.00
From July 1, 1997
through September 30, 1997 2.80 to 1.00
From October 1, 1997
through December 31, 1997 2.80 to 1.00
From January 1, 1998
through March 31, 1998 2.90 to 1.00
From April 1, 1998
through June 30, 1998 3.00 to 1.00
From July 1, 1998
through September 30, 1998 3.20 to 1.00
From October 1, 1998
through December 31, 1998 3.30 to 1.00
From January 1, 1999
and at all times thereafter 3.30 to 1.00
(c) MINIMUM TTM EBITDA. The Parent will not permit TTM EBITDA as at
any day during the following respective periods to be less than the following
respective amounts:
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Period Amount
------ ------
From the date hereof
through December 31, 1996 $ 70,000,000
From January 1, 1997
through March 31, 1997 $ 75,000,000
From April 1, 1997
through June 30, 1997 $ 80,000,000
From July 1, 1997
through September 30, 1997 $ 85,000,000
From October 1, 1997
through December 31, 1997 $ 90,000,000
From January 1, 1998
and at all times thereafter $100,000,000
(d) FIXED CHARGES RATIO. The Parent will not permit the Fixed
Charges Ratio to be less than the following respective ratios at any time during
the following respective periods:
Period Ratio
------ -----
From the date hereof
through December 31, 1996 1.70 to 1.00
From January 1, 1997
through March 31, 1997 1.80 to 1.00
From April 1, 1997
through June 30, 1997 1.80 to 1.00
From July 1, 1997
through September 30, 1997 1.80 to 1.00
From October 1, 1997
through December 31, 1997 1.80 to 1.00
From January 1, 1998
and at all times thereafter 1.90 to 1.00
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9.11 CAPITAL EXPENDITURES. The Parent will not permit the aggregate
amount of Capital Expenditures (other than Permitted Reinvestment Capital
Expenditures) by the Parent and its Subsidiaries to exceed the following
respective amounts for the following respective periods:
Period Amount
------ ------
From the date hereof
through December 31, 1996 $ 8,000,000
Each fiscal year of the Parent
ending thereafter $38,000,000
If the aggregate amount of Capital Expenditures for any period set forth in the
schedule above shall be less than the amount set forth opposite such period in
the schedule above, then the shortfall shall be added to the amount of Capital
Expenditures permitted for the immediately succeeding (but not any other) period
and, for purposes hereof, the amount of Capital Expenditures made during any
period shall be deemed to have been made first from the permitted amount for
such period set forth in the schedule above and last from the amount of any
carryover from any previous period.
9.12 INTEREST RATE PROTECTION AGREEMENTS. The Parent will within 90
days of the Initial Borrowing Date enter into, and thereafter maintain in full
force and effect, one or more over-the-counter Interest Rate Protection
Agreements with one or more of the Lenders (and/or with a bank or other
financial institution having capital, surplus and undivided profits of at least
$500,000,000), that effectively enables the Borrowers (in a manner satisfactory
to the Administrative Agent) to protect itself against three-month London
interbank offered rates exceeding 8% per annum as to a notional principal amount
at least equal to $95,000,000 initially (which amount may be subject to
amortization) for a period of at least 3 years measured from the Initial
Borrowing Date.
9.13 SUBORDINATED INDEBTEDNESS. The Parent will not, nor will it
permit any of its Subsidiaries to, purchase, redeem, retire or otherwise acquire
for value, or set apart any money for a sinking, defeasance or other analogous
fund for the purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Subordinated Indebtedness, except for
regularly scheduled payments or prepayments of principal and interest in respect
thereof required
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pursuant to the instruments evidencing such Subordinated Indebtedness.
9.14 LINES OF BUSINESS. The Parent will not, nor will it permit any
of its Subsidiaries to, engage to any substantial extent in any line or lines of
business activity other than the Aluminum Business.
9.15 TRANSACTIONS WITH AFFILIATES. Except as expressly permitted by
this Agreement, the Parent will not, nor will it permit any of its Subsidiaries
to, directly or indirectly:
(a) make any Investment in an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate;
(c) merge into or consolidate with or purchase or acquire Property
from an Affiliate; or
(d) enter into any other transaction directly or indirectly with or
for the benefit of an Affiliate (including, without limitation, Guarantees
and assumptions of obligations of an Affiliate);
PROVIDED that (i) any Affiliate who is an individual may serve as a director,
officer or employee of the Parent or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity, (ii) the
Parent and its Subsidiaries may enter into transactions (other than extensions
of credit by the Parent or any of its Subsidiaries to an Affiliate) providing
for the leasing of Property, the rendering or receipt of services or the
purchase or sale of inventory and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Parent and its Subsidiaries as the monetary
or business consideration that would obtain in a comparable transaction with a
Person not an Affiliate and (iii) transactions in connection with a Permitted
Receivables Financing.
9.16 USE OF PROCEEDS. The Borrowers will use the proceeds of the
Loans hereunder solely as follows:
(a) The proceeds of the Tender Offer Term Loans will be used solely
(i) to make loans to New CALC pursuant to the New CALC Note Documents to
fund the purchase by New CALC of the CasTech Shares pursuant to the Tender
Offer, (ii) to
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refinance existing Indebtedness of the Parent and its
Subsidiaries and (iii) to pay certain transaction fees and expenses.
(b) The proceeds of the Tender Offer CALI Revolving Credit Loans will
be used solely (i) to make loans to New CALC pursuant to the New CALC Note
Documents to fund the purchase by New CALC of the CasTech Shares pursuant
to the Tender Offer, (ii) to refinance existing Indebtedness of the Parent
and its Subsidiaries and (iii) to pay certain transaction fees and expenses
and, after the Tender Offer Closing Date, to finance the ongoing working
capital requirements and other general corporate purposes of the Borrowers
and their respective Subsidiaries.
(c) The proceeds of the Tender Offer CasTech Revolving Credit Loans
will be used solely (i) to refinance existing Indebtedness of CasTech and
its Subsidiaries and (ii) on and after the Tender Offer Closing Date, to
finance the ongoing working capital requirements and other general
corporate purposes of CasTech and its Subsidiaries.
(d) The proceeds of the Post-Merger Term Loans will be used solely to
refinance Tender Offer Term Loans and to fund other costs of the
Acquisition payable on the Merger Date.
(e) The proceeds of the Post-Merger Revolving Credit Loans will be
used solely to refinance Tender Offer Term Loans and to fund other costs of
the Acquisition payable on the Merger Date and, after the Merger Date, to
finance the ongoing working capital requirements and other general
corporate purposes of the Borrowers and their respective Subsidiaries.
The Borrowers will use the proceeds of the Loans in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulations G, T, U and X and the Securities Act of 1933 and the Securities
Exchange Act of 1934 and the regulations thereunder; PROVIDED that neither the
Administrative Agent nor any Lender shall have any responsibility as to the use
of any of such proceeds.
9.17 CERTAIN OBLIGATIONS RESPECTING SUBSIDIARIES.
(a) SUBSIDIARY GUARANTORS. In the event that the Parent or any of
its Subsidiaries shall form or acquire any new Subsidiary (other than a
Securitization Subsidiary) that the Parent or the respective Subsidiary
anticipates will not be an
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Immaterial Subsidiary (or, in the event that any Immaterial Subsidiary (other
than a Securitization Subsidiary) shall cease to be an Immaterial
Subsidiary), the Parent will cause such new Subsidiary (or such Immaterial
Subsidiary that ceases to be an Immaterial Subsidiary) to become a
"Subsidiary Guarantor" (and, thereby, an "Obligor") hereunder, and to pledge
and grant a security interest in its Property pursuant to the Security
Documents to the Administrative Agent for the benefit of the Lenders,
pursuant to a written instrument in form and substance satisfactory to the
Administrative Agent and to deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by each "Obligor" pursuant to Section 7.01
hereof upon the Tender Offer Closing Date or as the Administrative Agent
shall have requested.
(b) OWNERSHIP OF SUBSIDIARIES. The Parent will, and will cause each
of its Subsidiaries to, take such action from time to time as shall be necessary
to ensure that each of its Subsidiaries is a Wholly Owned Subsidiary. In the
event that any additional shares of stock shall be issued by any Subsidiary, the
respective Obligor agrees forthwith to deliver to the Administrative Agent
pursuant to the Security Documents the certificates evidencing such shares of
stock, accompanied by undated stock powers executed in blank and to take such
other action as the Administrative Agent shall request to perfect the security
interest created therein pursuant to the Security Documents.
(c) CERTAIN RESTRICTIONS. Other than pursuant to the Senior
Subordinated Debt Documents or in connection with transactions related to a
Permitted Receivables Financing, the Obligors will not permit any of their
respective Subsidiaries to enter into, after the date hereof, any indenture,
agreement, instrument or other arrangement that, directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining, or
imposes materially adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment of dividends,
the making of loans, advances or Investments or the sale, assignment, transfer
or other disposition of Property.
9.18 CERTAIN POST-CLOSING REAL ESTATE MATTERS. The Parent shall, and
shall cause each of its Subsidiaries to, execute, deliver and record such
Mortgages, agreements, documents and other instruments, and to take such other
action (including, without limitation, obtaining title insurance policies,
surveys, certificates of occupancy, opinions of local counsel and
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necessary third party consents), as the Administrative Agent shall request in
order to grant to the Administrative Agent, on or prior to October 30, 1996,
perfected first priority Liens on each of the Properties identified on
Schedules XV and XVI hereto to the extent the Administrative Agent did not
require the same to be delivered on or prior to the Tender Offer Closing Date
or the Merger Date pursuant to Sections 7.01(m) and 7.03(d) hereof,
respectively.
9.19 MODIFICATIONS OF CERTAIN DOCUMENTS.
(a) No Obligor will consent to any modification, supplement or waiver
of any of the provisions of the Acquisition Documents, the New CALC Note
Documents, the Senior Subordinated Debt Documents, any other documents providing
for or relating to Subordinated Indebtedness, or terminate the Merger Agreement,
without the prior approval of the Majority Lenders.
(b) No Obligor will take any action to modify or supplement its
articles of incorporation or the articles of incorporation of any of its
Subsidiaries, other than modifications that do not adversely affect the
interests of the Lenders, without the prior approval of the Majority Lenders.
9.20 CONSUMMATION OF THE MERGER. The Parent will cause the Merger to
be consummated as promptly as practicable after the Tender Offer Closing Date
but in any event not later than March 19, 1997. Without limiting the foregoing,
if New CALC shall acquire at least 90% of the issued and outstanding CasTech
Shares, the Parent and New CALC will effect the Merger without a meeting of the
stockholders of CasTech within five days of the Tender Offer Closing Date.
9.21 COMMODITY HEDGING ACTIVITIES. The Parent shall not, and shall
not permit any of its Subsidiaries to, enter into any commodity futures
contract, commodity option or other similar agreement or arrangement
(collectively, "COMMODITY HEDGE AGREEMENTS"), except the Parent and its
Subsidiaries may enter into Hedge Agreements designed to protect the Parent and
its Subsidiaries against fluctuations in the price of aluminum and commodities
used in the Aluminum Business and prices associated with customer forward sales
contracts and purchase commitments, so long as the same (a) is consistent with
the relevant Obligor's past practice or then-current industry practice in the
markets in which such Obligor operates and (b) is in accordance with the
Parent's "Price Risk Program: Briefing Summary", as the same may be amended
from time to time.
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9.22 AFTER-ACQUIRED REAL ESTATE. If any Obligor or any of its
Subsidiaries shall acquire any real property, or shall lease any real property
that is material to the operation of its business, after the Initial Borrowing
Date, other than any real property encumbered by Liens permitted by Section
9.06(i) hereof, such Obligor or such Subsidiary, as the case may be, shall
promptly execute a Mortgage covering such real property, together with such
surveys, title insurance policies and endorsements, certificates of occupancy
and such other agreements, estoppels and consents (including agreements with
lessors) as the Administrative Agent may request, and shall deliver opinions of
local counsel and other documents as is consistent with those delivered with
respect to each Mortgage pursuant to Section 7.01(m) hereof upon the Tender
Offer Closing Date or as the Administrative Agent shall have requested.
9.23 ACTIVITIES OF THE PARENT AND NEW CALC.
(a) The Parent (i) will at all times own, beneficially and of record,
all of the issued and outstanding Capital Stock of each of CALI, New CALC and
(from and after the Merger Date) CasTech (PROVIDED that this Section 9.23(a)(i)
shall not prohibit any transaction expressly permitted under Section 9.05
hereof), (ii) will own no other Property (other than cash and Permitted
Investments, other Property incidental to its business as a holding company and
Capital Stock of its Subsidiaries), (iii) will have no Indebtedness (other than
Indebtedness hereunder and Indebtedness in respect of Subordinated Indebtedness
permitted under Section 9.07 hereof), (iv) will have no operations other than de
minimis operations incidental to its business as a holding company and (v) in
furtherance of the foregoing will not make any expenditures or incur any
liabilities other than those consistent with and reasonably necessary in the
conduct of the business of the Parent as contemplated by this paragraph (a).
(b) Prior to the Merger Date, New CALC (i) will own no Property
(other than CasTech Shares, cash and Permitted Investments, other Property
incidental to its ownership of CasTech Shares), (ii) will have no Indebtedness
(other than Indebtedness hereunder, Indebtedness under the New CALC Notes and
obligations under the Acquisition Documents) and (iii) will have no operations
other than de minimis operations incidental to its activities in connection with
the Acquisition.
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Section 10. EVENTS OF DEFAULT. If one or more of the following
events (herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) Any Obligor shall: (i) default in the payment of any principal
of any Loan or any Reimbursement Obligation when due (whether at stated
maturity or at mandatory or optional prepayment); or (ii) default in the
payment of any interest on any Loan, any fee or any other amount payable by
it hereunder or under any other Credit Document when due and such default
shall have continued unremedied for three or more days; or
(b) The Parent or any of its Subsidiaries (herein collectively called
the "RELEVANT PARTIES") shall default in the payment when due of any
principal of or interest on any of its other Indebtedness having a
principal amount of $1,000,000 or more individually or $2,000,000 or
more for all Relevant Parties and their Subsidiaries in the aggregate; or
any event specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness (other than any such
Indebtedness owed to any Lender or any affiliate of any Lender if such
event shall relate solely to a restriction on Margin Stock (a "MARGIN STOCK
EVENT")) shall occur if the effect of such event is to cause, or (with the
giving of any notice or the lapse of time or both) to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, such Indebtedness to become due, or to be
prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity or to have the interest rate
thereon reset to a level so that securities evidencing such Indebtedness
trade at a level specified in relation to the par value thereof; or any
Relevant Party shall default in the payment when due of any individual
amount of $1,000,000 or more (or of amounts aggregating $2,000,000 or more)
under any Interest Rate Protection Agreement; or any event (other than a
Margin Stock Event) specified in any Interest Rate Protection Agreement
shall occur if the effect of such event is to cause, or (with the giving of
any notice or the lapse of time or both) to permit, any individual
termination or liquidation payment in an amount of $1,000,000 or more (or
any termination or liquidation payments aggregating $2,000,000 or more) to
become due; or
(c) Any representation, warranty or certification made or deemed made
herein or in any other Basic Document (or in
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any modification or supplement hereto or thereto) by any Obligor
party thereto, or any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof or thereof,
shall prove to have been false or misleading as of the time made or
furnished in any material respect; or
(d) The Parent or any of the other Obligors (as applicable) shall
default in the performance of any of its obligations under any of Sections
9.01(f), 9.01(h), 9.05, 9.06, 9.07, 9.08, 9.09, 9.10, 9.11, 9.13, 9.15,
9.17(b), 9.18, 9.19, 9.20, 9.22 or 9.23 hereof or any Obligor shall default
in the performance of any of its obligations under Section 4.02 or 5.02 of
the Security Agreement, Section 4.02 or 5.02 of the Pledge Agreement,
Section 4.02 or 5.02 of the CasTech Pledge and Security Agreement or any
provisions of any Mortgage; or any Obligor shall default in the performance
of any of its other obligations in this Agreement or any other Credit
Document and such default shall continue unremedied for a period of thirty
or more days after notice thereof to the Parent by the Administrative Agent
or any Lender (through the Administrative Agent); or
(e) Any Relevant Party shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) Any Relevant Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial part
of its Property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy Code,
(iv) file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of debts,
(v) fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under the
Bankruptcy Code or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the affected Relevant Party, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or
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winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a receiver, custodian, trustee, examiner,
liquidator or the like of such Relevant Party or of all or any substantial
part of its Property or (iii) similar relief in respect of such Relevant
Party under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed and
in effect, for a period of 60 or more days; or an order for relief against
any Relevant Party shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money of
$250,000 or more in the aggregate (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in respect of
such judgment) or of $500,000 or more in the aggregate (regardless of
insurance coverage) shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against any Relevant Party
and the same shall not be paid discharged (or provision shall not be made
for such payment or discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and such Relevant
Party shall not, within said period of 30 days, or such longer period
during which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions specified in said Section 9.01(e), any Obligor or any ERISA
Affiliate shall incur or in the opinion of the Majority Lenders shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan or
the PBGC (or any combination of the foregoing) that, in the reasonable
determination of the Majority Lenders, could reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect; or
(j) There shall have been asserted against the Parent or any of its
Subsidiaries, or any predecessor in interest thereof, an Environmental
Claim that, in the judgment of the Majority Lenders is reasonably likely to
be determined adversely to the Parent or any of its Subsidiaries, and the
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amount thereof (either individually or in the aggregate) is reasonably
likely to have a Material Adverse Effect (insofar as such amount is payable
by the Parent or any of its Subsidiaries, but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor or the amount of funded
reserves which have been established that do not cause, or are not
reasonably likely to cause, a breach of any other provision of this
Agreement); or
(k) The Liens created by the Security Documents shall at any time not
(other than by reason of the action or inaction by the Administrative
Agent) constitute a valid and perfected Lien on the collateral intended to
be covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent, free and clear of all other Liens (other than Liens
permitted under Section 9.06 hereof or under the respective Security
Documents), or, except for expiration in accordance with its terms, any of
the Security Documents shall for whatever reason be terminated or cease to
be in full force and effect, or the enforceability thereof shall be
contested by any Obligor;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10 with respect to any Obligor, the
Administrative Agent may, by notice to the Parent, terminate the Commitments
(including the Swingline Commitment) and/or declare the principal amount then
outstanding of, and the accrued interest on, the Loans (including all Swingline
Loans), the Reimbursement Obligations and all other amounts payable by the
Obligors hereunder and under the Notes and the other Credit Documents
(including, without limitation, any amounts payable under Section 5.05 or 5.06
hereof) to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor; and (2) in the case of the occurrence of an Event of Default referred
to in clause (f) or (g) of this Section 10 with respect to any Obligor, the
Commitments (including the Swingline Commitment) shall automatically be
terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans (including all Swingline Loans), the Reimbursement
Obligations and all other amounts payable by the Obligors hereunder and under
the Notes and the other Credit Documents (including, without limitation, any
amounts payable under Section 5.05 or 5.06 hereof) shall automatically become
immediately due and payable without
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presentment, demand, protest or other formalities of any kind, all of which
are hereby expressly waived by each Obligor.
In addition, upon the occurrence and during the continuance of any
Event of Default (if the Administrative Agent has declared the principal amount
then outstanding of, and accrued interest on, the Revolving Credit Loans and all
other amounts payable by the Obligors hereunder and under the Notes to be due
and payable), each Revolving Credit Borrower agrees that it shall, if requested
by the Administrative Agent or the Majority Revolving Credit Lenders through the
Administrative Agent (and, in the case of any Event of Default referred to in
clause (f) or (g) of this Section 10 with respect to such Borrower, forthwith,
without any demand or the taking of any other action by the Administrative Agent
or such Lenders) provide cover for the Letter of Credit Liabilities under such
Borrower's Revolving Credit Facility by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit under such Facility, which funds shall be
held by the Administrative Agent in one or more of the Collateral Accounts as
collateral security in the first instance for the Letter of Credit Liabilities
under such Facility and be subject to withdrawal only as therein provided.
Section 11. THE ADMINISTRATIVE AGENT.
11.01 APPOINTMENT, XXXXXX AND IMMUNITIES. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Credit Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of Section 11.06 hereof
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Credit Documents, and shall
not by reason of this Agreement or any other Credit Document be a trustee
for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in
any other Credit Document,
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or in any certificate or other document referred to or provided
for in, or received by any of them under, this Agreement or
any other Credit Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Note or
any other Credit Document or any other document referred to or provided for
herein or therein or for any failure by the Parent or any other Person to
perform any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the
Majority Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Credit Document; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Credit Document or under any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or
willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Parent to
such assignment or transfer (to the extent required by Section 12.06(b) hereof).
11.02 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Credit Document, the Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Majority
Lenders or, if provided herein, in accordance with the instructions given by all
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of the Lenders as is required in such circumstance, and such instructions of
such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders.
11.03 DEFAULTS. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Parent specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 11.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders,
PROVIDED that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Lenders except to
the extent that this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of the Majority
Lenders or all of the Lenders.
11.04 RIGHTS AS A LENDER. With respect to its Commitments and the
Loans made by it, NatWest (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. NatWest (and any successor acting as Administrative Agent)
and its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and NatWest (and any such successor) and its affiliates may accept fees
and other consideration from the Obligors for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
11.05 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 hereof,
but without limiting the obligations of the Parent under said Section 12.03)
ratably in accordance with the aggregate principal amount of the Loans and
Reimbursement Obligations held by the Lenders (or, if no Loans or Reimbursement
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Obligations are at the time outstanding, ratably in accordance with their
respective Notes), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent (including by any Lender) arising out of or by
reason of any investigation in or in any way relating to or arising out of this
Agreement or any other Credit Document or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that the Borrowers are
obligated to pay under Section 12.03 hereof, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents, PROVIDED that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
11.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Parent, CALI, New CALC, CasTech and their respective Subsidiaries and made its
own decision to enter into this Agreement and that it will, independently and
without reliance upon the Administrative 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 analysis and decisions in taking or not taking action
under this Agreement or under any other Credit Document. The Administrative
Agent shall not be required to keep itself informed as to the performance or
observance by any Obligor of this Agreement or any of the other Credit Documents
or any other document referred to or provided for herein or therein or to
inspect the Properties or books of the Parent, CALI, New CALC, CasTech or any of
their respective Subsidiaries. Except for notices, reports and other documents
and information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or under the Security Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Parent, CALI, New CALC, CasTech or any of their
respective Subsidiaries (or any of their affiliates) that may come into the
possession of the Administrative Agent or any of its affiliates.
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11.07 FAILURE TO ACT. Except for action expressly required of the
Administrative Agent hereunder and under the other Credit Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Parent and the Borrowers, and the Administrative Agent
may be removed at any time with or without cause by the Majority Xxxxxxx. Upon
any such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Xxxxxxx and shall have accepted
such appointment within 30 days after the retiring Administrative Agent's giving
of notice of resignation or the Majority Xxxxxxx' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Section 11
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
11.09 CONSENTS UNDER OTHER CREDIT DOCUMENTS. Except as otherwise
provided in Section 12.04 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Credit Documents, PROVIDED that, without the prior consent of each Lender,
the Administrative Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Security Document
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providing for collateral security, agree to additional obligations being
secured by such collateral security (unless the Lien for such additional
obligations shall be junior to the Lien in favor of the other obligations
secured by such Security Document, in which event the Administrative Agent
may consent to such junior Lien provided that it obtains the consent of the
Majority Lenders thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents or
release any guarantor under any Security Document from its guarantee
obligations thereunder, except that no such consent shall be required, and
the Administrative Agent is hereby authorized, to release any Lien covering
Property (and to release any such guarantor) that is the subject of either a
disposition of Property permitted hereunder (including, without limitation,
dispositions of Receivables and Related Assets pursuant to Permitted
Receivables Financings) or a disposition to which the Majority Lenders have
consented.
11.10 COLLATERAL SUB-AGENTS. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Commonwealth Pledge and Security Agreement and Section 4.03 of the CasTech
Pledge and Security Agreement, that, in the event it shall hold any Permitted
Investments referred to therein, such Permitted Investments shall be held in the
name and under the control of such Lender, and such Lender shall hold such
Permitted Investments as a collateral sub-agent for the Administrative Agent
thereunder. The Obligors by their execution and delivery of this Agreement
hereby consent to the foregoing.
Section 12. MISCELLANEOUS.
12.01 WAIVER. No failure on the part of the Administrative Agent or
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
12.02 NOTICES. All notices, requests and other communications
provided for herein and under the Security Documents (including, without
limitation, any modifications of, or waivers, requests or consents under, this
Agreement) shall be
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given or made in writing (including, without limitation, by telecopy)
delivered to the intended recipient:
(a) in the case of each of the Obligors, at the "Address for Notices"
specified below the name of the Parent on the signature pages hereof;
(b) in the case of the Administrative Agent, at the "Address for
Notices" specified below the name of the Administrative Agent on the
signature pages hereof; and
(c) in the case of any Lender, at its address (or telecopy number)
set forth in its Administrative Questionnaire;
or, as to any party, at such other address as shall be designated by such party
in a notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
12.03 EXPENSES, ETC. The Parent and the Borrowers agree jointly and
severally to pay or reimburse each of the Lenders and the Administrative Agent
for: (a) all reasonable out-of-pocket costs and expenses of the Administrative
Agent (including, without limitation, the reasonable fees and expenses of
Milbank, Tweed, Xxxxxx & XxXxxx, special New York counsel to NatWest) in
connection with (i) the negotiation, preparation, execution and delivery of this
Agreement and the other Credit Documents and the extension of credit hereunder
and (ii) the negotiation or preparation of any modification, supplement or
waiver of any of the terms of this Agreement or any of the other Credit
Documents (whether or not consummated); (b) all reasonable out-of-pocket costs
and expenses of the Lenders and the Administrative Agent (including, without
limitation, the reasonable fees and expenses of legal counsel) in connection
with (i) any Default and any enforcement or collection proceedings resulting
therefrom, including, without limitation, all manner of participation in or
other involvement with (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, (y) judicial or regulatory proceedings
and (z) workout, restructuring or other negotiations or proceedings (whether or
not the workout, restructuring or transaction contemplated thereby is
consummated) and (ii) the enforcement of this Section 12.03; (c) all transfer,
stamp, documentary or other similar taxes, assessments or charges levied by any
governmental
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or revenue authority in respect of this Agreement or any of the
other Credit Documents or any other document referred to herein or therein and
all costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein;
and (d) all costs, expenses and other charges in respect of title insurance
procured with respect to the Liens created pursuant to the Mortgages.
The Parent and the Borrowers hereby agree jointly and severally to
indemnify the Administrative Agent and each Lender and their respective
directors, officers, employees, attorneys and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages or expenses
incurred by any of them (including, without limitation, any and all losses,
liabilities, claims, damages or expenses incurred by the Administrative Agent to
any Lender, whether or not the Administrative Agent or any Lender is a party
thereto) arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Obligors of any of its Subsidiaries of the proceeds of any
of the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified or such
Person's directors, officers, employees, attorneys or agents). Without limiting
the generality of the foregoing, the Parent and the Borrowers jointly and
severally will indemnify the Administrative Agent and each Lender from, and hold
the Administrative Agent and each Lender harmless against, any losses,
liabilities, claims, damages or expenses described in the preceding sentence
(including any Lien filed against any Property covered by the Mortgages or any
part of the Mortgage Estate thereunder in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental Law
as a result of the past, present or future operations of the Parent or any of
its Subsidiaries (or any predecessor in interest to the Parent or any of its
Subsidiaries), or the past, present or future condition of any site or facility
owned, operated or leased at any time by the Parent or any of its Subsidiaries
(or any such predecessor in interest), or any Release or threatened
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Release of any Hazardous Materials at or from any such site or facility,
excluding any such Release or threatened Release that shall occur during any
period when the Administrative Agent or any Lender shall be in possession of
any such site or facility following the exercise by the Administrative Agent
or any Lender of any of its rights and remedies hereunder or under any of the
Security Documents, but including any such Release or threatened Release
occurring during such period that is a continuation of conditions previously
in existence, or of practices employed by the Parent and its Subsidiaries, at
such site or facility.
12.04 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only after written notice to all Lenders and by an instrument in writing signed
by the Parent, the Borrowers and the Majority Lenders, or by the Parent, the
Borrowers and the Administrative Agent acting with the consent of the Majority
Lenders, and any provision of this Agreement may be waived after written notice
to all Lenders by the Majority Lenders or by the Administrative Agent acting
with the consent of the Majority Lenders; PROVIDED that:
(a) no modification, supplement or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative Agent
acting with the consent of all of the Lenders: (i) increase, or extend the
term of any of the Commitments, or extend the time or waive any requirement
for the scheduled reduction or termination of any of the Commitments,
(ii) extend the date fixed for the scheduled payment of principal of or
interest on any Loan, the Reimbursement Obligations or any fee hereunder,
(iii) reduce the amount of any such payment of principal, (iv) reduce the
rate at which interest is payable thereon or any fee is payable hereunder,
(v) alter the rights or obligations of the Borrowers to prepay Loans, (vi)
alter the manner in which payments or prepayments of principal, interest or
other amounts hereunder shall be applied as between the Lenders or Types or
Facilities of Loans, (vii) alter the terms of this Section 12.04,
(viii) modify the definition of the term "Majority Lenders", "Majority
Revolving Credit Lenders", "Majority Tranche A Term Loan Lenders" or
"Majority Tranche B Term Loan Lenders", or modify in any other manner the
number or percentage of the Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof, (ix) release
any Guarantor from any of its guarantee obligations under Section 6 hereof,
or (x) waive any of the conditions
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precedent set forth in Section 7.01, 7.02, 7.03 or 7.04 hereof;
(b) any modification, supplement or waiver of Section 2.01(e) hereof
shall require the consent of NatWest;
(c) any modification or supplement of Section 11 hereof, or of any of
the rights or duties of the Administrative Agent hereunder, shall require
the consent of the Administrative Agent; and
(d) any modification or supplement of Section 6 hereof shall require
the consent of each Guarantor.
12.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) No Obligor may assign any of its rights or obligations hereunder
or under the Notes without the prior consent of all of the Lenders and the
Administrative Agent.
(b) Each Lender may assign any of its Loans, its Notes, its
Commitments, and, if such Lender is a Revolving Credit Lender, its Letter of
Credit Interest (but only with the consent of the Administrative Agent, the
Parent and (in the case of a Revolving Credit Commitment or a Letter of Credit
Interest) the Issuing Banks, such consents not to be unreasonably withheld);
PROVIDED that
(i) (x) no such consent by the Parent, the Administrative Agent or
the Issuing Banks shall be required in the case of any assignment to
another Lender and (y) no such consent by the Parent shall be required in
the case of any assignment of any Tranche B Term Loan;
(ii) except to the extent the Parent and the Administrative Agent
shall otherwise consent, any such partial assignment (other than to another
Lender) shall be in an amount at least equal to $5,000,000;
(iii) each such assignment by a Lender of its Loans, Note,
Commitment or Letter of Credit Interest under any Revolving Credit Facility
shall be made in such manner so that the same portion of its Loans, Note,
Commitment and
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Letter of Credit Interest under all Revolving Credit
Facilities are assigned to the respective assignee;
(iv) each such assignment by a Lender of its Loans or Commitment
under either Tranche A Term Loan Facility shall be made in such manner so
that the same portion of its Loans and Commitment under all Tranche A Term
Loan Facilities are assigned to the respective assignee; and
(v) each such assignment by a Lender of its Loans or Commitment
under either Tranche B Term Loan Facility shall be made in such manner so
that the same portion of its Loans and Commitment under all Tranche B Term
Loan Facilities are assigned to the respective assignee.
Upon execution and delivery by the assignee to the Parent, the Administrative
Agent and the Issuing Banks of an instrument in writing pursuant to which such
assignee agrees to become a "Lender" hereunder (if not already a Lender) having
the Commitment(s), Loans, and, if applicable, Letter of Credit Interest
specified in such instrument, and upon consent thereto by the Parent, the
Administrative Agent and the Issuing Banks to the extent required above, the
assignee shall have, to the extent of such assignment (unless provided in such
assignment with the consent of the Parent, the Administrative Agent and the
Issuing Banks), the obligations, rights and benefits of a Lender hereunder
holding the Commitment(s), Loans and, if applicable, Letter of Credit Interest
(or portions thereof) assigned to it (in addition to the Commitment(s), Loans
and Letter of Credit Interest, if any, theretofore held by such assignee) and
the assigning Lender shall, to the extent of such assignment, be released from
the Commitment(s) (or portion(s) thereof) so assigned. Upon each such
assignment (but excluding, in any event, the assignments contemplated in the
last paragraph of Section 2.01(e) hereof) the assigning Lender shall pay the
Administrative Agent an assignment fee of $3,500.
(c) A Lender may sell or agree to sell to one or more other Persons
(each a "PARTICIPANT") a participation in all or any part of any Loans or Letter
of Credit Interest held by it, or in its Commitments, PROVIDED that such
Participant shall not have any rights or obligations under this Agreement or any
Note or any other Credit Document (the Participant's rights against such Lender
in respect of such participation to be those set forth in the agreements
executed by such Lender in favor of the Participant). All amounts payable by
the Borrowers to any Lender under Section 5 hereof in respect of Loans, Letter
of Credit Interest held by it, and its Commitments, shall be determined as
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if such Lender had not sold or agreed to sell any participations in such Loans,
Letter of Credit Interest and Commitments, and as if such Lender were funding
each of such Loan, Letter of Credit Interest and Commitments in the same way
that it is funding the portion of such Loan, Letter of Credit Interest and
Commitments in which no participations have been sold. In no event shall a
Lender that sells a participation agree with the Participant to take or refrain
from taking any action hereunder or under any other Credit Document except that
such Lender may agree with the Participant that it will not, without the consent
of the Participant, agree to (i) increase or extend the term of such Lender's
related Commitment, (ii) extend the scheduled date fixed for the payment of
principal of or interest on the related Loan or Loans, Reimbursement Obligations
or any portion of any fee hereunder payable to the Participant, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at which interest
is payable thereon, or any fee hereunder payable to the Participant, to a level
below the rate at which the Participant is entitled to receive such interest or
fee or (v) consent to any modification, supplement or waiver hereof or of any of
the other Credit Documents to the extent that the same, under Section 11.09
or 12.04 hereof, requires the consent of each Lender.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 12.06, any Lender may (without notice
to the Parent, the Administrative Agent, the Issuing Banks or any other Lender
and without payment of any fee) assign and pledge all or any portion of its
Loans and its Notes to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal Reserve Bank,
and such Loans and Notes shall be fully transferrable as provided therein. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(e) A Lender may furnish any information concerning the Parent or any
of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Section 12.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or Reimbursement
Obligation held by it hereunder to the Parent or any of its Affiliates or
Subsidiaries without the prior consent of each Lender.
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12.07 SURVIVAL. The obligations of the Obligors under Sections 5.01,
5.05, 5.06, 5.07 and 12.03 hereof, the obligations of each Guarantor under
Section 6.03 hereof, and the obligations of the Lenders under Section 11.05
hereof, shall survive the repayment of the Loans and Reimbursement Obligations
and the termination of the Commitments and, in the case of any Lender that may
assign any interest in its Commitments, Loans or Letter of Credit Interest
hereunder, shall survive the making of such assignment, notwithstanding that
such assigning Xxxxxx may cease to be a "Lender" hereunder. In addition, each
representation and warranty made, or deemed to be made by a notice of any
extension of credit (whether by means of a Loan or a Letter of Credit), herein
or pursuant hereto shall survive the making of such representation and warranty,
and no Lender shall be deemed to have waived, by reason of making any extension
of credit hereunder (whether by means of a Loan or a Letter of Credit), any
Default that may arise by reason of such representation or warranty proving to
have been false or misleading, notwithstanding that such Lender or the
Administrative Agent may have had notice or knowledge or reason to believe that
such representation or warranty was false or misleading at the time such
extension of credit was made.
12.08 CAPTIONS. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Obligor hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), and of any other appellate court in the State of New
York, for the purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. Each Obligor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a
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court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
12.11 WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12.12 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) Each Obligor acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Parent or one or more of its Subsidiaries (in connection with this Agreement
or otherwise) by any Lender or by one or more subsidiaries or affiliates of such
Lender and each of the Obligors hereby authorizes each Lender to share any
information delivered to such Lender by such Obligor and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender to
enter into this Agreement, to any such subsidiary or affiliate, it being
understood that any such subsidiary or affiliate receiving such information
shall be bound by the provisions of paragraph (b) below as if it were a Lender
hereunder. Such authorization shall survive the repayment of the Loans and
Reimbursement Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by any of the Obligors pursuant to this
Agreement that is identified by such Person as being confidential at the time
the same is delivered to the Lenders or the Administrative Agent, PROVIDED that
nothing herein shall limit the disclosure of any such information (i) after such
information shall have become public (other than through a violation of this
Section 12.12), (ii) to the extent required by statute, rule, regulation or
judicial process, (iii) to counsel for any of the Lenders or the Administrative
Agent, (iv) to bank examiners (or any other regulatory authority having
jurisdiction over any Lender or the Administrative Agent), or to auditors or
accountants, (v) to the Administrative Agent or any other Lender, (vi) in
connection with
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any litigation to which any one or more of the Lenders or the Administrative
Agent is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Credit Document, (vii) to a subsidiary or
affiliate of such Lender as provided in paragraph (a) above or (viii) to any
assignee or participant (or prospective assignee or participant) so long as
such assignee or participant (or prospective assignee or participant) first
executes and delivers to the respective Lender a Confidentiality Agreement
substantially in the form of Exhibit K hereto (or executes and delivers to
such Lender an acknowledgement to the effect that it is bound by the
provisions of this Section 12.12(b), which acknowledgement may be included as
part of the respective assignment or participation agreement pursuant to
which such assignee or participant acquires an interest in the Loans or
Letter of Credit Interest hereunder); PROVIDED, FURTHER, that in no event
shall any Lender or the Administrative Agent be obligated or required to
return any materials furnished by any of the Obligors or any of their
respective Subsidiaries. The obligations of each Lender under this Section
12.12 shall supersede and replace the obligations of such Lender under the
confidentiality letter in respect of this financing signed and delivered by
such Lender to the Company prior to the date hereof; in addition, the
obligations of any assignee that has executed a Confidentiality Agreement in
the form of Exhibit K hereto shall be superseded by this Section 12.12 upon
the date upon which such assignee becomes a Lender hereunder pursuant to
Section 12.06(b) hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
THE PARENT
COMMONWEALTH ALUMINUM CORPORATION
By_________________________
Title:
Address for Notices:
Commonwealth Aluminum Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
CREDIT AGREEMENT
-173-
THE BORROWERS
COMMONWEALTH ALUMINUM LEWISPORT,
INC.
By_________________________
Title:
CREDIT AGREEMENT
-174-
CASTECH ALUMINUM GROUP INC.
By_________________________
Title:
CREDIT AGREEMENT
-175-
BARMET ALUMINUM CORPORATION
By_________________________
Title:
CREDIT AGREEMENT
-176-
SUBSIDIARY GUARANTORS
CALC CORPORATION
By_________________________
Title:
CREDIT AGREEMENT
-177-
COMMONWEALTH ALUMINUM SALES
CORPORATION
By_________________________
Title:
CREDIT AGREEMENT
-178-
LENDERS
NATIONAL WESTMINSTER BANK PLC
By_________________________
Title:
CREDIT AGREEMENT
-179-
PNC BANK, NATIONAL ASSOCIATION
By_________________________
Title:
CREDIT AGREEMENT
-180-
BANK OF MONTREAL
By_________________________
Title:
CREDIT AGREEMENT
-181-
MELLON BANK, N.A.
By_________________________
Title:
CREDIT AGREEMENT
-182-
NBD BANK
By_________________________
Title:
CREDIT AGREEMENT
-183-
THE ADMINISTRATIVE AGENT
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
By_________________________
Title:
Address for Notices:
National Westminster Bank Plc
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxx Xxxxx
