EXHIBIT 4.6
[EXECUTION COPY]
================================================================================
U.S. $100,000,000
TERM LOAN AGREEMENT,
dated as of March 24, 1998,
among
XXXXX X. XXXXXXXXX COMPANY,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
BANKERS TRUST COMPANY,
as the Documentation Agent for the Lenders,
and
FLEET NATIONAL BANK,
as the Administrative Agent for the Lenders.
================================================================================
XXXXXXXXX, LUFKIN & XXXXXXXX XX XXXX. XXXXX INCORPORATED,
SECURITIES CORPORATION, as Co-Arranger
as Arranger
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms..................................................... 2
1.2. Use of Defined Terms.............................................. 23
1.3. Cross-References.................................................. 23
1.4. Accounting and Financial Determinations........................... 23
1.5. Use of UCC Terms.................................................. 23
1.6. Officers' Certificates and Opinions............................... 23
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments....................................................... 24
2.1.1. Term Loan Commitments............................................. 24
2.1.2. Lenders Not Permitted or Required to Make the Term Loans.......... 24
2.2. Borrowing Procedures and Funding Maintenance...................... 24
2.3. Continuation and Conversion Elections............................. 24
2.4. Funding........................................................... 25
2.5. Loan Accounts..................................................... 25
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application........................... 26
3.1.1. Repayments and Prepayments........................................ 26
3.1.2. Application....................................................... 27
3.2. Interest Provisions............................................... 28
3.2.1. Rates............................................................. 28
3.2.2. Default Rates..................................................... 28
3.2.3. Payment Dates..................................................... 28
3.3. Fees.............................................................. 29
3.3.1. Arrangement, Structuring and Commitment Fees...................... 29
3.3.2. Administrative Agent Fee.......................................... 29
-i-
SECTION PAGE
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful........................................ 29
4.2. Deposits Unavailable.............................................. 29
4.3. Increased LIBO Rate Loan Costs, etc............................... 30
4.4. Funding Losses.................................................... 30
4.5. Increased Capital Costs........................................... 30
4.6. Taxes............................................................. 31
4.7. Payments, Computations, etc....................................... 32
4.8. Sharing of Payments............................................... 32
4.9. Setoff............................................................ 33
4.10. Replacement of Lender............................................. 33
ARTICLE V
CONDITIONS TO TERM LOAN EXTENSION
5.1. Resolutions, etc................................................... 34
5.2. Borrowing Request.................................................. 34
5.3. Issuance of the Senior Notes....................................... 34
5.4. Revolving Credit Agreement......................................... 34
5.5. Payment of Outstanding Indebtedness, etc........................... 34
5.6. Amendment of Notes................................................. 35
5.7. Transaction Documents.............................................. 35
5.8. Additional Security Documents...................................... 35
5.9. Mortgages.......................................................... 36
5.10. Lien Waivers....................................................... 37
5.11. Solvency Opinion................................................... 37
5.12. Closing Date Certificates.......................................... 37
5.13. Financial Information, etc......................................... 37
5.14. Litigation......................................................... 38
5.15. Material Adverse Change............................................ 38
5.16. Consents and Approvals, etc........................................ 38
5.17. Insurance.......................................................... 38
5.18. Opinions of Counsel................................................ 38
5.19. Closing Fees, Expenses, etc........................................ 39
5.20. Satisfactory Legal Form............................................ 39
5.21. No Default......................................................... 39
5.22. Compliance with Warranties......................................... 39
-ii-
SECTION PAGE
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc................................................. 39
6.2. Due Authorization, Non-Contravention, etc......................... 39
6.3. No Conflicts...................................................... 40
6.4. Validity and Binding Effect....................................... 40
6.5. No Default........................................................ 40
6.6. Financial Statements.............................................. 40
6.7. Insurance......................................................... 40
6.8. Litigation; Contingent Liabilities................................ 40
6.9. Liens............................................................. 41
6.10. Subsidiaries...................................................... 41
6.11. Partnerships; Joint Ventures...................................... 41
6.12. Senior Notes...................................................... 41
6.13. Intellectual Property............................................. 41
6.14. Solvency.......................................................... 41
6.15. Contracts; Labor Matters.......................................... 42
6.16. Pension and Welfare Plans......................................... 42
6.17. Regulations G, U and X............................................ 43
6.18. Compliance........................................................ 43
6.19. Taxes............................................................. 43
6.20. Investment Company Act Representation............................. 43
6.21. Public Utility Holding Company Act Representation................. 43
6.22. Environmental and Safety and Health Matters....................... 43
6.23. Related Agreements and Transaction Documents...................... 44
6.24. Ownership of Properties........................................... 45
6.25. Accuracy of Information........................................... 45
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants............................................. 45
7.1.1. Financial Information, Reports, Notices, etc...................... 45
7.1.2. Corporate Existence............................................... 48
7.1.3. Maintenance of Properties......................................... 48
7.1.4. Insurance......................................................... 48
7.1.5. Taxes............................................................. 48
7.1.6. Books and Records................................................. 48
7.1.7. Use of Proceeds, etc.............................................. 49
7.1.8. Concerning the Collateral and the Loan Documents.................. 49
7.1.9. Maintenance of Corporate Separateness............................. 49
7.1.10. Working Capital Line.............................................. 50
7.1.11. Additional Mortgages.............................................. 50
-iii-
SECTION PAGE
7.1.12. Future Subsidiaries............................................... 51
7.1.13. Compliance with Statutes, etc..................................... 52
7.1.14. Lien Waivers...................................................... 52
7.2. Negative Covenants................................................ 53
7.2.1. Indebtedness...................................................... 53
7.2.2. Liens............................................................. 55
7.2.3. Restricted Payments, etc.......................................... 55
7.2.4. Payment Restrictions Affecting Restricted Subsidiaries............ 57
7.2.5. Consolidation, Merger, etc........................................ 57
7.2.6. Asset Dispositions, etc........................................... 58
7.2.7. Modification of Certain Agreements................................ 60
7.2.8. Transactions with Affiliates...................................... 61
7.2.9. Limitation on Investments......................................... 61
7.2.10. Impairment of Security Interest................................... 61
7.2.11. Sale and Leaseback................................................ 62
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default...................................... 62
8.1.1. Non-Payment of Obligations........................................ 62
8.1.2. Breach of Warranty................................................ 62
8.1.3. Non-Performance of Certain Covenants and Obligations.............. 62
8.1.4. Non-Performance of Other Covenants and Obligations................ 63
8.1.5. Disaffirmation of Obligations..................................... 63
8.1.6. Default Under Revolving Credit Agreement.......................... 63
8.1.7. Default on Other Indebtedness..................................... 63
8.1.8. Judgments......................................................... 63
8.1.9. Bankruptcy, Insolvency, etc....................................... 63
8.1.10. Impairment of Security, etc....................................... 64
8.2. Action if Bankruptcy, etc......................................... 64
8.3. Action if Other Event of Default.................................. 64
ARTICLE IX
THE AGENTS
9.1. Appointment of Agents............................................. 65
9.2. Nature of Duties of the Agents.................................... 65
9.3. General Immunity.................................................. 65
9.4. Successor......................................................... 66
9.5. Agents in Their Capacity as Lenders............................... 67
9.6. Actions by Each Agent............................................. 67
9.7. Right to Indemnity................................................ 67
-iv-
SECTION PAGE
9.8. Administrative Agent.............................................. 68
9.9. Suits to Protect Collateral....................................... 68
9.10. Determinations Relating to Collateral............................. 68
9.11. Trust Moneys...................................................... 69
9.12. Release of Collateral............................................. 69
9.13. Application of Proceeds of Collateral............................. 69
9.14. Rights and Remedies to be Exercised by Administrative Agent Only.. 70
9.15. Credit Decisions.................................................. 70
9.16. Copies, etc....................................................... 70
9.17. The Syndication Agent and the Administrative Agent................ 70
9.18. Agreement to Cooperate............................................ 71
9.19. Lenders to Act as Agents.......................................... 71
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc.......................................... 71
10.2. Notices........................................................... 72
10.3. Payment of Costs and Expenses..................................... 72
10.4. Indemnification................................................... 73
10.5. Survival.......................................................... 74
10.6. Severability...................................................... 74
10.7. Headings.......................................................... 74
10.8. Execution in Counterparts, Effectiveness, etc..................... 74
10.9. Governing Law; Entire Agreement................................... 74
10.10. Successors and Assigns............................................ 75
10.11. Sale and Transfer of Term Loans and Term Notes; Participations in
Term Loans and Term Notes....................................... 75
10.11.1. Assignments....................................................... 75
10.11.2. Participations.................................................... 77
10.12. Other Transactions................................................ 78
10.13. Confidentiality................................................... 78
10.14. Forum Selection and Consent to Jurisdiction....................... 79
10.15. Waiver of Jury Trial.............................................. 79
-v-
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
SCHEDULE III - Owned Property
SCHEDULE IV - Leased Property
EXHIBIT A - Form of Term Note
EXHIBIT B - Form of Borrowing Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Mortgage
EXHIBIT E - Form of Security Agreement
EXHIBIT F - Form of Borrower Closing Date Certificate
EXHIBIT G - Form of Parent Closing Date Certificate
EXHIBIT H - Form of Lender Assignment Agreement
-vi-
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT, dated as of March 24, 1998, among XXXXX X.
XXXXXXXXX COMPANY, a Delaware corporation (the "Borrower"), the various
--------
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), DLJ CAPITAL FUNDING, INC. ("DLJ"), as syndication agent (the
-------- ---
"Syndication Agent") for the Lenders, BANKERS TRUST COMPANY, as documentation
------------------
agent (the "Documentation Agent") for the Lenders, and FLEET NATIONAL BANK
-------------------
("Fleet"), as administrative agent (the "Administrative Agent") for the Lenders.
------- --------------------
W I T N E S S E T H:
WHEREAS, the Borrower is the wholly owned and sole subsidiary of Xxxxx X.
Xxxxxxxxx Holding Company, Inc., a Delaware corporation (the "Parent");
------
WHEREAS, the Borrower, desires (i) to issue its senior unsecured notes due
2005 for gross cash proceeds of $105,000,000 pursuant to a private offering
thereof (the "Senior Note Offering"), (ii) to obtain from the Lenders a
--------------------
commitment to provide Term Loans (as defined below) in an aggregate principal
amount of $100,000,000 and (iii) to enter into an amended and restated revolving
credit agreement which would provide for a five-year revolving credit facility
in an amount for up to $220,000,000;
WHEREAS, the Borrower intends to use the proceeds of the Senior Notes and
the Term Loans (i) to prepay $155,000,000 in aggregate principal amount of its
outstanding 10 3/4% Senior Notes (the "Outstanding Notes") due in the year 2000,
issued pursuant to the Indenture dated as of March 11, 1993, entered into by and
between the Borrower and United States Trust Company of New York (the
"Outstanding Note Indenture"), together with premium and accrued interest
---------------------------
thereon to the date of redemption not exceeding $6,200,000, (ii) to prepay
approximately $5,100,000 in aggregate principal amount of purchase money
indebtedness, including premium and accrued interest thereon, as set forth in
the Xxxxxx Documents (as defined herein), (iii) to pay a dividend to the Parent
in the amount of approximately $45,400,000 to enable the Parent (A) to prepay
$40,000,000 in principal amount of the Series A Variable Rate Senior Notes (the
"Parent Notes") due in the year 2006, issued pursuant to the Restructuring
------------
Agreement dated as of March 3, 1993, entered into by and between the Parent and
KIA IV, as amended by the Amendment to Holding Restructuring Agreement dated as
of March 24, 1998, and (B) to pay approximately $5,400,000 of interest accrued
as of March 31, 1998 on the Parent Notes and (iv) to pay related transaction
fees and expenses of approximately $9,000,000; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend the
---------
commitments and make the loans described herein to the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
-------------
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" is defined in the preamble and includes (a) each
-------------------- --------
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4 and (b) where the context relates
-----------
to the perfection, possession or foreclosure of any of the Collateral, each
other Person appointed by the Administrative Agent to carry out such action.
"Affiliate" means, with respect to any Person, any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agents" means, collectively, the Administrative Agent, the Syndication
------
Agent and the Documentation Agent.
"Agreement" means, on any date, this Term Loan Agreement as originally in
---------
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, for any day and with respect to all Base Rate
-------------------
Loans, a fluctuating rate of interest per annum equal to the higher of: (a)
0.50% per annum above the Federal Funds Rate most recently determined by the
Administrative Agent and (b) the rate of interest in effect for such day as most
recently publicly announced or established by the Administrative Agent at its
Domestic Office as its "prime rate." (The "prime rate" is a rate set by the
Administrative Agent based upon various factors including the Administrative
Agent's costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at,
above or below such announced rate.) Any change in the reference rate announced
by the Administrative Agent shall take effect at the opening of business on the
day of such establishment or announcement.
"APB 16" means Accounting Principles Board Opinion No. 16 (Business
------
Combinations) as in effect on the date of this Agreement.
"Applicable Margin" means (i) with respect to the unpaid principal amount
-----------------
of each Term Loan maintained as a Base Rate Loan, 2.00% and (ii) with respect to
the unpaid principal amount of each Term Loan maintained as a LIBO Rate Loan,
3.25%.
-2-
"Approved Fund" means, with respect to any Lender that is a fund or trust
-------------
that makes, purchases or invests in commercial loans, any other fund or trust
that makes, purchases or invests in commercial loans and is managed by the same
investment advisor as such Lender.
"Arranger" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, a
--------
Delaware corporation.
"Asset Disposition" is defined in Section 7.2.6.
----------------- -------------
"Assignee Lender" is defined in Section 10.11.1.
--------------- ---------------
"Assignor Lender" is defined in Section 10.11.1.
--------------- ---------------
"Attributable Debt" means, with respect to any Sale and Leaseback
-----------------
Transaction, as at the time of determination, the present value (discounted at
the interest rate implicit in the lease, compounded semiannually) of the
obligation of the lessee of the property subject to such Sale and Leaseback
Transaction for rental payments during the remaining term of the lease included
in such transaction including any period for which such lease has been extended
or may, at the option of the lessor, be extended or until the earliest date on
which the lessee may terminate such lease without penalty or upon payment of
penalty (in which case the rental payments shall include such penalty), after
excluding all amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water, utilities and similar charges.
"Authorized Officer" means, relative to any Obligor, those of its officers
------------------
whose signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to Section 5.1.
-----------
"Bankruptcy Law" means chapter 11 of Title 11 of the United States Code, as
--------------
amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Base Rate Loan" means a Term Loan bearing interest at a fluctuating rate
--------------
determined by reference to the Alternate Base Rate.
"Board of Directors" means the Board of Directors of the Borrower or any
------------------
committee thereof duly authorized to act on behalf of such Board of Directors.
"Board Resolution" of any corporation means a copy of a resolution
----------------
certified by the Secretary or an Assistant Secretary of such corporation to have
been duly adopted by the board of directors of such entity and to be in full
force and effect on the date of such certification and delivered to the
Administrative Agent.
"Borrower" is defined in the preamble.
-------- --------
"Borrower Closing Date Certificate" means a certificate of an Authorized
---------------------------------
Officer of the Borrower substantially in the form of Exhibit F hereto, delivered
---------
pursuant to Section 5.12.
------------
-3-
"Borrowing" means Term Loans of the same type and, in the case of LIBO Rate
---------
Loans, having the same Interest Period made by all Lenders on the same Business
Day.
"Borrowing Request" means a loan request and certificate duly executed by
-----------------
an Authorized Officer of the Borrower, substantially in the form of Exhibit B
---------
hereto.
"Business Day" means any day which is neither a Saturday or Sunday nor a
------------
legal holiday on which banks are authorized or required to be closed in New York
City or Boston, Massachusetts and, with respect to Borrowings of, Interest
Periods with respect to, payments of principal and interest in respect of,
continuations or conversions of Base Rate Loans into, LIBO Rate Loans, on which
dealings in Dollars are carried on in the London interbank market.
"Capital Stock" means, with respect to any Person, any and all shares,
-------------
interests, participations, or other equivalents (however designated) of capital
stock or beneficial ownership interests of such Person (including general and
limited partnership interests and limited liability company interests) and any
rights (other than debt securities convertible into capital stock), warrants or
options to acquire such capital stock or beneficial ownership interests.
"Capitalized Lease Obligation" means, as to any Person, Indebtedness
----------------------------
represented by obligations under a lease that is required to be capitalized on
the balance sheet of such Person for financial reporting purposes in accordance
with GAAP and the amount of such Indebtedness shall be the capitalized amount of
such obligations and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease.
"Cash Equivalents" means (i) obligations issued or directly and fully
----------------
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) and maturing within one year
from the date of acquisition, (ii) dollar and eurodollar time deposits and
certificates of deposit or bankers' acceptances of any domestic commercial bank
or domestic branch office or agency of a foreign commercial bank of recognized
standing having capital and surplus in excess of $100,000,000 (a "Qualified
---------
Bank"), (iii) repurchase obligations with a term of not more than seven days for
----
underlying securities of the types described in clause (i) above entered into
----------
with any Qualified Bank, (iv) commercial paper issued by any Qualified Bank and
commercial paper of any other issuer rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody's and in each
case maturing within one year from the date of acquisition, (v) securities,
bonds, notes, debentures or investments or other forms of Indebtedness of any
person rated at least A or the equivalent thereof by S&P and at least A or the
equivalent thereof by Xxxxx'x, (vi) investments in money market or mutual funds
registered under the Investment Company Act of 1940, as amended, whose sole
investments are comprised of securities and other instruments or obligations
described in clauses (i) through (v) above; and (vii) with respect to only
----------- ---
foreign operations of the Borrower and its Subsidiaries, overnight deposits in
the ordinary course of business with foreign commercial banks and certificates
of deposit or bankers' acceptances of foreign commercial banks of recognized
standing having capital and surplus in excess of $100,000,000.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
------
Liability Act of 1980, 42 U.S.C. 9601, et seq., as amended.
-4-
"CERCLIS" means the Comprehensive Environmental Response Compensation
-------
Liability Information System List.
"Change of Control" means (i) directly or indirectly a sale, transfer or
-----------------
other conveyance of all or substantially all of the assets of the Borrower or
Parent, on a consolidated basis, to 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), excluding transfers or conveyances to or among the Borrower's
Wholly Owned Restricted Subsidiaries, as an entirety or substantially as an
entirety in one transaction or series of related transactions, (ii) prior to the
earlier to occur of (A) the first public offering of Common Stock of the Parent
and (B) the first public offering of Common Stock of the Borrower, Xxxxx &
Company and its Affiliates, the officers, directors and employees of the
Borrower and its Subsidiaries and the ESOP (collectively, the "Permitted
---------
Holders") cease to beneficially own, directly or indirectly, in the aggregate a
-------
majority of the total voting power of all classes of Capital Stock then
outstanding and normally entitled to vote in elections of directors ("Voting
------
Stock") of the Borrower, whether as a result of issuance of securities of the
-----
Borrower, any merger, consolidation, liquidation or dissolution of the Borrower,
any direct or indirect transfer of securities by Parent or otherwise (the
Permitted Holders will be deemed to beneficially own any Voting Stock of the
Borrower held by Parent so long as Permitted Holders beneficially own, directly
or indirectly, in the aggregate a majority of the voting power of the Voting
Stock of Parent); (iii) any "person" or "group" (as such terms are used for
purposes of Section 13(d) and 14(d) of the Exchange Act, whether or not
applicable), other than one or more Permitted Holders, is or becomes the
"beneficial owner" (as that term is used in Rules 13d-3 and 13d-5 under the
Exchange Act, whether or not applicable, except that a person shall be deemed to
have "beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 30% of the total voting power of
all Voting Stock then outstanding of the Borrower and the Permitted Holders
"beneficially own" (as so defined), directly or indirectly, in the aggregate a
lesser percentage of the total voting power of the Voting Stock of the Borrower
than such other person and do not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the Board
of Directors of the Borrower (for the purposes of this clause (iii), such other
------------
person will be deemed to beneficially own any Voting Stock of the Borrower held
by Parent, if such other person "beneficially owns" (as so defined), directly or
indirectly, more than 30% of the voting power of the Voting Stock of Parent and
the Permitted Holders "beneficially own" (as so defined), directly or
indirectly, in the aggregate a lesser percentage of the voting power of the
Voting Stock of Parent, and do not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the Board
of Directors of Parent), or (iv) during any period of 24-consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of the Borrower (together with any new directors whose election by
such Board or whose nomination for election by the shareholders of the Borrower
was approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved or who were nominated and
elected by the Permitted Holders pursuant to the Stockholder Agreement) cease
for any reason to constitute a majority of the Board of Directors of the
Borrower then in office.
"Closing Date" means the date of the initial Borrowing, not to be later
------------
than March 31, 1998.
-5-
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
----
otherwise modified.
"Collateral" means the property and assets of the Borrower and its
----------
Restricted Subsidiaries which may from time to time be subject to one or more of
the Liens evidenced or created by any Loan Document.
"Collateral Account" means the Collateral Account as defined in the
------------------
Security Agreement.
"Collateral Proceeds" is defined in Section 7.2.6.
------------------- -------------
"Commitment Termination Event" means (i) the occurrence of any Event of
----------------------------
Default described in Section 8.1.9 or (ii) the occurrence and continuance of any
-------------
other Event of Default and the giving of notice to the Borrower by the
Administrative Agent, acting at the direction of the Required Lenders, that the
Term Loan Commitments have been terminated.
"Consolidated Cash Flow" means, with respect to any Person, for any period,
----------------------
the Consolidated Net Income of such Person plus, to the extent deducted in
determining Consolidated Net Income, the sum of (a) income taxes, determined on
a consolidated basis for such Person and its Restricted Subsidiaries, (b) Fixed
Charges of such Person and its Restricted Subsidiaries, (c) depreciation
expense, (d) amortization expense and (e) all other non-cash items deducted from
net revenues in determining Consolidated Net Income for such period, all
determined in accordance with GAAP.
"Consolidated Net Income" means, for any period, and as to any Person, the
-----------------------
net income (loss) of such Person and its Restricted Subsidiaries for such
period, determined in accordance with GAAP, provided that (i) the net income
--------
(determined as set forth above) of any Unrestricted Subsidiary or any other
Person, other than a Restricted Subsidiary, in which such person or any of its
Restricted Subsidiaries has a joint interest with a third party shall be
included only to the extent of the amount of dividends or distributions actually
paid to such person or Restricted Subsidiary during such period, (ii) the net
income (loss) of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded, (iii) the
net income of any Restricted Subsidiary shall be excluded to the extent such
Restricted Subsidiary is prohibited, directly or indirectly, from distributing
such net income or any portion thereof to such Person, (iv) the net income
(loss) of such Person shall be adjusted by excluding (to the extent otherwise
included) any extraordinary gains and extraordinary losses together with any
related provisions for taxes on any such gain or loss during any such period,
(v) the net income (loss) of such person shall be adjusted by excluding any
adjustments relating to the LIFO method of accounting for inventory during such
period, (vi) the net income (loss) of the Borrower shall be adjusted to exclude
(to the extent otherwise included) the one-time non-cash charges associated with
the write-off of deferred debt issuance costs associated with the Refinancing
Transactions and to exclude any redemption premiums paid on the Outstanding
Notes or the purchase money indebtedness redeemed in connection with the
Refinancing Transactions.
"Consolidated Net Worth" of any Person, at any date, means the aggregate of
----------------------
capital, surplus and retained earnings less (a) any accumulated deficit and (b)
any amounts attributable to Redeemable Stock, of such Person and its Restricted
Subsidiaries as would be shown on a
-6-
consolidated balance sheet of such Person and its Restricted Subsidiaries
prepared in accordance with GAAP.
"Continuation/Conversion Notice" means a notice of continuation or
------------------------------
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
---------
"Custodian" means any receiver, trustee, assignee, liquidator or similar
---------
official under any Bankruptcy Law.
"Default" means any Event of Default or any condition, occurrence or event
-------
which, after notice or lapse of time or both, would, unless cured or waived,
constitute an Event of Default.
"Designated Facilities" means the facilities of the Borrower located in
---------------------
Detroit, Michigan, Lynwood, California (the Alameda Sheet and Strip building),
Kansas City, Missouri (the JSA Facility), and Buffalo, New York and any
property, plant or equipment located at such facility and used at such facility
consistent with past practice.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
-------------------
Schedule I, as it may be amended, supplemented or otherwise modified from time
----------
to time by the Borrower with the written consent of the Administrative Agent and
the Required Lenders.
"DLJ" is defined in the preamble.
--- --------
"Documentation Agent" is defined in the preamble.
------------------- --------
"Dollar" and the sign "$" mean lawful money of the United States.
------ -
"Domestic Office" means, relative to any Lender, the office of such Lender
---------------
designated as such in Schedule II hereto or designated in the Lender Assignment
-----------
Agreement or such other office of a Lender (or any successor or assign of such
Lender) within the United States as may be designated from time to time by
notice from such Lender, as the case may be, to each other Person party hereto.
A Lender may have separate Domestic Offices for purposes of making, maintaining
or continuing, as the case may be, Base Rate Loans.
"Effective Date" means the date this Agreement becomes effective pursuant
--------------
to Section 10.8.
------------
"Eligible Accounts Receivable" means all accounts receivable which are not
----------------------------
more than 180 days past due under their normal payment terms.
"Environmental Laws" means all applicable foreign, federal, state or local
------------------
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to protection and
conservation of the environment concerning any hazardous, toxic or dangerous
waste, substance or constituent, or any pollutant or contaminant.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case
-7-
as in effect from time to time. References to sections of ERISA also refer to
any successor sections.
"ERISA Affiliate" means any corporation, partnership, or other trade or
---------------
business (whether or not incorporated) that is, along with the Borrower, a
member of a controlled group of corporations or a controlled group of trades or
businesses, as described in Section 414(b) and 414(c), respectively, of the Code
or Section 4001 of ERISA, or a member of the same affiliated service group
within the meaning of Section 414(m) of the Code.
"Escrow Agent" is defined in Section 5.5(b).
------------ --------------
"ESOP" means the Xxxxx X. Xxxxxxxxx Employee Stock Ownership Plan.
----
"Event of Default" is defined in Section 8.1.
---------------- -----------
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Excluded Facility" means the real property and plant located at 601 Redna
-----------------
Terrace, Cincinnati, Ohio, to the extent that such real property and plant is
purchased by the Borrower for an amount not exceeding $6,000,000 and
subsequently sold by the Borrower on or prior to March 31, 1999, pursuant to a
transaction in which the Borrower enters into a lease agreement with the
purchaser of such real property and plant (such lease agreement to contain the
lien waivers referred to in Section 7.1.14) on terms no less favorable in any
--------------
material respect than the terms of the existing lease agreement for such real
property and plant.
"Existing Indebtedness" means all Indebtedness (other than the Senior Notes
---------------------
outstanding) of the Borrower or any Restricted Subsidiary existing on the date
hereof and listed on Item 7.2.1(e) ("Existing Indebtedness") of the Disclosure
------------- ---------------------
Schedule.
"FASB" is defined in the definition of "Fixed Charges".
----
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
------------------
annum equal for each day during such period to (i) the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or (ii) if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated as of March 24, 1998,
----------
between the Borrower and the Administrative Agent.
"Financial Statements" means the consolidated and consolidating balance
--------------------
sheets and statements of operations and the consolidated statements of cash
flows and statements of changes in shareholder's equity of the Borrower and its
Subsidiaries for the period specified, in each case prepared in accordance with
GAAP consistent with prior practice.
-8-
"Financing Disposition" means any sale, transfer, conveyance or other
---------------------
disposition of property or assets by the Borrower or any Subsidiary thereof to
any Receivables Entity, or by any Receivables Subsidiary, in each case in
connection with the incurrence by a Receivables Entity of Indebtedness, or
obligations to make payments to the obligor on indebtedness, which may be
secured by a Lien in respect of such property or assets.
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
--------------
"Fiscal Year" means any period of twelve consecutive months ending on March
-----------
31; references to a Fiscal Year with a numbering corresponding to any calendar
year refer to the fiscal year ending on the 31st of March during such calendar
year.
"Fixed Charges" means, with respect to any Person for any period, such
-------------
Person's consolidated interest expense determined in accordance with GAAP, (i)
including amortization of original issue discount and non-cash expenses
attributable to accruals and the interest component of capital leases, (ii) and
excluding the amortization of debt issuance costs, (iii) excluding an amount of
interest expense in respect of Life Insurance Policy loans that is equal to any
dividends received in respect of the Life Insurance Policies, and (iv) plus the
----
product of (x) the sum of (1) cash dividends paid on any preferred stock of such
person plus (2) cash and the fair market value (as determined by the Borrower's
----
Board of Directors in good faith) of any non cash dividends paid on any
preferred stock of any Restricted Subsidiary (other than a Wholly Owned
Restricted Subsidiary), times (y) a fraction, the numerator of which is one and
-----
the denominator of which is one minus the then current effective aggregate
Federal, state and local tax rate of such person, expressed as a decimal. For
purposes of this definition, interest on a capital lease shall be deemed to
accrue at the rate of interest implicit in such capital lease in accordance with
GAAP (including Statement of Financial Accounting Standards No. 13 of the
Financial Accounting Standards Board ("FASB")).
----
"Fixed Charge Coverage Ratio" means for any Person, for any period, such
---------------------------
Person's ratio of Consolidated Cash Flow to Fixed Charges for such period.
"Fleet" is defined in the preamble.
----- --------
"Foreign Subsidiary" means any Subsidiary of the Borrower (a) which is
------------------
organized under the laws of any jurisdiction outside of the United States of
America, (b) which conducts the major portion of its business outside of the
United States of America or (c) all or substantially all of the property and
assets of which are located outside of the United States of America.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
------------
or any successor thereto.
"GAAP" means generally accepted accounting principles in effect in the
----
United States as of the time when (and for the period as to which) such
accounting principles are to be applied; provided, however, that for purposes of
-------- -------
computing Consolidated Net Worth and the Fixed Charge Coverage Ratio and with
respect to compliance with Section 7.2.3, "GAAP" means such generally accepted
-------------
accounting principles as adopted by the Borrower on the date of this Agreement.
-9-
"Hazardous Materials" means any toxic substance, hazardous substance,
-------------------
hazardous material, hazardous chemical or hazardous waste defined or qualifying
as such in (or for the purposes of) any Environmental Law, or any other
pollutant or contaminant subject to an Environmental Law, and shall include, but
not be limited to, petroleum, including crude oil, any radioactive material,
including but not limited to any source, special nuclear or by-product material
as defined at 42 U.S.C. Section 2011 et seq., as amended or hereafter amended,
-- ---
polychlorinated biphenyls and asbestos in any form or condition.
"Xxxxxx Documents" means (a) the Loan and Security Agreement dated as of
----------------
March 27, 1995, by and between the Borrower and Xxxxxx Financial, Inc.; (b) the
Promissory Note dated March 30, 1995, made by the Borrower and payable to the
order of Xxxxxx Financial, Inc., in the original principal amount of $2,875,974;
(c) the Deed of Trust and Security Agreement dated as of March 28, 1995, by and
between the Borrower as grantor, Xxxxx X. Xxxxx, as trustee, and Xxxxxx
Financial, Inc., as the lender; and (d) the Guaranty dated March 28, 1995, made
by the Parent.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
------ ------ ------ ---------
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"including" means including without limiting the generality of any
---------
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
------- -------
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"incur" has the meaning ascribed in Section 7.2.1; provided that (a) with
----- ------------- --------
respect to any Indebtedness of any Restricted Subsidiary of the Borrower that is
owing to the Borrower or another Restricted Subsidiary of the Borrower, any
disposition, pledge or transfer of such Indebtedness to any Person (other than
the Borrower or a Wholly-Owned Restricted Subsidiary) shall be deemed to be an
incurrence of such Indebtedness and (b) with respect to any Indebtedness of the
Borrower or a Restricted Subsidiary that is owing to another Restricted
Subsidiary, any transaction pursuant to which a Wholly-Owned Restricted
Subsidiary to which such Indebtedness is owing ceases to be a Wholly-Owned
Restricted Subsidiary shall be deemed to be an incurrence of such Indebtedness;
and provided, further, that any Indebtedness of a Person existing at the time
-------- -------
such Person becomes a Restricted Subsidiary shall be deemed to be incurred by
such Restricted Subsidiary at the time it becomes a Restricted Subsidiary. The
term "incurrence" has a corresponding meaning.
"Indebtedness" means, as to any Person, without duplication, (a) all
------------
obligations of such Person, including accrued and unpaid interest, for borrowed
money (including any net overdraft in any bank which overdraft is not satisfied
within three consecutive Business Days from its occurrence), (b) all obligations
of such person evidenced by bonds (other than performance bonds issued in the
ordinary course of business), debentures, notes, letters of credit or
reimbursement agreements (other than letters of credit or reimbursement
agreements in respect of accounts payable to trade creditors incurred in the
ordinary course of business in connection with the obtaining of materials or
services) or similar instruments, (c) all obligations of such Person to pay the
deferred purchase price of property or services (other than accounts payable to
-10-
trade creditors arising in the ordinary course of business), (d) all Capitalized
Lease Obligations of such Person, (e) all indebtedness of others secured by a
Lien on any asset of such Person, whether or not such indebtedness is assumed by
such Person or guaranteed by such Person, (f) all indebtedness of others
guaranteed by such Person to the extent of such guarantee, (g) Attributable Debt
of such Person, (h) preferred stock issued by a Subsidiary of such Person, (i)
Redeemable Stock issued by such Person, and (j) obligations under interest rate
swaps and caps and currency swaps or options and other similar hedging
agreements (other than such arrangements entered into in the ordinary course of
business); and the amount of any such Indebtedness on the date of determination
thereof shall be the outstanding balance of any such unconditional obligations
as described above and the maximum liability of any such contingent obligation
at such date and, with respect to clauses (h) and (i), the amount of
----------- ---
Indebtedness shall equal the liquidation preference.
"Indemnified Liabilities" is defined in Section 10.4.
----------------------- ------------
"Indemnified Parties" is defined in Section 10.4.
------------------- ------------
"Insurance Proceeds" means the proceeds of any insurance policy insuring
------------------
the Improvements (as such term is defined in each Mortgage).
"Intercreditor Agreement" means the Intercreditor Agreement dated as of
-----------------------
March 24, 1998, between the Administrative Agent and the administrative agent
under the Revolving Credit Agreement, as amended, supplemented or otherwise
modified from time to time.
"Interest Period" means, as to any LIBO Rate Loan, the period commencing on
---------------
the Borrowing date of such Term Loan or on the date on which any Term Loan is
converted into or continued as a LIBO Rate Loan, and ending on the date one,
two, three, six or, if available in the Administrative Agent's reasonable
determination, nine or twelve months thereafter as selected by the Borrower in
its Borrowing Request or its Conversion/Continuation Notice; provided however
-------- -------
that:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, that Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period;
(iii) no Interest Period for any Term Loan shall extend beyond the
Stated Maturity Date for such Term Loan;
(iv) no Interest Period applicable to a Term Loan or portion thereof
shall extend beyond any date upon which is due any scheduled principal
payment in respect of the Term Loans unless the aggregate principal amount
of Term Loans represented by Base Rate Loans, or by LIBO Rate Loans having
Interest Periods that will expire on or before such date, equals or exceeds
the amount of such principal payment; and
-11-
(v) there shall be no more than five Interest Periods in effect at
any one time.
"Interest Rate Contracts" means interest rate swap agreements, interest
-----------------------
rate cap agreements, interest rate collar agreements, interest rate insurance,
and other agreements or arrangements designed to provide protection against
fluctuations in interest rates.
"Inventory" means, with respect to any Person, goods held by such Person
---------
for sale or lease or to be furnished under contracts of service or goods so
furnished by such Person, raw material, work in process or material used or
consumed in a business.
"Investment" of any Person means, collectively, any direct or indirect
----------
loan, advance or other extension of credit, capital contribution, or transfer of
cash, property or other assets to, or any acquisition of Capital Stock,
securities or other evidences of Indebtedness including by way of guarantee or
similar arrangement, of, any other Person. For the purposes of Sections 7.2.3
--------------
and 7.2.9, (i) "Investment" shall include the fair market value of the net
-----
assets of any Subsidiary at the time that such Subsidiary is designated an
Unrestricted Subsidiary, (ii) the fair market value of the net assets of any
Unrestricted Subsidiary that is designated a Restricted Subsidiary shall be
deducted from the aggregate amount of Investments in computing the net amount of
Investments and (iii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at fair market value at the time of such transfer, in
each case as determined in good faith by the Board of Directors of the Borrower,
and evidenced by a Board Resolution.
"Lender Assignment Agreement" means a Lender Assignment Agreement
---------------------------
substantially in the form of Exhibit H hereto.
---------
"Lenders" is defined in the preamble.
------- --------
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans, the
---------
interest rate per annum for deposits in Dollars, if any, for a period equal to
the relevant Interest Period which appears on Telerate page 3750 at
approximately 11:00 a.m., London time, prior to the commencement of such
Interest Period. If such a rate does not appear on Telerate Page 3750, the LIBO
Rate shall be the rate of interest per annum determined by the Administrative
Agent to be the arithmetic mean (rounded upward to the next 1/16th of 1%) of the
rates of interest per annum at which Dollar deposits in the approximate amount
of the Term Loan to be made or continued as, or converted into, a LIBO Rate Loan
by the Administrative Agent and having a maturity comparable to such Interest
Period would be offered to the Administrative Agent in the London interbank
market at its request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period (for purposes of
determining the LIBO Rate, if the Administrative Agent does not hold any Term
Loans, such determination shall be made as if the Administrative Agent held a
Term Loan in the amount of $1,000,000.)
"LIBO Rate Loan" means a Term Loan bearing interest, at all times during an
--------------
Interest Period applicable to such Term Loan, at a rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Term Loan to be made,
----------------------------
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, the rate of interest per annum (rounded upwards to the next 1/100th of
1%) determined by the Administrative Agent as follows:
-12-
LIBO Rate = LIBO Rate
-------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR Office" means, relative to any Lender, the office of such Lender
------------
designated as such in Schedule II hereto or designated in the Lender Assignment
-----------
Agreement or such other office of a Lender as shall be so designated from time
to time by notice from such Lender to the Borrower and the Administrative Agent,
whether or not outside the United States, which shall be making or maintaining
LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
------------------------
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
"Lien" means, with respect to any property, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such
property. The Borrower shall be deemed to own subject to a Lien any property
which 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 relating to such property.
"Life Insurance Policies" means those certain life insurance policies
-----------------------
obtained in 1984, 1985 and 1986 by Xxxxxx-Xxxxxxx Holding Co. ("KR") from
--
Phoenix Mutual Life Insurance Company covering participants in the KR employee
stock ownership plan and certain other KR executives, as in effect on the date
of this Agreement.
"Loan Documents" means this Agreement, the Term Notes, each Borrowing
--------------
Request, the Fee Letter, the Security Documents, the Intercreditor Agreement and
each other agreement, document or instrument delivered in connection with this
Agreement or any other Loan Document, whether or not specifically mentioned
herein or therein.
"Management Agreement" means that certain Management Agreement, dated March
--------------------
8, 1993, between the Parent and the Borrower.
"Margin Stock" has the meaning ascribed to such term in Regulation U of the
------------
Federal Reserve Board or any regulation substituted therefor, as in effect from
time to time.
"Material Adverse Effect" means (a) a material adverse effect on the
-----------------------
business, assets, debt service capacity, tax position, liabilities (including
environmental liabilities), financial condition, operations or prospects of the
Borrower and its Restricted Subsidiaries, taken as a whole, (b) a material
adverse effect upon the ability of the Borrower or any other Obligor to perform
its respective material obligations under the Loan Documents to which it is or
will be a
-13-
party or (c) an impairment of the validity or enforceability of, or a
material impairment of the rights, remedies or benefits available to the Agents,
the Arranger or the Lenders under this Agreement or any other Loan Document.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Mortgage" means each mortgage, deed of trust, or similar security
--------
instrument, substantially in the form of Exhibit D attached hereto, which from
---------
time to time affects any property that secures the Borrower's obligations under
this Agreement, as such instrument may be amended, supplemented or otherwise
modified from time to time.
"Mortgaged Property" means the Collateral and the Trust Premises as such
------------------
terms are defined in each Mortgage.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
------------------
4001(a)(3) of ERISA, that is maintained for employees of the Borrower or any
ERISA Affiliate.
"Net Award" means any awards or proceeds in connection with the
---------
condemnation, taking, exercise of the right of eminent domain or a change of
grade of any Collateral or Trust Premises, as such terms are defined in each
Mortgage.
"Net Proceeds" means, from any Asset Disposition by any Person, cash
------------
received therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred and all federal,
state, provincial, foreign and local taxes actually paid or provided for as a
liability as a consequence of such Asset Disposition, (ii) appropriate amounts
to be provided by such Person as a reserve, in accordance with GAAP, against any
liabilities associated with the asset sold or disposed of in such Asset
Disposition and retained by such Person after such Asset Disposition, and (iii)
all payments made by such Person on any Indebtedness which is secured by such
assets in accordance with the terms of any Lien upon or with respect to such
assets or which must by the terms of such Lien, or in order to obtain a
necessary consent to such asset sale or by applicable law, be repaid out of the
proceeds from such asset sale.
"Obligations" means all obligations (monetary or otherwise) of the Borrower
-----------
and each other Obligor arising under or in connection with this Agreement, the
Term Notes, and each other Loan Document.
"Obligor" means the Borrower or any other Person (other than any Agent, the
-------
Arranger, or any Lender) obligated under any Loan Document.
"Occupational Safety and Health Law" means the Occupational Safety and
----------------------------------
Health Act of 1970 and any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability or standards of conduct concerning employee health and/or
safety.
"Offering Memorandum" means the offering memorandum of the Borrower, dated
-------------------
March 19, 1998, in connection with the offer and sale of the Senior Notes.
-14-
"Officers' Certificate" means a certificate executed by the Chairman of the
---------------------
Board, Vice Chairman, the President or a Vice President (regardless of vice
presidential designation), and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Borrower and delivered to the
Administrative Agent.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
------------------
for the Borrower and who shall be reasonably acceptable to the Administrative
Agent.
"Organic Document" means, relative to any Obligor, its certificate of
----------------
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements to which such Obligor is a party applicable to any of its
authorized shares of Capital Stock.
"Outstanding Note Indenture" is defined in the third recital.
-------------------------- -------------
"Outstanding Notes" is defined in the third recital.
----------------- -------------
"Overadvance Payment" means a payment of Revolving Loans (as defined in the
-------------------
Revolving Credit Agreement) that becomes due and payable pursuant to Section
2.5(a) of the Revolving Credit Agreement.
"Parent" is defined in the first recital.
------ -------------
"Parent Closing Date Certificate" means a certificate of an Authorized
-------------------------------
Officer of the Parent substantially in the form of Exhibit G hereto, delivered
---------
pursuant to Section 5.12.
------------
"Parent Notes" is defined in the third recital.
------------ -------------
"Participant" is defined in Section 10.11.2.
----------- ---------------
"Pension Plan" means a "pension plan", as such term is defined in section
------------
3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer
Plan), and to which the Borrower or any corporation, trade or business that is,
along with the Borrower, an ERISA Affiliate, may have any liability, including
any liability by reason of being deemed to be a contributing sponsor under
section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable percentage
----------
relating to Term Loans, as set forth in Schedule II hereto or set forth in the
-----------
Lender Assignment Agreement as such percentage may be adjusted from time to time
pursuant to Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lender(s) and delivered pursuant to Section 10.11.
-------------
"Permitted Investment Amount" is defined in Section 7.2.9.
--------------------------- -------------
"Permitted Liens" means as of any particular time, any one or more of the
---------------
following:
(i) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or
its Restricted Subsidiaries, as the case may be, in conformity with
GAAP;
-15-
(ii) statutory Liens or landlords' and carriers',
warehousemen's, mechanics', materialmen's, repairmen's, or other like
Liens arising in the ordinary course of business and not overdue for a
period of more than 60 days or which are being contested in good faith
by appropriate proceedings;
(iii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other types of social
security benefits;
(iv) any attachment or judgment Lien not giving rise to a
Default or an Event of Default;
(v) the Lien on the funds deposited on the Closing Date with
the trustee under the Outstanding Note Indenture (such funds not to
exceed approximately $162,500,000 plus earnings thereon) for the
purpose of defeasing or redeeming all Outstanding Notes on or prior to
April 23, 1998;
(vi) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory obligations, surety and appeal
bonds, government contracts, performance and return-of-money bonds and
other obligations of like nature incurred in the ordinary course of
business (exclusive of obligations for the payment of borrowed money);
(vii) easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering in any material respect with
the business of the Borrower;
(viii) leases or subleases granted to others not interfering
with the ordinary conduct of the business of the Borrower;
(ix) title defects or irregularities which do not in the
aggregate materially impair the use of such properties by the
Borrower,
(x) Liens in respect of the Life Insurance Policies incurred
in connection with the Life Insurance Policy loans permitted under
clause (f) of Section 7.2.1;
------ --- -------------
(xi) Capitalized Lease Obligations permitted under Section
-------
7.2.1,
-----
(xii) any other Liens imposed by operation of law which do not
materially affect the Borrower's ability to perform its obligations
under the Term Notes, this Agreement and each other Loan Document;
(xiii) Liens existing on the date of this Agreement and renewals
and extensions thereof;
(xiv) Liens securing obligations under the Revolving Credit
Agreement encumbering inventory (including raw materials, work-in-
process, supplies and finished goods), accounts receivable (including
sellers' rights relating thereto, all contracts and contract rights
relating thereto and all books and records relating thereto), all
collection accounts, deposit accounts and other bank accounts
-16-
relating to collection of the foregoing, together with the proceeds
and products of all of the foregoing;
(xv) Liens granted to secure obligations under or in respect
of the Term Notes and the Obligations;
(xvi) purchase money mortgages and purchase money security
interests incurred in the normal and ordinary course of the Borrower's
and its Restricted Subsidiaries' business to the extent related to
Indebtedness incurred pursuant to clause (i) of Section 7.2.1.;
---------- --------------
(xvii) until April 1, 1998, Liens granted to secure Indebtedness
under the Xxxxxx Documents;
(xviii) Liens securing Indebtedness of any entity existing at
the time such assets are acquired by the Borrower or a Restricted
Subsidiary, whether by merger, consolidation, purchase of assets or
otherwise (whether or not such Liens are created, incurred or assumed
in contemplation of the acquisition thereof by the Borrower or a
Restricted Subsidiary), provided such Liens do not extend to any other
--------
assets of the Borrower or any other Restricted Subsidiaries, and Liens
securing refinancings of such Indebtedness provided that such Liens do
not extend to any assets other than assets securing such Indebtedness
to be refinanced;
(xix) Liens securing reimbursement obligations with respect to
letters of credit which encumber documents and other property relating
to such letters of credit and the products and proceeds thereof;
(xx) Liens arising pursuant to Sale and Leaseback Transactions
engaged in pursuant to and in accordance with Section 7.2.11;
--------------
(xxi) Liens securing Indebtedness or other obligations of any
Receivables Entity, provided such Liens do not encumber any assets
--------
other than assets of such Receivables Entity;
(xxii) Liens securing Indebtedness incurred pursuant to clause
------
(o) of Section 7.2.1; and
--- -------------
(xxiii) Liens other than those described above with respect to
obligations not in excess of $5,000,000 in the aggregate at any time;
provided, however, "Permitted Liens" shall not include any Lien that encumbers
-------- -------
any Collateral or the Capital Stock of any Restricted Subsidiary of the
Borrower.
"Permitted Transactions" means (i) reasonable and customary fees,
----------------------
compensation and benefits paid to officers, directors, employees or consultants
of the Borrower or any Restricted Subsidiary or their respective Affiliates for
services rendered to the Borrower or any Restricted Subsidiary in the ordinary
course of business consistent with past practice, (ii) transfers of goods and
services by or among the Borrower and its Restricted Subsidiaries and their
respective
-17-
Affiliates in the ordinary course of business consistent with past practice,
provided that if any such transaction or series of related transactions involves
--------
in excess of $3,000,000, the Board of Directors of the Borrower shall determine
in good faith by resolution that such transaction is on terms fair and
reasonable to the Borrower, (iii) transactions pursuant to agreements with
Affiliates which are currently in effect in accordance with their terms, and
(iv) dividends and distributions to Parent permitted under Section 7.2.3, (v)
-------------
any transactions between the Borrower or any Restricted Subsidiary and the ESOP
(or any successor thereto); (vi) advances to employees, officers, directors,
agents and representatives for travel and other reasonable and ordinary business
expenses, (vii) advances and loans to employees and officers in connection with
their relocation, (viii) payments to Stainless Insurance Ltd. in respect of
insurance services provided to the Borrower or any Restricted Subsidiary, and
(ix) payments to any Receivables Subsidiary for services performed or
reimbursement of expenses in connection with the financing or refinancing of
Receivables.
"Person" means any natural person, corporation, partnership, firm,
------
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plainfield Mortgage" is defined in Section 5.9.
------------------- -----------
"Plan" means any Pension Plan or Welfare Plan.
----
"Quarterly Payment Date" means the last Business Day of each March, June,
----------------------
September and December, commencing with June, 1998.
"Receivable" means a right to receive payment arising from a sale or lease
----------
of goods or services by a Person pursuant to an arrangement with another Person
pursuant to which such other Person is obligated to pay for goods or services
under terms that permit the purchase of such goods and services on credit, as
determined in accordance with GAAP.
"Receivables Financing" means any financing of Receivables of the Borrower
---------------------
or any Restricted Subsidiary that have been transferred to a Receivables Entity
in a Financing Disposition.
"Receivables Entity" means (x) any Receivables Subsidiary or (y) any other
------------------
Person that is engaged in the business of acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time), other
accounts and/or other receivables, and/or related assets.
"Receivables Subsidiary" means a Subsidiary of the Borrower that (a) is
----------------------
engaged solely in the business of acquiring, selling, collecting, financing, or
refinancing Receivables, accounts (as defined in the Uniform Commercial Code as
in effect in any jurisdiction from time to time) and other accounts and
receivables (including any thereof constituting or evidenced by chattel paper,
instruments or general intangibles), all proceeds thereof and all rights
(contractual and other), collateral and other assets relating thereto, and any
business or activities incidental or related to such business, and (b) is
designated as a "Receivables Subsidiary" by the Board of Directors of the
Borrower.
-18-
"Redeemable Stock" means any series or class of Capital Stock of any Person
----------------
which by its terms is redeemable at the option of the holder or is subject to
mandatory redemption prior to the maturity of the Term Notes.
"Refinancing Transactions" means, collectively, the transactions
------------------------
contemplated in connection with the execution and delivery of the Revolving
Credit Agreement, this Agreement and the Senior Note Indenture and the issuance
of the Senior Notes and Term Notes.
"Register" is defined in Section 10.11.1.
-------- ---------------
"Release" means a "release", as such term is defined in CERCLA.
-------
"Reportable Event" means any of the events described in Section 4043 of
----------------
ERISA with respect to a Pension Plan as to which the 30-day notice requirement
has not been waived by the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA and any Person succeeding to the functions
thereof.
"Required Lenders" means, at any time, (i) prior to the Closing Date
----------------
hereunder, Lenders having at least 51% of the sum of the Term Loan Commitments
and (ii) on and after the Closing Date, Lenders holding at least 51% of the
principal amount of the Term Loans.
"Resource Conservation and Recovery Act" means the Resource Conservation
--------------------------------------
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
-- ----
time.
"Restoration" means the reconstruction, rebuilding, restoration or
-----------
replacement of any Improvements, Collateral or Trust Premises, as such terms are
defined in each Mortgage, in accordance with the terms of each Mortgage.
"Restricted Payments" means, collectively, with respect to any Person (i)
-------------------
the declaration or payment of any dividend or other distribution on shares of
such Person's or a Restricted Subsidiary's Capital Stock (except dividends or
distributions in additional shares of Capital Stock, other than Redeemable
Stock, or any dividend or distribution by a Restricted Subsidiary to the
Borrower or one of its Wholly Owned Restricted Subsidiaries), (ii) any payment
on account of the purchase, redemption, retirement or other acquisition of any
shares of the Borrower or a Restricted Subsidiary's Capital Stock or any option,
warrant or other right to acquire such shares, or (iii) any defeasance,
redemption, repurchase or other acquisition or retirement for value prior to
scheduled maturity, scheduled repayment, or scheduled sinking fund payment of
any Indebtedness subordinate in right of payment to the Term Notes; provided,
--------
however, that the following items shall not be deemed to be Restricted Payments:
-------
(i) payments by the Borrower pursuant to the Tax Allocation Agreement or any
(ii) payments by the Borrower to Parent pursuant to the terms of the Management
Agreement, provided that the 5% service fee referred to in Section 5(b) of the
Management Agreement shall not exceed $200,000 per annum.
"Restricted Subsidiary" means (i) any Subsidiary of the Borrower which
---------------------
exists on the date of this Agreement and (ii) any other such Subsidiary which
the Borrower has not classified as an Unrestricted Subsidiary. The Borrower by
resolution of its Board of Directors may classify a Subsidiary as an
Unrestricted Subsidiary until such time as the Borrower may, by further
resolution of its Board of Directors, classify such Subsidiary as a Restricted
Subsidiary.
-19-
"Revolving Credit Agreement" means the Amended and Restated Credit
--------------------------
Agreement dated as of March 24, 1998 (amending and restating the Credit
Agreement dated as of March 3, 1993), between Xxxxx X. Xxxxxxxxx Holding
Company, Inc., the Borrower and BT Commercial Corporation, as agent, and the
lenders named therein, as further amended, supplemented, restated or otherwise
modified from time to time (including any renewals or refinancings thereof) in
accordance with the provisions hereof and thereof pursuant to which the lenders
thereunder have agreed to provide the Borrower and/or any of its Subsidiaries
with an initial aggregate revolving commitment of not less than $220,000,000.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
---
Inc.
"Sale and Leaseback Transaction" of any Person means an arrangement with
------------------------------
any other Person or to which such other Person is a party providing for the
leasing by such Person of any property or asset of such Person which has been or
is being sold or transferred by such Person more than 270 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such other Person or to any Person to whom funds have been
or are to be advanced by such other Person on the security of such property or
asset. The stated maturity of such arrangement shall be the date of the last
payment of rent or any other amount due under such arrangement prior to the
first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Security Agreement" means the security agreement dated as of March 24,
------------------
1998, between the Borrower, the Administrative Agent and the Restricted
Subsidiaries of the Borrower from time to time party thereto, substantially in
the form of Exhibit E attached hereto.
---------
"Security Documents" means (i) each Mortgage, (ii) the Security Agreement,
------------------
and (iii) all security agreements, mortgages, deeds of trust, pledges,
collateral assignments or any other instrument evidencing or creating any
security interest in favor of the Administrative Agent in all or any portion of
the Collateral, in each case as amended, supplemented or otherwise modified from
time to time.
"Senior Indebtedness" means Indebtedness of the Borrower which is not by
-------------------
its terms subordinated to the Term Notes.
"Senior Note Indenture" means the Indenture dated as of March 24, 1998,
---------------------
among the Borrower and United States Trust Company of New York, as Trustee, as
the same may be amended, restated, amended and restated or otherwise modified
from time to time in accordance with the terms hereof and thereof.
"Senior Note Offering" is defined in the second recital.
-------------------- --------------
"Senior Notes" means the 9 1/2% Senior Notes due 2005 of the Borrower
------------
issued pursuant to the Senior Note Offering and the Senior Note Indenture,
including, without limitation, any senior secured notes of the Borrower with
substantially identical terms exchanged therefor pursuant to a registration
statement under the Securities Act of 1933, as amended.
"Stated Maturity Date" means, in the case of all Term Loans, March 31,
--------------------
2004.
"Stockholders Agreement" is defined in Section 7.2.3.
---------------------- -------------
-20-
"Subordinated Indebtedness" means Indebtedness of the Borrower subordinated
-------------------------
in right of payment to the Obligations.
"Subsidiary" means, with respect to any Person, (i) any corporation or
----------
other entity of which a majority of the total voting power of the shares of
Capital Stock or other ownership interests having voting power to elect a
majority of the Board of Directors or other Persons performing similar functions
is at the time owned directly or indirectly by such Person or (ii) any
partnership or joint venture at least a majority of the voting power of which is
directly or indirectly owned by such Person, whether in the form of membership,
general, special or limited partnership interest or otherwise.
"Surviving Entity" is defined in Section 7.2.5.
---------------- -------------
"Syndication Agent" is defined in the preamble and includes each other
----------------- --------
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to Section 9.4.
-----------
"Tax Allocation Agreement" means that certain Tax Allocation Agreement, as
------------------------
signed and dated as of March 8, 1993, between the Parent and the Borrower.
"Taxes" is defined in Section 4.6.
----- -----------
"Telerate Page 3750" means the display designated as "Page 3750" on the
------------------
Telerate Service (or such other page as may replace Page 3750 on the service or
such other service as may be nominated by British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
interest settlement rates for Dollar deposits).
"Term Loan" is defined in Section 2.1.1.
--------- -------------
"Term Loan Commitment" is defined in Section 2.1.1.
-------------------- -------------
"Term Loan Commitment Amount" means $100,000,000.
---------------------------
"Term Loan Commitment Termination Date" means the earliest of (i) March 31,
-------------------------------------
1998, if the Term Loans have not been made on or prior to such date, (ii) the
Closing Date (immediately after the making of the Term Loans on such date), and
(iii) the date on which any Commitment Termination Event occurs.
"Term Note" means a promissory note of the Borrower payable to the order of
---------
any Lender, in the form of Exhibit A hereto (as such promissory note may be
---------
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term Loans, and also means all other promissory notes accepted from time to time
in substitution therefor or renewal thereof.
"Total Amount" is defined in Section 7.2.1.
------------ -------------
"Transaction" means, collectively, the transactions described in the second
----------- ------
and third recitals.
----- --------
-21-
"Transaction Documents" means the Senior Note Indenture, the form of Senior
---------------------
Note, the Revolving Credit Agreement and all other agreements, documents,
instruments, certificates, filings, consents, approvals, board of directors
resolutions and opinions furnished pursuant to or in connection with the
Transaction and the transactions contemplated hereby or thereby, including pay-
off letters and releases, each as amended, supplemented, amended and restated or
otherwise modified from time to time as permitted in accordance with the terms
hereof or of any other Loan Document.
"Trust Moneys" means all cash or Cash Equivalents received by the
------------
Administrative Agent: (a) in exchange for the release of property from the Lien
of any of the Security Documents; (b) as compensation for or proceeds of the
sale of all or any part of the Collateral taken by eminent domain or purchased
by, or sold pursuant to any order of, a governmental authority or otherwise
disposed of; (c) as proceeds of insurance upon any, all or part of the
Collateral (other than any liability insurance proceeds payable to the
Administrative Agent for any loss, liability or expense incurred by it); (d) as
proceeds of any other sale or other disposition of all or any part of the
Collateral by or on behalf of either of the Administrative Agent or any
collection, recovery, receipt, appropriation or other realization of or from all
or any part of the Collateral pursuant to the Security Documents or otherwise;
or (e) for application under this Agreement as provided in this Agreement or any
other Security Document, or whose disposition is not otherwise specifically
provided for in this Agreement or in any other Security Document.
"type" means, relative to any Term Loan, the portion thereof, if any, being
----
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
---
the State of New York.
"United States" or "U.S." means the United States of America, its fifty
------------- ----
states and the District of Columbia.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower which the
-----------------------
Borrower by resolution of its Board of Directors shall classify as an
Unrestricted Subsidiary and any such Subsidiary of an Unrestricted Subsidiary
until such time as (i) the Borrower may, by further resolution of its Board of
Directors classify such Subsidiary as a Restricted Subsidiary or (ii) the
Borrower or any of its Restricted Subsidiaries becomes directly or indirectly
liable in respect of any contractual obligation or Indebtedness of such
Unrestricted Subsidiary. A Subsidiary of the Borrower may only be classified as
an Unrestricted Subsidiary if immediately after such classification, there would
not be a Default or Event of Default under this Agreement and the Borrower and
its Restricted Subsidiaries would have only Investments in such Subsidiary which
would be permitted by Section 7.2.9. An Unrestricted Subsidiary of the Borrower
-------------
may only be reclassified as a Restricted Subsidiary if immediately after giving
effect to such reclassification, there would be no Default or Event of Default
under this Agreement and the Borrower and Restricted Subsidiaries could create,
assume, guarantee or suffer to exist $1.00 of additional Indebtedness (other
than Permitted Indebtedness). Any valid classification shall be effective as of
the date specified in the applicable resolution of the Borrower's Board of
Directors, which shall not be prior to the date such resolution is made.
"Welfare Plan" means a "welfare plan", as such term is defined in Section
------------ ------------
3(l) of ERISA.
-22-
"Wholly Owned Restricted Subsidiary" means, with respect to any Person, a
----------------------------------
Restricted Subsidiary all of whose capital stock (other than directors'
qualifying shares) or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions and other equity interests are at the time owned directly or
indirectly by such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
--------------------
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each other Loan Document, notice and other communication delivered from time to
time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
----------------
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
---------------------------------------
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder shall be made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared in accordance with GAAP, as in effect
from time to time and, unless otherwise expressly provided herein, and which
shall be computed or determined on a consolidated basis and without duplication.
SECTION 1.5. Use of UCC Terms. Unless the context otherwise requires, the
----------------
terms "accounts receivable", "inventory" and "general intangibles" shall have
the meanings ascribed thereto in the UCC.
SECTION 1.6. Officers' Certificates and Opinions. Every Officers'
-----------------------------------
Certificate or Opinion of Counsel with respect to compliance with a condition or
covenant provided for in this Agreement or any other Loan Document shall be
addressed to the Administrative Agent and each of the Lenders and shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinion contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
-23-
Absent any actual knowledge obtained pursuant to a written notice delivered by
any party hereto in accordance with the terms hereof to the contrary, the
Administrative Agent may rely on any such certificate without further inquiry.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions of
-----------
this Agreement (including Article V), each Lender severally agrees to make Term
---------
Loans pursuant to the Term Loan Commitments described in this Section 2.1.
-----------
SECTION 2.1.1. Term Loan Commitments. On the Closing Date, which shall be a
---------------------
Business Day occurring prior to the Term Loan Commitment Termination Date, each
Lender will make loans (relative to such Lender, its "Term Loans") to the
----------
Borrower equal to such Lender's Percentage of the aggregate amount of the
Borrowing of Term Loans requested by the Borrower to be made on such day with
the commitment of each such Lender to make the Term Loans described in this
Section referred to as its "Term Loan Commitment". No amounts paid or prepaid
--------------------
with respect to any Term Loans may be reborrowed.
SECTION 2.1.2. Lenders Not Permitted or Required to Make the Term Loans. No
--------------------------------------------------------
Lender shall be permitted or required to, and the Borrower shall not request any
Lender to, make any Term Loan on the Closing Date if, after giving effect
thereto, the aggregate original principal amount of all the Term Loans
(a) of all Lenders would exceed the Term Loan Commitment Amount, or
(b) of such Lender would exceed such Lender's Percentage of the Term
Loan Commitment Amount.
SECTION 2.2. Borrowing Procedures and Funding Maintenance. By delivering
--------------------------------------------
a Borrowing Request to the Administrative Agent on or before 10:00 a.m. (New
York time) on a Business Day, the Borrower may request, on not less than one
Business Day's notice (in the case of Base Rate Loans) or three Business Days'
notice (in the case of LIBO Rate Loans), that a Borrowing be made on the Closing
Date. On the terms and subject to the conditions of this Agreement, each
Borrowing shall be comprised of the type of Term Loans, and shall be made on the
Business Day, specified in such Borrowing Request. On or before 11:00 a.m. (New
York time) on such Business Day each Lender shall deposit with the
Administrative Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the Administrative
Agent shall make such funds available to the Borrower by wire transfer to the
accounts the Borrower shall have specified in its Borrowing Request. No
Lender's obligation to make any Term Loan shall be affected by any other
Lender's failure to make any Term Loan.
SECTION 2.3. Continuation and Conversion Elections. By delivering a
-------------------------------------
Continuation/Conversion Notice to the Administrative Agent on or before 10:00
a.m. (New York time) on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice (in the case of a
conversion of LIBO Rate Loans to Base Rate Loans)
-24-
or three Business Days' notice (in the case of a continuation of LIBO Rate Loans
or a conversion of Base Rate Loans into LIBO Rate Loans) nor more than five
Business Days' notice that all, or any portion in a minimum amount of $5,000,000
or any larger integral multiple of $1,000,000, be, in the case of Base Rate
Loans, converted into LIBO Rate Loans or a minimum amount of $1,000,000 or any
larger integral multiple of $250,000, in the case of LIBO Rate Loans, converted
into Base Rate Loans or continued as LIBO Rate Loans (in the absence of delivery
of a Continuation/Conversion Notice with respect to any LIBO Rate Loan at least
three Business Days before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically
convert to a Base Rate Loan); provided, however, that (x) each such conversion
-------- -------
or continuation shall be pro rated among the applicable outstanding Term Loans
of all Lenders, and (y) no portion of the outstanding principal amount of any
Term Loans may be continued as, or be converted into, LIBO Rate Loans when any
Default has occurred and is continuing.
SECTION 2.4. Funding. Each Lender may, if it so elects, fulfill its
-------
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
--------
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
-------
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
----------- --- --- ---
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.5. Loan Accounts. (a) The Term Loans made by each Lender shall
-------------
be evidenced by one or more loan accounts or records maintained by such Lender
in the ordinary course of business. The loan accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Term Loans made by the Lenders to or for the account
of the Borrower and the interest and payments thereon. Any failure so to record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Term Loans.
(b) Upon the request of any Lender made through the Administrative Agent,
solely to facilitate the pledge or assignment pursuant to Section 10.11.1 of its
---------------
Term Loans to any Federal Reserve Bank or, in the case of a Lender that is an
investment fund, to a trustee or any other representative of holders of
obligations or securities issued by such investment fund as security for such
obligations or securities, the Term Loans made by such Lender may be evidenced
by one or more Term Notes, in addition to loan accounts. Each such Lender is
irrevocably authorized by the Borrower to endorse on the schedules annexed to
its Term Note(s) the date, amount and maturity of each Term Loan made, continued
or converted by it and the amount of each payment of principal made by the
Borrower with respect thereto. Each such Lender's record shall be conclusive
absent manifest error; provided, however, that the failure of a Lender to make,
-------- -------
or an error in making, a notation thereon with respect to any Term Loan shall
not limit or otherwise affect the obligations of the Borrower hereunder or under
any such Term Note to such Lender.
-25-
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
---------------------------------------
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
--------------------------
full the unpaid principal amount of each Term Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Term Loans; provided, however, that
-------- -------
(i) any such prepayment shall be made pro rata among Term Loans
--- ----
of the same type and, if applicable, having the same Interest Period
of all Lenders;
(ii) the Borrower shall comply with Section 4.4 in the event
-----------
that any LIBO Rate Loan is prepaid on any day other than the last day
of the Interest Period for such Term Loan;
(iii) all such voluntary prepayments shall require at least one
Business Day's notice in the case of Base Rate Loans and three
Business Days' notice in the case of LIBO Rate Loans, but no more than
five Business Days' notice, in each case in writing to the
Administrative Agent; and
(iv) all such voluntary partial prepayments shall be, in the
case of LIBO Rate Loans, in an aggregate minimum amount of $5,000,000
or any larger integral multiple of $1,000,000 and, in the case of Base
Rate Loans, in an aggregate minimum amount of $1,000,000 or any larger
integral multiple of $250,000 or in the aggregate principal amount of
all Term Loans of the type then outstanding; and
(v) any voluntary prepayment of Term Loans made on or prior to
the third anniversary of the Closing Date shall be subject to the
payment of a premium, as set forth below:
(A) 3.0% of the principal amount of Term Loans prepaid
pursuant to this clause (a) of this Section 3.1.1 on or prior to
---------- -------------
the first anniversary of the Closing Date;
(B) 2.0% of the principal amount of Term Loans prepaid
pursuant to this clause (a) of this Section 3.1.1 subsequent to
---------- -------------
the first anniversary and prior to or on the second anniversary
of the Closing Date; and
(C) 1.0% of the principal amount of Term Loans prepaid
pursuant to this clause (a) of this Section 3.1.1 subsequent to
---------- -------------
the second anniversary and prior to or on the third anniversary
of the Closing Date;
-26-
provided further, however, that, notwithstanding the foregoing subclauses
---------------- ------- ----------
(i), (ii), (iii), (iv) and (v) of this clause (a) or any other provision of
--- ---- ----- ---- --- ----------
this Agreement (including Section 4.8), the Borrower may purchase all or
-----------
any portion of the Term Loans of any Lender pursuant to an agreement
between such Lender and the Borrower and such purchase shall not be deemed
to be a voluntary prepayment hereunder (provided that (x) an Event of
Default has not then occurred and is not then continuing or would not occur
as a result of such purchase, (y) the Administrative Agent acknowledges
receipt of a copy of such agreement and (z) the Term Loans so purchased or
held by any Affiliate of the Borrower are disregarded and not deemed
outstanding (as to which the Borrower hereby agrees) for purposes of (1)
the making of, or the application of, any payments to the Lenders hereunder
or under any other Loan Document, (2) the making of any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
other Loan Document or (3) the determination of Required Lenders, or for
any similar or related purpose hereunder or under any other Loan Document);
(b) shall make a mandatory prepayment of the Term Loans on account of
Net Proceeds in accordance with Section 7.2.6;
-------------
(c) shall, (i) on each Quarterly Payment Date occurring prior to the
Stated Maturity Date, make a scheduled repayment of the aggregate
outstanding principal amount, if any, of all Term Loans in an amount equal
to $250,000 and (ii) on the Stated Maturity Date, make a scheduled
repayment of the outstanding principal amount of all Term Loans in the
amount of $94,250,000 (in each case as such amounts may have otherwise been
reduced pursuant to this Agreement).
(d) shall, subject to Section 3.1.2, make a mandatory prepayment in
-------------
full of all of the Term Loans upon the occurrence of a Change of Control;
and
(e) shall, immediately upon the acceleration of the Stated Maturity
Date of any Term Loans pursuant to Section 8.2 or Section 8.3, repay all
----------- -----------
outstanding Term Loans, unless, pursuant to Section 8.3, only a portion of
-----------
all Term Loans are so accelerated (in which case the portion so accelerated
shall be so prepaid).
Each prepayment of any Term Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by clause (a)(v) of this Section
-------------
and/or Section 4.4.
-----------
SECTION 3.1.2. Application. Amounts prepaid and repaid shall be applied
-----------
as set forth in this Section.
(a) Subject to clauses (b) and (c) below, each prepayment or
----------- ---
repayment of principal of the Term Loans shall be applied, to the extent of
such prepayment or repayment, first, to the principal amount thereof being
-----
maintained as Base Rate Loans, and second, to the principal amount thereof
------
being maintained as LIBO Rate Loans.
(b) Each prepayment of any Term Loans made pursuant to clause (a) of
----------
Section 3.1.1 shall be applied, to the extent of such prepayment, in the
-------------
inverse order of the scheduled repayments of such Term Loans, as set forth
in clause (c) of Section 3.1.1 with respect to such Term Loans.
---------- -------------
-27-
(c) Each prepayment of Term Loans made pursuant to clause (b) or
----------
clause (d) of Section 3.1.1 shall be applied to the outstanding principal
---------- -------------
amount of all Term Loans, except that, (i) with respect to the amount of
any such prepayment, the Administrative Agent will as soon as is
practicable (but in any event no later than the date on which the Borrower
has provided such prepayment to the Administrative Agent) provide notice of
such prepayment to each Lender prior to the distribution of the funds from
such prepayment, and (ii) each Lender will have the right to refuse any
such prepayment by giving written notice of such refusal to the
Administrative Agent within three Business Days after such Lender's receipt
of notice from the Administrative Agent of such prepayment. In addition,
any prepayment of Term Loans shall be applied to the remaining amortization
payments in the inverse order of the scheduled repayments of such Term
Loans, as set forth in clause (c) of Section 3.1.1 with respect to such
---------- -------------
Term Loans.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
-------------------
amount of the Term Loans shall accrue and be payable in accordance with this
Section 3.2.
-----------
SECTION 3.2.1. Rates. Each Base Rate Loan shall accrue interest on the
-----
unpaid principal amount thereof for each day from and including the day upon
which such was made or converted to a Base Rate Loan to but excluding the date
such Term Loan is repaid or converted to a LIBO Rate Loan at a rate per annum
equal to the sum of the Alternate Base Rate for such day plus the Applicable
Margin for such Term Loan on such day. Each LIBO Rate Loan shall accrue
interest on the unpaid principal amount thereof for each day during each
Interest Period applicable thereto at a rate per annum equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the Applicable Margin
for such Term Loan on such day. All LIBO Rate Loans shall bear interest from
and including the first day of the applicable Interest Period to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Default Rates. Upon the occurrence and continuance of (i)
-------------
any Default described in Section 8.1.1 or (ii) any Event of Default, all Term
-------------
Loans shall bear, and the Borrower shall pay, but only to the extent permitted
by law, interest (after as well as before judgment) thereon at a rate per annum
equal to the rate that would otherwise be applicable to such Term Loans pursuant
to Section 3.2.1 plus 2.0%.
-------------
SECTION 3.2.3. Payment Dates. Interest accrued on each Term Loan shall be
-------------
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Term Loan;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the Closing Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed three
months, at intervals of three months after the first day of such Interest
Period);
-28-
(e) with respect to the principal amount of any Base Rate Loans
converted into LIBO Rate Loans on a day when interest would not otherwise
have been payable pursuant to clause (c), on the date of such conversion;
----------
and
(f) on that portion of any Term Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3, immediately
----------- -----------
upon such acceleration.
Interest accrued on Term Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in this
----
Section 3.3. All such fees shall be non-refundable.
-----------
SECTION 3.3.1. Arrangement, Structuring and Commitment Fees. The Borrower
--------------------------------------------
shall pay on the Effective Date to the Arranger and the Syndication Agent for
their account the arrangement and structuring fee mutually agreed upon by the
Borrower, the Arranger and the Syndication Agent.
SECTION 3.3.2. Administrative Agent Fee. The Borrower agrees to pay an
------------------------
annual administration fee to the Administrative Agent, for its own account, in
the amounts mutually agreed to between the Borrower and the Administrative Agent
pursuant to the Fee Letter, payable in advance on the Closing Date and annually
thereafter.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If the Required Lenders shall
--------------------------
determine (which determination shall, upon notice thereof to the Borrower and
the Lenders, be conclusive and binding on the Borrower) that the introduction of
or any change in or in the interpretation of any law makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
such Lender to make, continue or maintain any Term Loan as, or to convert any
Term Loan into, a LIBO Rate Loan of a certain type, the obligations of all
Lenders to make, continue, maintain or convert any such Term Loans shall, upon
such determination, forthwith be suspended until the Required Lenders shall
notify the Administrative Agent that the circumstances causing such suspension
no longer exist, and all LIBO Rate Loans of such type shall automatically
convert into Base Rate Loans at the end of the then current Interest Periods
with respect thereto or sooner, if required by such law or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have
--------------------
determined that (i) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to the Administrative Agent in its relevant
market, or (ii) by reason of circumstances affecting the Administrative Agent's
relevant market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans, then, upon notice from the
Administrative Agent to the Borrower and the Lenders, the obligations of all
Lenders under Section 2.3 and Section 2.4 to make or continue any Term Loans as,
----------- -----------
or to convert any Term Loans into, LIBO Rate Loans shall forthwith be suspended
until the Administrative Agent shall
-29-
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees to
-----------------------------------
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Term Loans as, or of converting (or of its obligation to convert)
any Term Loans into, LIBO Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the
Borrower directly to such Lender within five days of its receipt of such notice,
and such notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss
--------------
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Term Loan as, or
to convert any portion of the principal amount of any Term Loan into, a LIBO
Rate Loan) as a result of (i) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to Section 3.1
-----------
or otherwise, (ii) Borrower's failure to borrow any Term Loans as LIBO Rate
Loans in accordance with the Borrowing Request therefor, or (iii) Borrower's
failure to continue, or to convert Base Rate Loans into LIBO Rate Loans in
accordance with the Continuation/Conversion Notice therefor, then, upon the
written notice of such Lender to the Borrower (with a copy to the Administrative
Agent), the Borrower shall, within five days of its receipt thereof, pay
directly to such Lender such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. Such written
notice (which shall include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
-----------------------
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Term Loan Commitment or the Term Loans made by such Lender is
reduced to a level below that which such Lender or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any such
case upon notice from time to time by such Lender to the Borrower, the Borrower
shall immediately pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction in rate of
return. A statement of such Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on the Borrower. In determining such
amount, such Lender may use any method of averaging and attribution that it (in
its sole and absolute discretion) shall deem applicable.
-30-
SECTION 4.6. Taxes. All payments by the Borrower of principal of, and
-----
interest on, the Term Loans and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "Taxes"). In the event
-----
that any withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Borrower will
(a) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing
such payment to such authority; and
(c) pay to the Administrative Agent for the account of the Lenders
and the Administrative Agent, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received by
each Lender and the Administrative Agent, as the case may be, will equal
the full amount such Lender and the Administrative Agent, as the case may
be, would have received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders and the Administrative Agent, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Lenders and the Administrative Agent, as the case may be, for any
incremental Taxes, interest or penalties that may become payable by any Lender
and the Administrative Agent, as the case may be, as a result of any such
failure. For purposes of this Section 4.6, a distribution hereunder by the
-----------
Administrative Agent or any Lender to or for the account of any Lender and the
Administrative Agent, as the case may be, shall be deemed a payment by the
Borrower.
Each Lender that is organized under the laws of a jurisdiction other than
the United States shall, prior to the due date of any payments under the Term
Notes, execute and deliver to the Borrower and the Administrative Agent, on or
about the first scheduled payment date in each Fiscal Year, one or more (as the
Borrower or the Administrative Agent may reasonably request) United States
Internal Revenue Service Forms 4224 or Forms 1001, or, in the case of any such
Lender that is not legally entitled to deliver either such form, (x) a
certificate of a duly authorized officer of such Lender to the effect that such
Lender is not (A) a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (B) a "10 percent shareholder" of the Borrower
-31-
within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person within the meaning
of Section 881(c)(3)(C) of the Code and (y) two duly completed copies of
Internal Revenue Service Form W-8 or applicable successor form, or such other
forms or documents (or successor forms or documents), appropriately completed,
as may be applicable to establish the extent, if any, to which a payment to such
Lender is exempt from withholding or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
---------------------------
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Term Notes or any other Loan Document shall be made by the
Borrower to the Administrative Agent for the pro rata account of the Lenders or
--- ----
Agents, as applicable, entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 11:00 a.m. (New York time) on the date
due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Borrower.
Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Lender, Agent or Arranger,
as the case may be, its share, if any, of such payments received by the
Administrative Agent for the account of such Lender, Agent or Arranger, as the
case may be. All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days (or, in the case of interest on a Base Rate Loan that is
not calculated at the Federal Funds Rate, 365 days or, if appropriate, 366
days). Whenever any payment to be made shall otherwise be due on a day which is
not a Business Day, such payment shall (except as otherwise required by clause
------
(i) of the definition of the term "Interest Period" with respect to LIBO Rate
--- ---------------
Loans) be made on the next succeeding Business Day and such extension of time
shall be included in computing interest and fees, if any, in connection with
such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any payment
-------------------
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Term Loan (other than pursuant to the terms of
Sections 4.3, 4.4 and 4.5) in excess of its pro rata share of payments then or
------------ --- --- --- ----
therewith obtained by all Lenders entitled thereto, such Lender shall purchase
from the other Lenders such participations in the Term Loans made by them as
shall be necessary to cause such purchasing Lender to share the excess payment
or other recovery ratably with each of them; provided, however, that if all or
-------- -------
any portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and each Lender which
has sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Lender's ratable share (according to the
proportion of (i) the amount of such selling Lender's required repayment to the
purchasing Lender in respect of such recovery, to (ii) the total amount so
--
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section may, to the fullest extent permitted by law,
exercise all its rights of payment (including pursuant to Section 4.9) with
-----------
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 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
-32-
Lenders entitled under this Section to share in the benefits of any recovery on
such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any Event
------
of Default described in Section 8.1.9 with respect to any Obligor or, with the
-------------
consent of the Required Lenders, upon the occurrence of any other Event of
Default, to the fullest extent permitted by law, have the right to appropriate
and apply to the payment of the Obligations then owing to it (whether or not
then due), and (as security for such Obligations) the Borrower hereby grants to
each Lender a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter maintained with
or otherwise held by such Lender; provided, however, that any such appropriation
-------- -------
and application shall be subject to the provisions of Section 4.8. Each Lender
-----------
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
-------- -------
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.10. Replacement of Lender. Each Lender agrees that, upon the
---------------------
occurrence of any event set forth in Section 4.1, 4.3 or 4.5, such Lender will
----------- --- ---
use reasonable efforts to book and maintain its Loans through a different
lending office or to transfer its Term Loans to an Affiliate with the objective
of avoiding or minimizing the consequences of such event; provided that such
--------
booking or transfer is not otherwise disadvantageous to such Lender as
determined by such Lender in its sole and absolute discretion. If any Lender
has demanded to be paid additional amounts pursuant to Section 4.3 or 4.5 and
----------- ---
the payment of such additional amounts are, and are likely to continue to be,
more onerous in the reasonable judgment of the Borrower than with respect to the
other Lenders, then the Borrower shall have the right at any time when no
Default shall have occurred and be continuing to seek one or more financial
institutions which are not Affiliates of the Borrower (each, a "Replacement
-----------
Lender") to purchase with the written consents of the Syndication Agent and the
------
Administrative Agent (which consents shall not be (x) required if such proposed
Replacement Lender is already a Lender, an Affiliate of a Lender or an Approved
Fund or (y) unreasonably delayed or withheld) the outstanding Term Loans of such
Lender (the "Affected Lender"), and if the Borrower locates a Replacement
---------------
Lender, the Affected Lender shall, upon
(i) prior written notice to the Administrative Agent,
(ii) (A) payment to the Affected Lender of the purchase price agreed
between it and the Replacement Lender (or, failing such agreement, a
purchase price in the amount of the outstanding principal amount of the
Affected Lender's Term Loans and accrued interest thereon to the date of
payment) by the Replacement Lender plus (B) payment by the Borrower of all
amounts (other than principal and interest) then due to the Affected Lender
or accrued for its account hereunder or under any other Loan Document,
(iii) satisfaction of the provisions set forth in Section 10.11.1,
---------------
and
(iv) payment by the Borrower to the Affected Lender and the
Administrative Agent of all reasonable out-of-pocket expenses in connection
with such assignment and assumption (including the processing fees
described in Section 10.11.1),
---------------
-33-
assign and delegate all its rights and obligations under this Agreement and any
other Loan Document to which it is a party (including its outstanding Term
Loans) to the Replacement Lender (such assignment to be made without recourse,
representation or warranty), and the Replacement Lender shall assume such rights
and obligations, whereupon the Replacement Lender shall in accordance with
Section 10.11.1 become a party to each Loan Document to which the Affected
---------------
Lender is a party and shall have the rights and obligations of a Lender
thereunder and the Affected Lender shall be released from its obligations
hereunder and each other Loan Document to the extent of such assignment and
delegation.
ARTICLE V
CONDITIONS TO TERM LOAN EXTENSION
The obligation of each Lender to fund its Term Loans shall be subject to
the prior or concurrent satisfaction of each of the conditions precedent set
forth in this Article V.
---------
SECTION 5.1. Resolutions, etc. The Agents shall have received from the
----------------
Borrower and each other Obligor a certificate, dated the Closing Date, of its
Secretary or Assistant Secretary as to (i) resolutions of its Board of Directors
then in full force and effect authorizing the execution, delivery and
performance of each Loan Document to be executed by it, and (ii) the incumbency
and signatures of those of its officers authorized to act with respect to each
Loan Document executed by it, upon which certificate each Agent and each Lender
may conclusively rely until it shall have received a further certificate of the
Secretary or Assistant Secretary of the Borrower or such other Obligor canceling
or amending such prior certificate.
SECTION 5.2. Borrowing Request. The Agents shall have received a Borrowing
-----------------
Request for the Term Loans to be made on the Closing Date.
SECTION 5.3. Issuance of the Senior Notes. The Agents shall have received
----------------------------
evidence satisfactory to each of them that the Borrower shall have received
gross proceeds from the issuance of the Senior Notes which, when added to the
aggregate principal amount of Term Loans to be borrowed hereunder, equal to
$205,000,000, and the Agents shall be satisfied with all terms and provisions of
all documentation relating to such Senior Notes.
SECTION 5.4. Revolving Credit Agreement. The Agents shall have received
--------------------------
copies of fully executed versions of the Revolving Credit Agreement, certified
to be true and complete copies thereof by an Authorized Officer of the Borrower,
and be satisfied with the terms of such Revolving Credit Agreement. As of the
Closing Date, each condition to the closing contemplated by the Revolving Credit
Agreement shall have been satisfied or waived. There shall exist at and as of
the Closing Date (after giving effect to the transactions contemplated by the
Revolving Credit Agreement) no conditions that would constitute a default or
event of default under the Revolving Credit Agreement.
SECTION 5.5. Payment of Outstanding Indebtedness, etc. (a) The Borrower
----------------------------------------
shall have deposited funds not exceeding approximately $162,500,000 with the
trustee under the Outstanding Note Indenture for the purpose of defeasing or
redeeming all Outstanding Notes on or prior to April 23, 1998, pursuant to
documents (including the documents described in Section 8.01 of the Outstanding
Note Indenture) in form and substance satisfactory to the Agents.
-34-
(b) The Borrower shall have deposited funds not exceeding $5,100,000 with
TITLESERV Agency of New York, as escrow agent (the "Escrow Agent"), under an
------------
escrow agreement in form and substance satisfactory to the Agents (the "Escrow
------
Agreement"), and Xxxxxx Financial, Inc. shall have delivered to the Escrow Agent
---------
all mortgage releases, Uniform Commercial Code Form UCC-3 termination statements
and other instruments as may be suitable or appropriate to release all Liens
securing payment of the obligations under the Xxxxxx Documents.
SECTION 5.6. Amendment of Notes. The Parent shall have entered into an
------------------
agreement with the holders of the Parent Notes, amending the Parent Notes and
the terms applicable thereto, which agreement (and related documents) shall be
in form and substance satisfactory to the Arranger, the Administrative Agent and
the Syndication Agent and which shall include provisions extending the maturity
date of the Parent Notes to a date no earlier than March 20, 2006.
SECTION 5.7. Transaction Documents. The Arranger, the Syndication Agent
---------------------
and the Administrative Agent shall have received (with copies for each Lender
that shall have expressly requested copies thereof) copies of fully executed
versions of the Senior Note Indenture and all other material Transaction
Documents, certified to be true and complete copies thereof by an Authorized
Officer of the Borrower, and be satisfied with the terms of all such agreements
and documents. The Arranger, the Syndication Agent and the Administrative Agent
shall be reasonably satisfied with all other aspects of the Transaction,
including the aggregate sources and uses of proceeds utilized to consummate the
Transaction.
SECTION 5.8. Additional Security Documents. The Arranger, the Syndication
-----------------------------
Agent and the Administrative Agent shall have received executed versions of the
other Security Documents (other than the Mortgages), duly executed by the
appropriate party thereto, together with:
(a) duly executed UCC-1 financing statements or other documents under
the provisions of the UCC or any other applicable state law in proper form
for filing in each office where such filing is necessary or appropriate to
grant to the Administrative Agent the Liens of the character and priority
contemplated by the Security Documents;
(b) the Agents shall have received from such party certified copies
of Uniform Commercial Code Requests for Information or Copies (Form UCC-
11), or a similar search report certified by a party acceptable to the
Administrative Agent, dated a date reasonably near (but prior to), the
Closing Date, listing all effective financing statements, tax liens and
judgment liens which name such party as the debtor and which are filed in
the jurisdictions in which filings are to be made pursuant to this
Agreement and the other Loan Documents, and in such other jurisdictions as
any Agent may reasonably request, together with copies of such financing
statements (none of which (other than financing statements (i) filed
pursuant to the terms hereof in favor of the Administrative Agent, if such
Form UCC-11 or search report, as the case may be, is current enough to list
such financing statements, (ii) being terminated pursuant to termination
statements that are to be delivered to the Administrative Agent or, in the
case of the Xxxxxx Documents, the Escrow Agent on or prior to the Closing
Date, or (iii) in respect of Liens permitted under Section 7.2.2) shall
-------------
cover any of the Collateral described in the Security Agreement); and
-35-
(c) evidence that all other actions necessary to perfect and protect
the Liens created by the Security Documents have been taken.
SECTION 5.9. Mortgages. The Borrower shall have caused to be delivered to
---------
the Administrative Agent, with copies to the Syndication Agent and the
Documentation Agent, the following documents and instruments with regard to each
Mortgaged Property, providing for first priority mortgages (subject to the prior
mortgage in favor of Society National Bank, Indiana with respect to the
Borrower's real property and plant in Plainfield, Indiana, securing a principal
amount not exceeding $4,500,000 (the "Plainfield Mortgage")):
-------------------
(a) a Mortgage, in form and substance satisfactory to the Agents,
duly executed by the owner of such Mortgaged Property, together with
evidence of the due recordation thereof in the appropriate recording office
of the political subdivision where such Mortgaged Property is situated (or
evidence reasonably satisfactory to the Agents that such Mortgage, as
appropriate, has been delivered to a nationally-recognized title insurance
company for recording and that all fees, taxes and other expenses
associated with such recording have been paid);
(b) a mortgagee policy of title insurance (or endorsement thereto, as
appropriate) in favor of the Administrative Agent, issued by such title
insurance company, in such amounts, with such endorsements, affirmative
coverages, and reinsurance agreements as the Agents shall reasonably
require, and otherwise in form and substance reasonably satisfactory to the
Agents, insuring each Mortgage as a first lien on the property and
interests covered thereby subject only to the Plainfield Mortgage and such
other matters as are acceptable to the Agents, together with evidence that
all premiums in respect of such policies have been paid in full and true
and complete copies of all documents referred to therein;
(c) certified perimeter surveys of the real property, other than the
real property subject to the Plainfield Mortgage, covered by each Mortgage
by registered surveyors as of a date and in form and substance acceptable
to the Agents, bearing legal descriptions conforming exactly to those
contained in the title insurance policy referred to in the preceding clause
(b); indicating the length of exterior boundary lines of the Mortgaged
Property, locations of all buildings, utility or other easements, showing
the location of all easements of record, encroachments, if any, and means
of access to the real property from a public way; and the surveyor's
original certification to the Administrative Agent and the title insurance
company issuing the policies described in the preceding clause (b) and in
the case of surveys with respect to the Mortgaged Properties which are
dated more than 30 days prior to the Closing Date, such "affidavits of no
change" as may be required by such title companies to omit the standard
survey exception from such title insurance policies or endorsements;
(d) evidence reasonably satisfactory to the Agents of all filings of
financing statements under the UCC necessary or desirable to perfect the
valid, first-priority lien granted by each Mortgage (or evidence reasonably
satisfactory to the Agents that such financing statements have been
delivered to a nationally recognized title company for filing and that all
fees, taxes and other expenses associated with such filings have been
paid), together with such searches of UCC, judgment and tax lien records as
the Agents shall reasonably require;
-36-
(e) certificates of insurance with respect to the insurance required
to be maintained in respect of the property covered by each Mortgage
pursuant to the terms of this Agreement and the other Loan Documents,
naming the Administrative Agent as loss payee or additional named insured,
as appropriate; and
(f) such other agreements, instruments, approvals, consents,
opinions, or documents as the Agents request.
SECTION 5.10. Lien Waivers. The Agents shall have received evidence
------------
reasonably satisfactory to each of them that the Borrower has submitted to the
lessors under the leases described in Schedule IV lien waivers and releases in
-----------
form and substance satisfactory to the Agents for execution and acknowledgment
by such lessors, and that the Borrower has used its commercially reasonable
efforts to obtain such executed and acknowledged lien waivers and releases prior
to the Closing Date.
SECTION 5.11. Solvency Opinion. The Agents shall have received an opinion
----------------
from Xxxxxx, Xxxxxx & Co., Inc. which states that the Borrower is Solvent (as
defined in Section 6.14) and which is otherwise in form and substance
------------
satisfactory to the Agents, dated the Closing Date and addressed to the Agents
and all Lenders.
SECTION 5.12. Closing Date Certificates. The Agents shall have received,
-------------------------
with counterparts for each Lender, the Closing Date Certificates, substantially
in the form of Exhibits F and G hereto, respectively, dated the date hereof and
---------- -
duly executed and delivered by each of:
(a) the chief executive or financial (or equivalent) Authorized
Officer of the Borrower, in which certificate the Borrower shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of the Borrower made as of such date
under this Agreement (including that attached thereto are true and complete
copies of documents referred to herein or otherwise relating to the
Transaction, such as, but not limited to, any and all tax sharing
agreements and all agreements referred to in clause (iii) of the definition
------------
of "Permitted Transactions"), and, at the time such certificate is
----------------------
delivered, such statements shall in fact be true and correct; and
(b) the chief executive or financial (or equivalent) Authorized
Officer of the Parent, in which certificate the Parent shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of the Parent made as of such date
under this Agreement (including that attached thereto are true and complete
copies of documents referred to herein or otherwise relating to the
Transaction, such as, but not limited to, the agreements referred to in
Section 5.6) and, at the time such certificate is delivered, such
-----------
statements shall in fact be true and correct.
SECTION 5.13. Financial Information, etc. The Agents and the Lenders shall
--------------------------
have received:
(a) the audited consolidated financial statements of the Borrower and
its Subsidiaries for the fiscal years ended March 31, 1997; March 31, 1996;
and March 31, 1995;
-37-
(b) the unaudited consolidated financial statements of the Borrower
and its Subsidiaries for the Fiscal Quarters ending on or about June 30,
1997, September 30, 1997, and December 31, 1997; and
(c) a pro forma balance sheet of the Borrower as of December 31,
---------
1997, after giving effect to the contemplated Transaction and reflecting
the proposed capital structure as of the Closing Date, which capital
structure shall be satisfactory in all respects to the Agents.
SECTION 5.14. Litigation. There shall exist no pending or threatened
----------
material litigation, proceedings or investigations which (x) contest the
consummation of the Transaction or (y) except as set forth in Item 6.8
--------
("Litigation") of the Disclosure Schedule could reasonably be expected to have a
------------
Material Adverse Effect.
SECTION 5.15. Material Adverse Change. Since March 31, 1997, there has not
-----------------------
occurred or arisen any event or condition which has had or is reasonably likely
to have a Material Adverse Effect on the Borrower or its Subsidiaries.
SECTION 5.16. Consents and Approvals, etc. All governmental and third
---------------------------
party approvals necessary or advisable in connection with each aspect of the
Transaction and the continuing operations of the Borrower and its Subsidiaries
shall have been obtained and be in full force and effect or waived, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on any aspect of the Transaction.
SECTION 5.17. Insurance. The Agents shall have received evidence
---------
reasonably satisfactory to each of them that all insurance required by Section
-------
7.1.4 is in full force and effect with no default by the Borrower or any of its
-----
Subsidiaries, is fully paid and is not subject to cancellation without 30 days'
prior written notice to the Administrative Agent.
SECTION 5.18. Opinions of Counsel. The Agents shall have received opinions
-------------------
satisfactory to each of them in form and substance, dated the Closing Date and
addressed to the Agents and all Lenders from:
(a) Xxxxxx Xxxxxx & Zavis, counsel to the Borrower;
(b) Xxxxx Imanaka Schraff Kudo Xxxxx & Xxxxxxxx, special Hawaiian
counsel to the Borrower;
(c) Bernkopf, Xxxxxxx & Baseman, special Massachusetts counsel to the
Borrower;
(d) Xxxx & Xxxxxxx, special Minnesota counsel to the Borrower;
(e) Xxxxxxxx, Xxxxxxxx & Xxxxxx, special North Carolina counsel to
the Borrower;
(f) Xxxxxx & Daroff Co., L.P.A., special Ohio counsel to the
Borrower;
-38-
(g) McAfee & Xxxx, special Oklahoma counsel to the Borrower; and
(h) Xxxxx, Xxxx & Xxxxxxx, special Texas counsel to the Borrower.
SECTION 5.19. Closing Fees, Expenses, etc. The Lenders, the Agents and
---------------------------
the Arranger shall have received, each for their own respective accounts
(including in their capacity as a Lender), as the case may be, all fees, costs
and expenses due and payable pursuant to Sections 3.3 and 10.3).
------------ ----
SECTION 5.20. Satisfactory Legal Form. All documents executed or
-----------------------
submitted pursuant hereto and in connection with the Transaction by or on behalf
of the Borrower or any of its Subsidiaries or any other Obligors shall be
reasonably satisfactory in form and substance to the Agents; the Agents shall
have received all information, approvals, opinions, documents or instruments as
the Agents may request.
SECTION 5.21. No Default. No Default shall have then occurred and be
----------
continuing and there shall exist no event or occurrence which, with the giving
of notice or passage of time (or both), would constitute an Event of Default.
SECTION 5.22. Compliance with Warranties. The representations and
--------------------------
warranties set forth in Article VI and in each other Loan Document shall, in
----------
each case, be true and correct in all material respects with the same effect as
if then made (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct as of such earlier
date).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agents to enter into this Agreement
and to make the Term Loans hereunder, the Borrower represents and warrants unto
the Agents and each Lender as set forth in this Article VI.
----------
SECTION 6.1. Organization, etc. Each of the Borrower and its
-----------------
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its respective incorporation.
Each of the Borrower and its Subsidiaries is in good standing and is duly
qualified to do business in each jurisdiction where, because of the nature of
its activities or properties, such qualification is required, except for those
states in which its failure to qualify to do business would not be reasonably
likely to have a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The Borrower is
-----------------------------------------
duly authorized to execute and deliver this Agreement, the Term Notes, and each
other Loan Document to be executed by it and is duly authorized to borrow monies
hereunder and to perform its obligations under this Agreement, the Term Notes
and each other Loan Document to be executed by it. The execution, delivery and
performance by the Borrower of this Agreement, the Term Notes and each other
Loan Document to which it is a party and the Borrowings hereunder do not and
will not require any consent or approval of any governmental agency or
authority.
-39-
SECTION 6.3. No Conflicts. The execution, delivery and performance by
------------
the Borrower of this Agreement, the Term Notes and each other Loan Document to
which it is a party do not and will not conflict with (i) any provision of law,
(ii) the Certificate or Articles of Incorporation, as applicable, or bylaws, of
the Borrower, the Parent or any of their respective Subsidiaries, (iii) any
agreement binding upon the Borrower, the Parent or any of their respective
Subsidiaries which conflict is reasonably likely to have a Material Adverse
Effect or (iv) any court or administrative order or decree applicable to the
Borrower, the Parent or any of their respective Subsidiaries which conflict is
reasonably likely to have a Material Adverse Effect, and do not and will not
require, or result in, the creation or imposition of any Lien on any asset of
the Borrower, the Parent or any such Subsidiary, except as provided herein or in
any other Loan Document.
SECTION 6.4. Validity and Binding Effect. This Agreement, the Term Notes
---------------------------
and each other Loan Document contemplated by this Agreement, when duly executed
and delivered, will be legal, valid and binding obligations of the Borrower and
each other Obligor party thereto, as applicable, enforceable against the
Borrower and each such other Obligor in accordance with their respective terms.
SECTION 6.5. No Default. Neither the Borrower nor any Subsidiary of the
----------
Borrower is in default under any agreement or instrument to which the Borrower
or such Subsidiary is a party or by which any of their respective properties or
assets is bound or affected, which default is reasonably likely to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
SECTION 6.6. Financial Statements. Each of the financial statements of
--------------------
the Borrower referred to in Section 5.13 have been furnished to the Agents, have
------------
been prepared in conformity with GAAP applied on a basis consistent with that of
the preceding Fiscal Year and period, and present fairly the financial condition
of Borrower and its Subsidiaries as of such dates and the results of their
operations for the periods then ended, subject (in the case of the interim
financial statements) to year-end audit adjustments. Since March 31, 1997,
there has not occurred or arisen any event or condition which has had or is
reasonably likely to have a Material Adverse Effect.
SECTION 6.7. Insurance. Item 6.7 ("Insurance") of the Disclosure Schedule
--------- -------- ---------
is a complete and accurate summary of the property and casualty insurance
program carried by the Borrower and its Subsidiaries on the date hereof. Such
Item 6.7 includes name(s) of insurer(s), policy number(s), expiration date(s),
--------
amount(s) of coverage, type(s) of coverage, the annual premium(s), deductibles
and self-insured retention and describes any retrospective rating plan, fronting
arrangement or any other self-insurance or risk assumption agreed to by the
Borrower or any Subsidiary or imposed upon the Borrower or any Subsidiary by any
such insurer. This summary also includes any self-insurance program that is in
effect. Except as would not have a Material Adverse Effect, neither the
Borrower nor any of its Restricted Subsidiaries has received notice from any
insurer or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance.
SECTION 6.8. Litigation; Contingent Liabilities. (a) As of the date
----------------------------------
hereof, except for those referred to in Item 6.8 ("Litigation") of the
-------- ----------
Disclosure Schedule, there are no claims, litigation, arbitration proceedings or
governmental proceedings pending or threatened against or
-40-
affecting the Borrower or any of its Subsidiaries, the results of which are
reasonably likely to have a Material Adverse Effect.
(b) As of the date hereof, other than any liability incident to the
claims, litigation or proceedings disclosed in Item 6.8 or 6.19 of the
-------- ----
Disclosure Schedule or provided for or disclosed in the financial statements
referred to in Section 6.6, neither the Borrower nor any of its Subsidiaries has
-----------
any contingent liabilities which are reasonably likely to have a Material
Adverse Effect.
SECTION 6.9. Liens. None of the Collateral or other property, revenues or
-----
assets of the Borrower or any Restricted Subsidiary is subject to any Lien
except Liens permitted by Section 7.2.2.
-------------
SECTION 6.10. Subsidiaries. As of the date hereof, all of the Borrower's
------------
Subsidiaries are listed in Item 6.10 ("Subsidiaries") of the Disclosure
--------- ------------
Schedule. Item 6.10 of the Disclosure Schedule sets forth, for each such
---------
Subsidiary, a complete and accurate statement of (a) the Borrower's percentage
ownership of each of the Subsidiaries, (b) the state or other jurisdiction of
formation or incorporation of each Subsidiary and (c) each state in which each
Subsidiary is qualified to do business.
SECTION 6.11. Partnerships; Joint Ventures. As of the date hereof, neither
----------------------------
the Borrower nor any of its Subsidiaries is a partner or joint venturer in any
partnership or joint venture other than the partnerships and joint ventures
listed in Item 6.11 ("Partnerships and Joint Ventures") of the Disclosure
--------- -------------------------------
Schedule. Item 6.11 of the Disclosure Schedule sets forth, for each such
---------
partnership or joint venture, a complete and accurate statement of (a) the
Borrower's and each Subsidiary's percentage ownership of each such partnership
or joint venture, (b) the state or other jurisdiction of formation or
incorporation, as appropriate, of each such partnership or joint venture and (c)
each state in which each such partnership or joint venture is qualified to do
business.
SECTION 6.12. Senior Notes. The Senior Notes have been issued and sold to
------------
the initial Purchasers thereof on or prior to the Closing Date in accordance
with and pursuant to the terms of the Offering Memorandum and in compliance with
all laws, including Rule 144A of the Securities Act of 1933, as amended, and all
other applicable federal and state securities laws.
SECTION 6.13. Intellectual Property. The Borrower and each of its
---------------------
Subsidiaries possesses adequate licenses, patents, patent applications,
copyrights, trademarks, trademark applications, trade styles, and tradenames to
continue to conduct its respective business as heretofore conducted by it.
SECTION 6.14. Solvency. On a pro forma basis, immediately after giving
-------- --- -----
effect to the Transaction and all Indebtedness incurred, and to be incurred, and
Liens created and to be created by each Obligor in connection with this
Agreement on the Closing Date, (a) the sum of the assets, at the fair valuation
of the Borrower and its Subsidiaries taken as a whole will exceed their debts,
(b) the Borrower and its Subsidiaries taken as a whole will not have incurred
nor intended to, or believe that they will, incur debts beyond their ability to
pay such debts as such debts mature and (c) the Borrower and its Subsidiaries
taken as a whole do not have unreasonably small capital with which to conduct
their respective businesses. For purposes of this Section 6.14, "debt" means
------------
any reasonably expected liability on a claim, and "claim" means
-41-
(i) right to payment whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured; or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
SECTION 6.15. Contracts; Labor Matters. Except as disclosed in Item 6.15
------------------------ ---------
("Contracts and Labor Matters") of the Disclosure Schedule (including a list of
---------------------------
all collective bargaining or similar agreements): (a) neither the Borrower nor
any of its Subsidiaries is subject to any charge, corporate restriction,
judgment, decree or order, which is reasonably likely to have a Material Adverse
Effect; (b) neither the Borrower nor any of its Subsidiaries has, within the two
(2) year period preceding the date of this Agreement, taken any action which
would have constituted or resulted in a "plant closing" or "mass layoff" within
the meaning of the Federal Worker Adjustment and Retraining Notification Act of
1988 or any similar applicable federal, state or local law; (c) on the date of
this Agreement (i) neither the Borrower nor any of its Subsidiaries is a party
to any labor dispute and (ii) there are no strikes or walkouts relating to any
labor contracts to which the Borrower or any of its Subsidiaries is a party or
is otherwise subject; (d) there is no unfair labor practice complaint pending
against the Borrower or any of its Subsidiaries or, to the knowledge of the
Borrower, threatened against any of them, before the National Labor Relations
Board that is reasonably likely to have a Material Adverse Effect; (e) there is
no grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement pending on the date of this Agreement against
the Borrower or any of the Borrower's Subsidiaries or, to the knowledge of the
Borrower, threatened against any of them that is reasonably likely to have a
Material Adverse Effect; (f) no slowdown or stoppage is pending against the
Borrower or any of its Subsidiaries, or to the knowledge of the Borrower,
threatened against the Borrower or any of the Borrower's Subsidiaries, that is
reasonably likely to have a Material Adverse Effect; and (g) neither the
Borrower nor any of its Subsidiaries is engaged in any unfair labor practice
that is likely to have a Material Adverse Effect.
SECTION 6.16. Pension and Welfare Plans. Each Pension Plan complies, and
-------------------------
has been administered in compliance, in all material respects, with all
applicable statutes and governmental rules and regulations; no Reportable Event
has occurred and is continuing with respect to any Pension Plan; neither the
Borrower nor any ERISA Affiliate has withdrawn from any Multiemployer Plan in a
"complete withdrawal" or a "partial withdrawal" as defined in section 4203 or
4205 of ERISA, respectively, with respect to which the Borrower or any ERISA
Affiliate has any unsatisfied liability; no steps have been instituted to
terminate any Pension Plan; no contribution failure has occurred with respect to
any Pension Plan sufficient to give rise to a Lien under section 302(f) of
ERISA; no condition exists or event or transaction has occurred in connection
with any Pension Plan or Multiemployer Plan that is reasonably likely to have a
Material Adverse Effect; neither the Borrower nor any ERISA Affiliate is a
"contributing sponsor" as defined in section 4001(a)(13) of ERISA of a "single-
employer plan" as defined in section 4001(a)(15) of ERISA that has two or more
contributing sponsors at least two of whom are not under common control and no
Multiemployer Plan is insolvent (as defined in Section 4245 of ERISA) or in
reorganization (as defined in Section 4241 of ERISA). Except as listed in Item
----
6.16 ("Pension and Welfare Plans") of the Disclosure Schedule, neither the
---- -------------------------
Borrower nor any ERISA Affiliate, to the extent there is joint and several
liability with the Borrower to pay such benefits, has any liability to pay any
welfare benefits under any employee welfare benefit plan within the meaning of
section 3(l) of ERISA to former employees thereof or to current employees with
respect to claims incurred after the termination of their employment other than
-42-
as required by section 4980B of the Code or Part 6 of Subtitle B of Title 1 of
ERISA. With respect to Multiemployer Plans, the representations and warranties
of this Section 6.16 are made to the best knowledge of the Borrower.
------------
SECTION 6.17. Regulations G, U and X. Neither the Borrower nor any of its
----------------------
Subsidiaries is engaged in the business of purchasing or selling Margin Stock or
extending credit to others for the purpose of purchasing or carrying Margin
Stock, and no part of the proceeds of the Term Loans will be used to purchase or
carry any Margin Stock or for any other purpose which would violate any of the
margin regulations of the Federal Reserve Board.
SECTION 6.18. Compliance. The Borrower and each of its Subsidiaries is in
----------
compliance with all statutes and governmental rules and regulations applicable
to it, the noncompliance with which is reasonably likely to have a Material
Adverse Effect.
SECTION 6.19. Taxes. Each of the Borrower, the Parent and their respective
-----
Subsidiaries has filed all material tax returns which are required to have been
filed and has paid, or made adequate provisions for the payment of, all of its
Taxes which are due and payable, except such Taxes, if any, as are being
contested in good faith and by appropriate proceedings and as to which such
reserves or other appropriate provisions as may be required by GAAP have been
maintained. The federal income tax liability of the Borrower, the Parent and
their respective Subsidiaries has been audited by the Internal Revenue Service
and has been finally determined and satisfied (or the time for audit has
expired) for all tax years up to and including the tax year ended March 31,
1994, except as described in Item 6.19(a) ("Taxes") of the Disclosure Schedule.
------------
The Borrower is not aware of any proposed assessment against the Borrower, the
Parent or any of their respective Subsidiaries for additional Taxes (or any
basis for any such assessment), except as described in Item 6.19 (b) ("Taxes")
--------- ---
of the Disclosure Schedule.
SECTION 6.20. Investment Company Act Representation. Neither the Borrower
-------------------------------------
nor any of 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.
SECTION 6.21. Public Utility Holding Company Act Representation. Neither
-------------------------------------------------
the Borrower nor any of its Subsidiaries is a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.22. Environmental and Safety and Health Matters. The Borrower
-------------------------------------------
and its Subsidiaries and/or each property, operations and facility that the
Borrower or any such Subsidiary owns, operates or controls
(a) complies in all respects with (i) all applicable Environmental
Laws, except for those laws the failure with which to comply is not
reasonably likely to have a Material Adverse Effect and (ii) all applicable
Occupational Safety and Health Laws, except for those laws the failure with
which to comply is not reasonably likely to have a Material Adverse Effect;
(b) is not subject to any judicial or administrative proceeding
alleging the violation of any Environmental Law or Occupational Safety and
Health Law which is reasonably likely to have a Material Adverse Effect;
-43-
(c) has not received any written notice (i) that it may be in
violation of any Environmental Law or Occupational Safety and Health Law
which is reasonably likely to have a Material Adverse Effect, (ii)
threatening the commencement of any proceeding under any Environmental Law
or Occupational Safety and Health Law, which is reasonably likely to have a
Material Adverse Effect, or (iii) alleging that it is or may be responsible
for any response, cleanup, or corrective action, including but not limited
to any remedial investigation/feasibility studies, under any Environmental
Law or Occupational Safety and Health Law, which, is reasonably likely to
have a Material Adverse Effect;
(d) to the knowledge of the Borrower is not the subject of federal or
state investigation evaluating whether any investigation, remedial action
or other response is needed to respond to (i) a Release or threatened
Release into the environment of any Hazardous Material which is reasonably
likely to have a Material Adverse Effect or (ii) any allegedly unsafe or
unhealthful condition regulated under any Environmental Law or Occupational
Safety and Health Law which is reasonably likely to have a Material Adverse
Effect;
(e) has not filed any notice under or relating to any Environmental
Law or Occupational Safety and Health Law indicating or reporting (i) any
past or present Release into the environment of, or treatment, storage or
disposal of, any Hazardous Material or (ii) any potentially unsafe or
unhealthful condition, in either case, which is reasonably likely to have a
Material Adverse Effect, and to Borrower's knowledge, there exists no
reasonable basis for such notice irrespective of whether such notice was
actually filed; and
(f) has no contingent liability in connection with any actual Release
into the environment of, or otherwise with respect to, any Hazardous
Material whether on any premises owned or occupied by the Borrower or any
Subsidiary or on any other premises, which is reasonably likely to have a
Material Adverse Effect.
There are no Hazardous Materials on, in or under any property or facilities
owned, operated or controlled by the Borrower or any Subsidiary the presence of
which is reasonably likely to have a Material Adverse Effect, including but not
limited to such Hazardous Materials that may be contained in underground storage
tanks, but excepting such Hazardous Materials used in accordance with all
applicable laws and such Hazardous Materials used in the same manner as an
ordinary consumer (e.g., gasoline in tanks of motor vehicles, small amounts of
----
cosmetic cleaners, etc.).
SECTION 6.23. Related Agreements and Transaction Documents. As of the date
--------------------------------------------
hereof, all representations and warranties of the Parent, the Borrower and each
of their respective Subsidiaries contained in any Loan Document (including each
of the Security Documents) are true and correct as if made on the date hereof
(except for those representations and warranties which are expressly made as of
another specified date) and the Borrower hereby adopts and affirms all such
representations and warranties which the Borrower agrees shall be incorporated
by reference herein and made a part hereof. The funds deposited by the Borrower
with the trustee under the Outstanding Note Indenture and with the Escrow Agent
in connection with satisfaction of the conditions set forth in Sections 5.5(a)
---------------
and (b) shall be sufficient to repay all Indebtedness relating to the
---
Outstanding Notes and all Indebtedness under the Xxxxxx
-44-
Documents, respectively, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, in full.
SECTION 6.24. Ownership of Properties. (a) The real property described in
-----------------------
Schedule III constitutes all of the real estate owned in fee by the Borrower or
------------
any of its Restricted Subsidiaries (other than Foreign Subsidiaries) on the date
hereof having a net book value or fair market value of at least $500,000. All
other real property owned in fee by the Borrower or any of its Restricted
Subsidiaries (other than Foreign Subsidiaries) on the date hereof which is not
set forth on such Schedule III does not in the aggregate have a net book value
------------
or fair market value exceeding $2,500,000. The Borrower and its Restricted
Subsidiaries own good and marketable fee title to such real property and all of
their assets, real and personal, tangible and intangible, of any nature
whatsoever, to the extent reflected on the financial statements dated as of
December 31, 1997, free and clear in each case of all Liens or claims, except
for Liens permitted pursuant to Section 7.2.2.
-------------
(b) The leases of real property described in Schedule IV constitute
-----------
all of the leases of real property under which the Borrower or any of its
Restricted Subsidiaries (other than Foreign Subsidiaries) is a lessee on the
date hereof. With respect to such leased real property, the Borrower and its
Restricted Subsidiaries have valid and enforceable leasehold interests in the
properties listed on such Schedule IV on which equipment of the Borrower or any
-----------
of its Restricted Subsidiaries (other than Foreign Subsidiaries) is located,
free and clear of all Liens or claims, except for Liens permitted pursuant to
Section 7.2.2.
-------------
SECTION 6.25. Accuracy of Information. All factual information heretofore
-----------------------
or contemporaneously furnished by or on behalf of the Borrower in writing to the
Arranger, any Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Arranger,
any Agent or any Lender will be, true and accurate in every material respect on
the date as of which such information is dated or certified, and such
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not misleading.
Without limiting the effect of the foregoing sentence, all factual information
set forth in the Offering Memorandum is true and accurate in every material
respect as of the date of this Agreement, and such information is not incomplete
by omitting to state any material fact necessary to make such information not
misleading.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the Agents
---------------------
and each Lender that, until all Term Loan Commitments have terminated and all
Obligations have been paid and performed in full, the Borrower will perform the
obligations set forth in this Section 7.1.
-----------
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The Borrower
---------------------------------------------
will furnish, or will cause to be furnished, to each Lender and each Agent
copies of the following financial statements, reports, notices and information
(except to the extent any such Lender shall
-45-
have provided written notice to the Borrower and the Administrative Agent that
it is not to receive any of the following statements, reports, notices and
information):
(a) Annual Audited Financial Statements. As soon as available and in
-----------------------------------
any event within 90 days after the end of each Fiscal Year, a copy of the
audited Financial Statements as of the close of such Fiscal Year and for
such Fiscal Year, together with a comparison to the Financial Statements
for the prior Fiscal Year, in each case accompanied by (A) a report thereon
of the auditors with respect thereto, unqualified as to scope, which report
shall state that such consolidated financial statements fairly present the
consolidated financial position of the Borrower and its consolidated
Subsidiaries as at the date indicated and the results of their operations
and cash flow for the periods indicated in conformity with GAAP (except as
otherwise stated therein) and that the examination by such auditors has
been made in accordance with generally accepted auditing standards, (B)
such auditors' "Management Letter" to the Parent and/or the Borrower, (C) a
written statement signed by such auditors stating that in the course of the
regular audit of the business of the Parent and of the Borrower, which
audit was conducted by such auditors in accordance with generally accepted
auditing standards, such auditors have not obtained any knowledge of the
existence of any Default or Event of Default, or, if such auditors shall
have obtained from such examination any such knowledge, they shall disclose
in such written statement the existence of the Default or Event of Default
and the nature thereof, it being understood that such auditors shall not be
required hereunder to perform any special audit procedures and shall have
no liability, directly or indirectly, to anyone for failure to obtain
knowledge of any such Default or Event of Default. To the extent that the
Borrower's annual report on Form 10-K contains any of the foregoing items,
the Lenders will accept the Borrower's Form 10-K in lieu of such items.
(b) Quarterly Financial Statements. As soon as available and in any
------------------------------
event within 45 days after the end of each Fiscal Quarter of the Borrower
(except the last Fiscal Quarter of any Fiscal Year) (i) Financial
Statements as at the end of such period and for the Fiscal Year to date,
together with a comparison to the Financial Statements for the same periods
in the prior Fiscal Year, all in reasonable detail and duly certified
(subject to the addition of footnotes and audit and normal year-end
adjustments) by the chief executive officer or chief financial officer of
the Borrower as having been prepared substantially in accordance with GAAP.
To the extent that the Borrower's quarterly report on Form 10-Q contains
any of the foregoing items, the Lenders will accept the Borrower's Form 10-
Q in lieu of such items.
(c) Annual Budgets. Within 60 days after the end of each Fiscal Year
--------------
of the Borrower, a copy of an annual budget of the Borrower for the current
Fiscal Year, prepared on a consolidated basis and in conformity with GAAP
applied in a manner consistent with the prior Fiscal Year's budget, signed
by the Borrower's chief financial officer and consisting of at least a
balance sheet, an income statement and a cash flow statement, each
calculated on a quarter by quarter basis.
(d) Officer's Certificate. Together with the financial statements
---------------------
furnished by the Borrower under the preceding clauses (a) and (b), a
----------- ---
certificate of the chief executive or financial officer of the Borrower
stating that a review of the activities of the Borrower and its
Subsidiaries during the preceding fiscal year has been made under the
supervision
-46-
of the signing officer with a view to determining whether each has kept,
observed, performed and fulfilled its obligations under this Agreement and
the other Loan Documents (which certificate shall include a schedule in
form and scope reasonably satisfactory to the Administrative Agent
detailing the receipt and use of Net Cash Proceeds under Section 7.2.6),
-------------
and further stating, as to such officer signing such certificate, that to
the best of his or her knowledge the Borrower has kept, observed, performed
and fulfilled each and every covenant contained in this Agreement and the
other Loan Documents and is not in default in the performance or observance
of any of the terms, provisions and conditions hereof or thereof (or, if a
Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and
what action each is taking or proposes to take with respect thereto).
(e) SEC and Other Reports. Copies of each filing and report made by
---------------------
the Parent, the Borrower or any Restricted Subsidiary with or to any
securities exchange or the Securities and Exchange Commission, including
any registration statement and all amendments thereto filed with respect to
the Senior Notes, or as required pursuant to the Senior Note Indenture or
any other document relating thereto, promptly upon the filing or making
thereof.
(f) Notice of Default. Notice of the occurrence of (i) a Default or
-----------------
an Event of Default or (ii) a default by the Parent, the Borrower, any
other Obligor or any Restricted Subsidiary under or with respect to the
Senior Note Indenture, the Revolving Credit Agreement, the Parent Notes or
any other material note, indenture, loan agreement, mortgage, capitalized
lease or other similar agreement to which the Parent, the Borrower, any
other Obligor or any Restricted Subsidiary, as appropriate, is a party or
by which it is bound having obligations outstanding in excess of
$2,500,000.
(g) Notice of Judgment. Notice of the entry of any judgment or
------------------
decree against the Parent, the Borrower, any other Obligor or any
Restricted Subsidiary, if the amount of such judgment exceeds $2,500,000.
(h) Notice of Other Indebtedness. Copies of any material amendments,
----------------------------
waivers or consents, notices of breach or default, notices relating to the
exercise or nonexercise of any remedy available to any Person, notices of
indemnity or other claims, written materials relating to any dispute,
written materials relating to the exercise of any rights derived from or
arising in connection with any Indebtedness having a principal amount in
excess of $2,500,000, including any communications by the Parent, the
Borrower or any Restricted Subsidiary in connection with the Loan Documents
other than any such notice or other written materials already sent to the
Administrative Agent pursuant to any other Section of this Agreement.
(i) Security Documents. Any statement, report, notice and/or
------------------
information required to be delivered to the Administrative Agent pursuant
to any of the Security Documents.
(j) Other Reports. Any information required to be provided pursuant
-------------
to other provisions of this Agreement, and such other reports or
information from time to time reasonably requested by any Agent.
-47-
SECTION 7.1.2. Corporate Existence. Subject to Section 7.2.5, the Borrower
------------------- -------------
shall, subject to provisions herein, do or cause to be done all things necessary
to preserve and keep in full force and effect (i) its corporate existence and
the corporate existence of each of its Subsidiaries, in accordance with their
respective organizational documents (as the same may be amended from time to
time) and (ii) its (and its Subsidiaries) rights (charter and statutory),
licenses and franchises; provided, however, that the Borrower shall not be
-----------------
required to preserve any such right, license or franchise, or the corporate
existence of any Subsidiary, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Borrower and its Subsidiaries taken as a whole and that the loss thereof is
not adverse in any material respect to the Lenders.
SECTION 7.1.3. Maintenance of Properties. The Borrower shall, and shall
-------------------------
cause its Restricted Subsidiaries to, maintain their respective material
properties and assets in normal working order and condition as of the date
hereof (reasonable wear and tear excepted) and make all repairs, renewals,
replacements, additions, betterments and improvements thereto, as shall be
reasonably necessary for the proper conduct of the business of the Borrower and
its Restricted Subsidiaries taken as a whole; provided that nothing herein shall
--------
prevent the Borrower or any of its Restricted Subsidiaries from discontinuing
the use, maintenance or operation of any such properties if such discontinuance
is desirable in the conduct of the business of the Borrower and its Restricted
Subsidiaries taken as a whole.
SECTION 7.1.4. Insurance. The Borrower shall, and shall cause its
---------
Restricted Subsidiaries to, maintain liability, casualty and other insurance
(subject to the customary deductibles and retentions) with responsible insurance
companies in such amounts and against such risks as it customarily carried by
responsible companies engaged in similar businesses and owning similar assets in
the general areas in which the Borrower and its Restricted Subsidiaries operate
(which may include self-insurance in comparable form to that maintained by such
responsible companies).
SECTION 7.1.5. Taxes. The Borrower shall, and shall cause each of its
-----
Subsidiaries to, pay prior to delinquency all material taxes, assessments and
governmental levies except as are being contested in good faith and by
appropriate proceedings diligently conducted and in respect of which appropriate
reserves (in the good faith judgment of management of the Borrower) are being
maintained in accordance with GAAP.
SECTION 7.1.6. Books and Records. The Borrower will, and will cause each
-----------------
of its Subsidiaries to, keep books and records which accurately reflect in all
material respects all of its business affairs and transactions and permit the
Administrative Agent and the Syndication Agent or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
to visit all of its offices, to discuss its financial matters with its officers
and, after notice to the Borrower and provision of an opportunity for the
Borrower to participate in such discussion, its independent public accountant
(and the Borrower hereby authorizes such independent public accountant to
discuss the Borrower's financial matters with each such Agent or its
representatives whether or not any representative of the Borrower is present, so
long as the Borrower has been afforded a reasonable opportunity to be present)
and to examine, and photocopy extracts from, any of its books or other corporate
records. Unless a Default or Event of Default has occurred and is continuing,
the cost and expense of each such visit shall be borne by the applicable Agent,
except that the Administrative Agent may make one such visit each Fiscal Year at
the cost and expense of the Borrower.
-48-
SECTION 7.1.7. Use of Proceeds, etc. The Borrower shall apply the proceeds
--------------------
of the Term Loans in accordance with the terms of the third recital.
-------------
SECTION 7.1.8. Concerning the Collateral and the Loan Documents. (a) In
------------------------------------------------
order to secure the due and punctual payment of the Obligations, including
principal of, premium (if any) and interest (including interest on overdue
principal) on the Term Loans, when and as the same shall become due and payable,
whether on the scheduled payment date therefor, at maturity, by acceleration or
otherwise, and performance of all other obligations of the Borrower to the
Agents and the Lenders under this Agreement and each other Loan Document and of
all obligations of the Borrower's Restricted Subsidiaries under each other Loan
Document, the Borrower and the other Obligors have entered into each of the
applicable Security Documents to which each is a party.
(b) The Borrower shall, and shall cause each Restricted Subsidiary
subject to a Security Document to, perform at their sole cost and expense any
and all acts and execute any and all documents (including, without limitation,
the execution, amendment or supplementation of any financing statement and
continuation statement or other statement) for filing under the provisions of
the UCC and the rules and regulations thereunder, or any other statute, rule or
regulation of any applicable federal, state or local jurisdiction, including any
filings in local real estate land record offices, which are necessary or
advisable and shall do such other acts and execute such other documents as may
be required under any of the Security Documents, from time to time, in order to
grant and maintain valid and perfected Liens on the Collateral in favor of the
Administrative Agent in the priorities purported to be created by the Security
Documents, subject only to Liens permitted hereunder to be senior or pari passu
---- -----
to the Liens of the Administrative Agent, and to fully preserve and protect the
rights of the Agents and the Lenders under this Agreement and the other Loan
Documents. The Borrower shall, and shall cause each Restricted Subsidiary
subject to a Security Document to, pay and satisfy promptly all mortgage and
financing and continuation statement recording and/or filing fees, charges and
taxes relating to this Agreement, the Security Documents and the other Loan
Documents, any amendments thereto and any other instruments of further
assurance.
(c) The Borrower shall, on each anniversary of the Closing Date
beginning in 2003, furnish to the Administrative Agent an Opinion of Counsel,
dated as of such date, either (a) to the effect that, in the opinion of such
counsel, such action has been taken with respect to the recordings,
registerings, filings, re-recordings, re-registerings and refilings of all
financing statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of each of the Security Documents
and reciting with respect to such Liens the details of such action or
referencing prior Opinions of Counsel in which such details are given, and
stating that all financing statements and continuation statements have been
executed and filed that are necessary as of such date and during the succeeding
twelve months fully to preserve and protect the rights of the Administrative
Agent, the Lenders and the Administrative Agent hereunder and under each of the
Security Documents with respect to the Liens, or (b) to the effect that, in the
opinion of such counsel, no such action is necessary to maintain such Liens.
SECTION 7.1.9. Maintenance of Corporate Separateness. The Borrower will,
-------------------------------------
and will cause each of its Subsidiaries to, satisfy customary corporate
formalities, including the holding of regular board of directors' and
shareholders' meetings and the maintenance of corporate offices and records.
Neither the Borrower nor any of its Restricted Subsidiaries shall make any
payment to a creditor of any Unrestricted Subsidiary or the Parent in respect of
any liability of
-49-
such Unrestricted Subsidiary or the Parent, respectively, and no bank account of
an Unrestricted Subsidiary or the Parent shall be commingled with any bank
account of the Borrower or any of its Restricted Subsidiaries. Any financial
statements distributed to any creditors of an Unrestricted Subsidiary or the
Parent shall clearly establish the separateness of such Unrestricted Subsidiary
or the Parent, as the case may be, from the Borrower and its Restricted
Subsidiaries. Neither the Borrower nor any of its Subsidiaries shall take any
action, or conduct its affairs in a manner, which is likely to result in the
corporate existence of any Unrestricted Subsidiary or any Restricted Subsidiary
or the Parent being ignored by any court of competent jurisdiction, or in the
assets and liabilities of the Borrower or any Restricted Subsidiary being
substantively consolidated with those of any Unrestricted Subsidiary or the
Parent in a bankruptcy, reorganization or other insolvency proceeding.
SECTION 7.1.10. Working Capital Line. The Borrower shall maintain a
--------------------
revolving credit facility or similar arrangement or arrangements to the extent
necessary to fund the foreseeable capital expenditure and working capital
requirements of it and its Restricted Subsidiaries.
SECTION 7.1.11. Additional Mortgages. The Borrower shall, and shall cause
--------------------
each of its Restricted Subsidiaries to, deliver to the Administrative Agent the
following documents and instruments with regard to real property acquired after
the Closing Date (other than the Excluded Facility) having a net book value or a
fair market value of at least $2,000,000 or which, when added to the net book
value or fair market value of all other real property owned by the Borrower and
its Restricted Subsidiaries that is not subject to a first priority perfected
security interest in favor of the Administrative Agent and the Lenders
(excluding the Designated Facilities, the Excluded Facility and the real
property subject to the Plainfield Mortgage), exceeds $5,000,000, providing for
first priority mortgages (which shall constitute additional security for the
Obligations), subject to Permitted Liens:
(a) a Mortgage, in form and substance satisfactory to the
Administrative Agent duly executed by the Borrower or a Subsidiary of the
Borrower, as appropriate, in form suitable for recordation in the
appropriate recording office of the political subdivision where such
Mortgaged Property is situated;
(b) a mortgagee policy of title insurance (or endorsement thereto,
as appropriate) in favor of the Administrative Agent, issued by a
nationally-recognized title insurance company, in such amounts, with such
endorsements, affirmative coverages, and reinsurance agreements as the
Administrative Agent shall reasonably require, and otherwise in form and
substance reasonably satisfactory to the Administrative Agent, insuring the
Mortgage as a first lien on the property and interests covered thereby
subject only to such other matters as are acceptable to the Administrative
Agent;
(c) certified perimeter surveys of the real property covered by each
Mortgage by registered surveyors as of a date and in form and substance
acceptable to the Administrative Agent, bearing legal descriptions
conforming exactly to those contained in the title insurance policy
referred to in the preceding clause (b); indicating the length of exterior
boundary lines of the Mortgaged Property, locations of all buildings,
utility or other easements, showing the location of all easements of
record, encroachments, if any, and means of access to the real property
from a public way; and the surveyor's original
-50-
certification to the Administrative Agent and the title insurance company
issuing the policies described in the preceding clause;
(d) UCC financing statements necessary or desirable to perfect the
valid, first-priority lien granted by each Mortgage, together with such
searches of UCC, judgment and tax lien records as the Administrative Agent
shall reasonably require;
(e) policies or certificates of insurance with respect to the
insurance required to be maintained in respect of the property covered by
each Mortgage pursuant to the terms of this Agreement and the other Loan
Documents, naming the Administrative Agent as loss payee or additional
named insured, as appropriate; and
(f) such other agreements, instruments, approvals, consents,
opinions, or documents as the Administrative Agent, may reasonably request.
SECTION 7.1.12. Future Subsidiaries. Without limiting the effect of any
-------------------
provision contained herein (including Section 7.2.9), upon any Person becoming a
-------------
Restricted Subsidiary of the Borrower (other than a Foreign Subsidiary),
(a) such Person, if not theretofore a party to the Security
Agreement, shall execute and deliver to the Administrative Agent a
supplement to the Security Agreement for the purpose of becoming a grantor
thereunder, which supplement shall be substantially in the form attached to
the Security Agreement;
(b) the Administrative Agent shall have received from such Person
certified copies of Uniform Commercial Code Requests for Information or
Copies (Form UCC-11), or a similar search report certified by a party
acceptable to the Administrative Agent, dated a date reasonably near (but
prior to) the date of any such Person becoming a Restricted Subsidiary of
the Borrower, listing all effective financing statements, tax liens and
judgment liens which name such Person as the debtor and which are filed in
the jurisdictions in which filings are to be made pursuant to this
Agreement and the other Loan Documents, and in such other jurisdictions as
the Administrative Agent may reasonably request, together with copies of
such financing statements (none of which (other than financing statements
(i) being terminated pursuant to termination statements that are to be
delivered on or prior to the date such Person becomes such Restricted
Subsidiary or (ii) in respect of Liens permitted under Section 7.2.2) shall
-------------
cover any of the collateral described in the Security Agreement); and
(c) the Administrative Agent shall have received from such Person
executed copies of UCC financing statements naming such Person as the
debtor and the Administrative Agent as the secured party, suitable for
filing under the UCC of all jurisdictions as may be necessary or, in the
reasonable opinion of the Administrative Agent, desirable to perfect the
first priority security interest of the Administrative Agent pursuant to
the Security Agreement entered into by such Person,
together, in each case, with such opinions of legal counsel as the
Administrative Agent may reasonably request, which legal opinions shall be in
form and substance reasonably satisfactory to the Administrative Agent.
-51-
SECTION 7.1.13. Compliance with Statutes, etc. (a) The Borrower will, and
------------------------------
will cause each of the its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable Environmental
Laws) other than those the non-compliance with which (individually or in the
aggregate) would not have a Material Adverse Effect. Neither the Borrower nor
any of its Subsidiaries will generate, use, treat, store, release or dispose of,
or permit the generation, use, treatment, storage, release or disposal of
Hazardous Materials on any of its properties, or transport or permit the
transportation of Hazardous Materials to or from any such properties, except for
quantities used or stored at such properties in material compliance with all
applicable Environmental Laws and required in connection with the normal
operation, use and maintenance of such properties or the operation of the
business of the Borrower and its Subsidiaries. If required to do so under any
applicable Environmental Law, the Borrower agrees to undertake, and agrees to
cause each of its Subsidiaries to undertake, any cleanup, removal, remedial or
other action necessary to remove and clean up any Hazardous Materials from any
such property in accordance with the requirements of all such applicable
Environmental Laws and in accordance with orders and directives of all
governmental authorities; provided that neither the Borrower nor any of its
--------
Subsidiaries shall be required to take any such action where same is being
contested by appropriate legal proceedings in good faith by the Borrower or such
Subsidiary.
(b) At the request of the Administrative Agent, the Syndication Agent
or the Required Lenders at any time and from time to time, but in any event no
more frequently than once a year, the Borrower will provide, at the Borrower's
sole cost and expense, an environmental site assessment report concerning any
Mortgaged Property of the Borrower or any Subsidiary, prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent,
indicating the presence or release of Hazardous Materials and the potential cost
of any removal or remedial action in connection with any Hazardous Materials on
such Mortgaged Property; provided, however, no such request may be made unless
-------- -------
the Administrative Agent, the Syndication Agent or the Required Lenders
reasonably believe that (i) the Borrower or any of its Subsidiaries is in
material non-compliance with any Environmental Law with respect to such
Mortgaged Property and such non-compliance is reasonably likely to result in a
liability of the Borrower in excess of $5,000,000 (after expected insurance and
indemnity recovery) or (ii) an Event of Default is in existence. If the
Borrower fails to provide the same after 60 days' written notice, the
Administrative Agent may order the same, and the Borrower shall grant and hereby
grants to the Administrative Agent, the Syndication Agent and the Lenders and
their agents access to such Mortgaged Property at all reasonable times and
without unreasonably interfering with the Borrower's operations and specifically
grants such Agents and the Lenders an irrevocable nonexclusive license, subject
to the rights of tenants, to undertake such an assessment all at the Borrower's
sole expense.
SECTION 7.1.14. Lien Waivers. In the event that any of the lien waivers
------------
and releases referred to in Section 5.10 are not obtained on or prior to the
------------
Closing Date or in the event that additional real property is leased by the
Borrower or any of its Restricted Subsidiaries after the Closing Date, the
Borrower shall use its commercially reasonable efforts to obtain such lien
waivers and releases and lien waivers and releases with respect to such
additional leases, in each case executed and acknowledged by the lessors under
the applicable leases and reasonably satisfactory in form and substance to the
Syndication Agent and the Administrative Agent.
-52-
SECTION 7.2. Negative Covenants. The Borrower agrees with the Agents and
------------------
each Lender that, until the Term Loan Commitments have terminated, and all
Obligations have been paid and performed in full, the Borrower will perform the
obligations set forth in this Section 7.2.
-----------
SECTION 7.2.1. Indebtedness. Borrower will not create, incur, assume,
------------
guarantee or otherwise become liable for, and will not permit any of its
Restricted Subsidiaries to create, incur, assume, guarantee or otherwise become
liable for, any Indebtedness (collectively, "incur"); provided, however, the
----- -------- -------
Borrower may incur Indebtedness (other than guarantees of Indebtedness, the
incurrence of which would not be permitted under this Agreement) if, at the time
such Indebtedness is so incurred and after giving effect thereto and the
application of the proceeds therefrom, the Fixed Charge Coverage Ratio of the
Borrower for the four most recent fiscal quarters for which financial
information is available shall not be less than 2.0 to 1.0.
For purposes of calculating the Fixed Charge Coverage Ratio in this
Section, if the Indebtedness to be created, incurred or assumed is Indebtedness
of an entity which is to be acquired by, and made a Restricted Subsidiary of,
the Borrower or of a Restricted Subsidiary (whether or not such Indebtedness was
incurred by such entity in connection with such acquisition), or is Indebtedness
incurred by the Borrower or any Restricted Subsidiary in connection with such
acquisition, then the Fixed Charge Coverage Ratio of the Borrower shall be
determined on a pro forma basis giving effect to both the Fixed Charges related
--- -----
to such additional Indebtedness as well as the Consolidated Cash Flow of the
entity to be acquired. Notwithstanding the foregoing limitations, the incurrence
of the following, without duplication, will not be prohibited:
(a) Indebtedness of the Borrower and its Restricted Subsidiaries
incurred under or in respect of the Revolving Credit Agreement (or any
substitute or replacement facility), provided that the Revolving Credit
Agreement shall be permanently reduced by the amount of any prepayment from
the proceeds of an Asset Disposition pursuant to Section 7.2.6(b)(C) and
-------------------
provided that the aggregate principal amount of such Indebtedness
outstanding at any time pursuant to this clause (a) may not exceed (i) the
----------
greater of (A) $220,000,000 or (B) the sum of 85% of Eligible Accounts
Receivable and 60% of the book value of the Inventory (determined on a
first-in first-out basis) of the Borrower and its Restricted Subsidiaries,
plus (ii) any additional amounts (without duplication) permitted to be
----
incurred by the Borrower and its Restricted Subsidiaries pursuant to clause
------
(p) below (clause (a)(i) and, collectively with clause (a)(ii), the "Total
--- ------------- -------------- -----
Amount"), minus, (iii) the amount then outstanding under any Receivables
------ -----
Financing (as set forth in the books and records of the Borrower and
confirmed by the agent, trustee or other representative of the institution
or group providing such Receivables Financing);
(b) Indebtedness in respect of the Term Notes and all other
Obligations;
(c) Indebtedness evidenced by the Senior Notes;
(d) Indebtedness of the Borrower to any Wholly Owned Restricted
Subsidiary or of any Wholly Owned Restricted Subsidiary to the Borrower or
to any other Wholly Owned Restricted Subsidiary;
-53-
(e) Indebtedness of the Borrower and its Restricted Subsidiaries
outstanding on the date of incurrence of the Term Loans and described in
Item 7.2.1(e) ("Existing Indebtedness") of the Disclosure Schedule;
------------- ---------------------
(f) Indebtedness of the Borrower in connection with Life Insurance
Policy loans;
(g) Indebtedness of the Borrower or any Restricted Subsidiary
evidenced by standby letters of credit, performance bonds, surety bonds,
guarantees and similar obligations incurred in the ordinary course of
business for purposes of insuring the performance of obligations of the
Borrower or such Restricted Subsidiary and in an aggregate principal amount
not to exceed $7,500,000 at any time;
(h) Indebtedness of the Borrower or a Restricted Subsidiary in
respect of Capitalized Lease Obligations; provided, however, that the
-------- -------
aggregate Indebtedness incurred under this clause (h) will not at any time
----------
exceed $12,500,000;
(i) Indebtedness of the Borrower or a Restricted Subsidiary
(including industrial revenue bond Indebtedness) that is secured by a Lien
on property, which Indebtedness constitutes all or part of the purchase
price of the property subject thereto or is incurred prior to, at the time
of or within 180 days after the acquisition of such property for the
purpose of financing all or any part of the purchase price thereof,
provided that such secured Indebtedness does not exceed the purchase price
--------
of such property;
(j) Indebtedness of the Borrower issued in exchange for, or the net
proceeds of which will be used to exchange, refinance or refund outstanding
Indebtedness incurred pursuant to the proviso in the first sentence of this
Section 7.2.1 or pursuant to clauses (b), (c), (e), (o) and (p) so long as
------------- ----------- --- --- --- ---
(i) the principal amount of the Indebtedness issued does not exceed the
principal amount (plus any premium and consent payments required) of the
Indebtedness so exchanged, refinanced or refunded, (ii) where the
Indebtedness to be exchanged, refinanced or refunded is not Senior
Indebtedness, the Indebtedness issued does not have a final maturity or
mandatory redemption payments prior to the earlier of the final maturity of
the Indebtedness being so exchanged, refinanced or refunded or the stated
maturity of the Term Loans, and (iii) where the Indebtedness being so
exchanged, refinanced or refunded is subordinated to the Term Loans, the
Indebtedness is subordinated to the Term Loans in right of payment to the
same extent as the indebtedness so exchanged, refinanced or refunded;
(k) Attributable Debt in respect of Sale and Leaseback Transactions
engaged in pursuant to and in accordance with clause (b) under Section
---------- -------
7.2.11;
------
(l) Indebtedness incurred in connection with Investments in
Unrestricted Subsidiaries; provided that such Investments are permitted
under Section 7.2.9;
-------------
(m) Indebtedness of the Borrower incurred pursuant to Interest Rate
Contracts related to the Revolving Credit Agreement or this Agreement to
the extent the notional principal amount of any such Interest Rate Contract
does not exceed, respectively, the amount of Indebtedness permitted
pursuant to clause (a) above or the amount of Indebtedness hereunder;
----------
-54-
(n) Indebtedness of a Receivables Subsidiary secured by a Lien on all
or part of the assets disposed of in, or otherwise incurred in connection
with, a Financing Disposition; provided, that the aggregate principal
amount of indebtedness outstanding under this clause (n) may not exceed the
----------
Total Amount;
(o) Indebtedness incurred by the Borrower's Canadian subsidiary under
or in respect of a secured bank credit facility, provided that the
--------
aggregate principal amount of such Indebtedness outstanding pursuant to
this clause (o) shall not exceed $10,000,000 and
----------
(p) Indebtedness of the Borrower other than Indebtedness permitted
under clauses (a) through (o), but without duplication as to additional
----------- ---
amounts permitted to be outstanding under clause (a) (ii) above, provided
---------------
that the aggregate amount of such Indebtedness may not exceed $25,000,000
at any time outstanding;
To the extent that Net Proceeds from an Asset Disposition are used to repay,
repurchase or redeem Indebtedness incurred under or in respect of the Revolving
Credit Agreement pursuant to Section 7.2.6. the amount of Indebtedness
--------------
permitted by clauses (a) and (n) of this Section shall be permanently reduced by
----------- ---
the amount of such repayment, repurchase or redemption; provided, however, no
-------- -------
such permanent reduction in borrowing capacity shall be required if such
repayment, repurchase or redemption is made with Net Proceeds refused by a
Lender under clause (c) of Section 3.1.2.
---------------------------
SECTION 7.2.2. Liens. The Borrower will not, and will not permit any of
-----
its Restricted Subsidiaries, directly or indirectly, to create, incur, assume or
permit to exist any Lien except for Permitted Liens upon or with respect to any
of its property, whether owned at the date of this Agreement or thereafter
acquired, or on any income or profits therefrom, or assign or otherwise convey
any right to receive income, unless the Term Loans are secured equally and
ratably simultaneously with or prior to the creation, incurrence or assumption
of such Lien.
SECTION 7.2.3. Restricted Payments, etc. The Borrower will not, and will
------------------------
not permit any of its Restricted Subsidiaries to, directly or indirectly, make
any Restricted Payment, if, after giving effect thereto (a) a Default or an
Event of Default shall have occurred and be continuing or (b) the aggregate
amount of all Restricted Payments made and the amount of Investments then
outstanding pursuant to clause (g)(ii) under Section 7.2.9 by the Borrower and
-------------- -------------
its Restricted Subsidiaries (the amount expended, distributed or invested for
such purposes, if other than in cash, to be determined in good faith by the
Board of Directors of the Borrower and evidenced by a Board Resolution) from and
after the date of this Agreement shall exceed the sum of (i) 50% of Consolidated
Net Income of the Borrower accrued for the period (taken as one accounting
period) commencing with the date of this Agreement to and including the date of
such calculation (or, in the event Consolidated Net Income for such period is a
deficit, then minus 100% of such deficit), (ii) 50% of the (A) increase in
depreciation expense resulting from the application of APB 16 purchase
accounting to the acquisition of the Borrower in 1990, and (B) amortization of
goodwill and deferred financing costs existing as of the date of this Agreement,
in each case, for the period specified in clause (i) above, (iii) the aggregate
----------
net cash proceeds, including marketable securities, received by the Borrower or
Parent from the issuance or sale (other than to a Subsidiary of the Borrower or
Parent, as the case may be) of its Capital Stock (other than Redeemable Stock)
or any convertible debt securities that have been converted into shares of
Capital Stock (other than Redeemable Stock), from and after the date of this
-55-
Agreement, provided that, in the case of any issuance or sale by Parent, such
--------
net cash proceeds are contributed as a capital contribution in exchange for
common stock of the Borrower; (iv) the aggregate amount received by the Borrower
or its Restricted Subsidiaries from an Unrestricted Subsidiary (excluding
amounts received by the Borrower or any Restricted Subsidiary from an
Unrestricted Subsidiary which represents a repayment of the principal portion of
any loan or advance or any return of contributed capital), (v) if there is a
redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries of the
Borrower, such aggregate amount of the net reduction in Investments in clause
------
(g) of Section 7.2.9 not exceeding the amount of Investments previously made by
--- -------------
the Borrower or any Restricted Subsidiary of the Borrower in such Unrestricted
Subsidiary pursuant to (and in accordance with) such clause (g), to the extent
----------
such amount was included in the calculation of the amount of Restricted
Payments; and (vi) $10,000,000.
The foregoing clause (b) will not prevent (i) the payment of any dividend
----------
on Capital Stock within 60 days after the date of its declaration if such
dividend could have been made on the date of its declaration in compliance with
the foregoing provisions, (ii) the purchase, redemption or retirement or other
acquisition of Capital Stock in exchange for or out of the proceeds of a
substantially concurrent issue and sale (other than to a Subsidiary) of other
shares of Capital Stock (other than Redeemable Stock) of the Borrower, (iii)
cash dividends paid to Parent which dividends are used by Parent to repurchase
Capital Stock of Parent from officers and employees (or their estates) of
Parent, the Borrower or its Subsidiaries upon death, disability or termination
of employment of such officers and employees to the extent required by the terms
of the Stockholders Agreement, as amended, dated as of September 14, 1990 (the
"Stockholders Agreement"), and any extension thereof, among Parent and certain
----------------------
stockholders party thereto on substantially the same terms and conditions as in
effect on the date of this Agreement; provided, however, that the aggregate
-------- -------
amount of all such repurchases in any fiscal year of the Borrower does not
exceed $5,000,000; (iv) cash dividends paid to Parent which dividends are used
by Parent to repurchase shares of its Capital Stock from participants who are
distributed such shares from the ESOP to the extent required by the terms
thereof as in effect on the date of this Agreement, (v) cash dividends paid to
Parent out of the net proceeds to the Borrower of any benefits paid pursuant to
the terms of the Life Insurance Policies; provided, however, that such net
-------- -------
proceeds shall be first used to repurchase Capital Stock of Parent from the
estate of such former officer or employee if such repurchase is required by the
ESOP, the Stockholder Agreement or any other agreement and provided, further,
-------- -------
that the amount of such dividend shall be excluded in the calculation of
Restricted Payments for purposes of clause (b) of the immediately preceding
----------
paragraph, (vi) the purchase, redemption, retirement or other acquisition of any
Indebtedness with the Net Proceeds from Asset Dispositions as permitted under
Section 7.2.6, (vii) the exchanging, refinancing or refunding of Subordinated
-------------
Indebtedness through the issuance of Subordinated Indebtedness so long as (A)
the principal amount of the new Subordinated Indebtedness to be issued does not
exceed the principal amount (plus any premium and consent payments required) of
the Subordinated Indebtedness so exchanged, refinanced or refunded and (B) the
Subordinated Indebtedness to be issued does not have a final maturity or
mandatory redemption payments prior to the earlier of the final maturity of the
Subordinated Indebtedness being so exchanged, refinanced or refunded or the
stated maturity of the Term Notes, (viii) any securities or other Investments
received in connection with any sale or other disposition of property or assets,
including any Asset Disposition that complies with Section 7.2.6; and (ix)
-------------
Investments in connection with a Financing Disposition by or to any Receivables
Entity, including Investments of funds held in accounts permitted or required by
the arrangements governing such Financing Disposition or any related
Indebtedness.
-56-
SECTION 7.2.4. Payment Restrictions Affecting Restricted Subsidiaries. The
------------------------------------------------------
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
create, assume or suffer to exist or become effective any consensual encumbrance
or restriction on the ability of any Restricted Subsidiary to (a) pay dividends
or make any other distributions in respect of such Restricted Subsidiary's
Capital Stock or otherwise transfer cash or assets or make loans or advances to
the Borrower or any other Restricted Subsidiary, or pay Indebtedness owing to
the Borrower or any other Restricted Subsidiary, (b) make any loans or advances
to the Borrower or any Restricted Subsidiary, or (c) transfer any of its
property or cash to the Borrower or any Restricted Subsidiary, other than as
permitted by this Agreement, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) customary non-assignment
provisions of any agreement or obligation, including a lease governing a
leasehold interest, of the Borrower or a Subsidiary of the Borrower, (iii) this
Agreement and the Security Documents and any amendments, modifications or
refinancing thereof, provided, however, that any such amendments, modifications
-------- -------
or refinancings shall not impose any greater encumbrance or restriction than
those contemplated by this Agreement as in existence on the date of original
issuance of the Term Notes, (iv) the Revolving Credit Agreement, provided,
--------
however, that any amendments to the Revolving Credit Agreement shall not impose
-------
any greater encumbrance or restriction than those contemplated by the Revolving
Credit Agreement as in existence on the date of original issuance of the Term
Notes, (v) the Senior Note Indenture and any amendments, modifications or
refinancing hereof, provided that any such amendments, modifications or
refinancings shall not impose any greater encumbrance or restriction than those
contemplated by the Senior Indenture as in existence on the date of original
issuance of the Senior Notes, (vi) any Indebtedness incurred pursuant to clause
------
(o) of Section 7.2.1 and any amendments, modifications or refinancing thereof,
--- -------------
(vii) any instrument governing Indebtedness of a Person acquired by the Borrower
or any Subsidiary of the Borrower at the time of such acquisition, which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired, (viii) any restriction on the sale or other disposition of
assets or property securing Indebtedness as a result of a Permitted Lien on such
assets or property (including, without limitation, customary restrictions
relating to assets securing any indebtedness hereunder, under the Revolving
Credit Agreement or the Indebtedness incurred pursuant to clause (i) or (o) of
---------- ---
Section 7.2.1), (ix) contracts for the sale of assets, including customary
-------------
restrictions with respect to agreements for sale of substantially all of the
Capital Stock or assets of such Subsidiary provided, that such restrictions
--------
apply only to the assets being sold and for only so long as such contract
remains in effect, or (x) an agreement relating to Indebtedness of or a
Financing Disposition to or by any Receivables Entity. Nothing contained in
this Section 7.2.4 shall prevent the Borrower or any Restricted Subsidiary from
-------------
(A) creating, incurring, assuming or suffering to exist any Liens otherwise
permitted under Section 7.2.2 or (B) restricting the sale or other disposition
-------------
of property or assets of the Borrower or any of its Restricted Subsidiaries that
secure Indebtedness of the Borrower or any of its Restricted Subsidiaries.
SECTION 7.2.5. Consolidation, Merger, etc. (a) The Borrower will not in a
--------------------------
single transaction or through a series of related transactions consolidate with
or merge with or into another Person or directly or indirectly sell, transfer,
lease or convey all or substantially all of its properties and assets to another
Person unless:
(i) (A) the Borrower is the continuing corporation in the case of a
merger or (B) the resulting, surviving or transferee entity (the "Surviving
---------
Entity") is a corporation or partnership organized under the laws of the
------
United States, any state thereof or the
-00-
Xxxxxxxx xx Xxxxxxxx and expressly assumes by all the obligations of the
Borrower under this Agreement, the Term Notes and each other Loan Document
to which the Borrower is a party pursuant to amendments in form and
substance reasonably satisfactory to the Administrative Agent and the
Required Lenders;
(ii) no Default or Event of Default shall have occurred and be
continuing immediately after giving effect to such transaction;
(iii) the Consolidated Net Worth of the Borrower or the Surviving
Entity, as the case may be, on a pro forma basis after giving effect to
such consolidation, merger or sale, transfer, lease or conveyance of assets
(but prior to any purchase accounting adjustments resulting from the
transaction) is not less than the Consolidated Net Worth of the Borrower,
immediately prior to the date of the transaction; and
(iv) immediately after giving effect to such transaction, the
Borrower or the Surviving Entity, as the case may be, on a pro forma basis
would be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under Section 7.2.1 as if, in the case of the
-------------
Surviving Entity, such Person were the Borrower.
Notwithstanding the foregoing, clause (iv) shall not prohibit a transaction, the
-----------
principal purpose of which is (as determined in good faith by the Board of
Directors of the Borrower and evidenced by a resolution thereof) to change the
state of incorporation of the Borrower, and such transaction does not have as
one of its purposes the evasion of the restrictions of this section.
SECTION 7.2.6. Asset Dispositions, etc. (a) The Borrower will not, and
-----------------------
will not permit any Restricted Subsidiary to, sell, transfer, lease, convey or
otherwise dispose of any assets (other than (i) an asset disposition or the sale
of Inventory in the ordinary course of business consistent with past practice,
(ii) any Financing Disposition, (iii) any disposition of the Designated
Facilities, or (iv) a transfer, conveyance, sale, lease or other disposition of
all or substantially all of the Borrower's asset permitted under Section 7.2.5)
-------------
unless (A) the Borrower (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such disposition (an "Asset Disposition")
-----------------
at least equal to the fair market value of the assets disposed of (which shall
be determined in good faith by the Board of Directors and evidenced by a Board
Resolution), and the Net Proceeds received by the Borrower for such disposition
consists of at least 75% cash, provided, however, that for the purposes of this
-------- -------
Section 7.2.6, "cash" shall include (1) the amount of any liabilities (other
-------------
than liabilities that are by their terms subordinated to the Term Notes) of the
Borrower or such Restricted Subsidiary (as shown on the Borrower's or such
Restricted Subsidiary's most recent balance sheet or in the notes thereto) that
are assumed by the transferee of any such assets or other property in such Asset
Disposition or are no longer the liability of the Borrower or any Restricted
Subsidiary (and excluding any liabilities that are incurred in connection with
or in anticipation of such Asset Disposition), but only to the extent that such
assumption is effected on a basis under which there is no further recourse to
the Borrower or any of its Restricted Subsidiaries with respect to such
liabilities and (2) any securities, notes or other obligations received by the
Borrower or any such Restricted Subsidiary in connection with such Asset
Disposition that are converted by the Borrower or such Restricted Subsidiary
into cash within 180 days of receipt, (B) to the extent such Asset Disposition
involves Collateral, (1) the consent of the Required Lenders shall be obtained
prior to the consummation of any sale of Collateral subject to such Asset
Disposition (or any related Asset Disposition) having a fair market value in
excess of $5,000,000 and (2) the Borrower shall cause the
-58-
aggregate cash proceeds received by the Borrower or such Restricted Subsidiary
in respect of Collateral subject to an Asset Disposition (or any related Asset
Disposition), net of the items set forth in clauses (i) through (iii) of the
----------- -----
definition of Net Proceeds (the "Collateral Proceeds"), to be deposited with the
-------------------
Administrative Agent in the Collateral Account as and when received by the
Borrower or any of its Restricted Subsidiaries in accordance with the terms of
the Security Agreement in the event such Collateral Proceeds exceed $5,000,000,
provided, that the consent of the Required Lenders shall not be required with
--------
respect to the sale of the real property and plant of the Borrower located at
00-000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxx and the Collateral Proceeds of such
sale shall not be required to be deposited in the Collateral Account, and,
provided further, that no Indebtedness other than the Obligations may be
-------- -------
permanently repaid or prepaid out of, or on account of, any Collateral Proceeds
(except to the extent any such prepayment is refused by a Lender under clause
------
(c) of Section 3.1.2); and (C) the Net Proceeds (other than the Net Proceeds of
--- -------------
an Asset Disposition of the Excluded Facility) received by the Borrower or such
Restricted Subsidiary from such Asset Disposition are applied in accordance with
the following paragraphs.
(b) Within 540 days from the date of such disposition, the Net Proceeds
thereof shall be applied (i) in the case of Collateral Proceeds (whether or not
deposited into the Collateral Account), (A) to acquire property, buildings,
fixtures, equipment or other items related to the Borrower's business and in
which the Administrative Agent on behalf of the Lenders will have (subject to
Permitted Liens) a first-priority perfected security interest and (B) otherwise
in accordance with the provisions of the Security Agreement and (ii) in the case
of Net Proceeds other than Collateral Proceeds, (A) to capital expenditures of
the Borrower or the Restricted Subsidiaries, (B) to acquire additional
properties or assets related to the Borrower's business or to make Investments
in entities, which, after giving effect to such Investment, will become
Restricted Subsidiaries or (C) applied to repay, repurchase or redeem
Indebtedness of a Restricted Subsidiary or Indebtedness of the Borrower ranking
on a parity with or senior to the Term Notes; provided, however, that if such
-------- -------
repaid, repurchased or redeemed Indebtedness is Indebtedness incurred under or
in respect of the Revolving Credit Agreement (or any substitute or replacement
facility or any other revolving facility), the amount of borrowing capacity
under such facility shall be permanently reduced by the amount of such
repayment, repurchase or redemption.
(c) The amount of such Net Proceeds not used to or invested as set forth
in paragraph (b) shall be applied by the Borrower, subject to Section 3.1.2 and
------------- -------------
the provisions, if applicable, of the Security Agreement, to the prepayment of
the Term Loans on or prior to the date such Net Proceeds are not so used or
invested at a price equal to 100% of the principal amount thereof, plus accrued
interest thereon to the date of prepayment.
(d) Notwithstanding the foregoing, a prepayment of the Term Loans pursuant
to paragraph (c) may be deferred with respect to an Asset Disposition or series
-------------
of related Asset Dispositions if the Net Proceeds, after giving effect to the
application, if any, as set forth in clauses (i) and (ii) of paragraph (b)
----------- ---- -------------
above, is less than $5,000,000. Such proceeds offer may be deferred until such
time as such Net Proceeds, plus the aggregate amount of Net Proceeds resulting
from any prior or subsequent Asset Disposition(s) since the date of this
Agreement, not otherwise applied as provided in clauses (i) and (ii) of
----------- ----
paragraph (b) above, is at least equal to $7,500,000, at which time the Borrower
-------------
shall apply all such Net Proceeds to a prepayment of the Term Loans in
accordance with this Section.
-59-
(e) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, create or permit to exist or become effective any consensual
restriction other than restrictions not more restrictive taken as a whole (as
determined in good faith by the chief financial officer of the Borrower) than
those in effect under Existing Indebtedness and the Revolving Credit Agreement
that would materially impair the ability of the Borrower to comply with the
provisions of this Section.
(f) If at any time any non-cash consideration (other than any such
consideration consisting of inventory, accounts receivable and certain related
assets securing or permitted to secure the Revolving Credit Agreement) is
received by the Borrower or any Restricted Subsidiary, as the case may be, in
connection with any Asset Disposition of assets which includes Collateral, such
non-cash consideration shall be made subject to the Lien of the Security
Documents in the manner contemplated in the Security Agreement to the extent of
the purchase price allocated to the Collateral. If and when any such non-cash
consideration received from any Asset Disposition (whether or not relating to
Collateral) is converted into or sold or otherwise disposed of for cash, then
such conversion or disposition shall be deemed to constitute an Asset
Disposition hereunder and the Net Proceeds thereof shall be applied in
accordance with this Section 7.2.6 and the Security Documents.
-------------
(g) All Insurance Proceeds and all Net Awards required to be delivered to
the Administrative Agent pursuant to any Security Document shall constitute
Trust Moneys and shall be delivered by the Borrower or a Restricted Subsidiary,
as the case may be, to the Administrative Agent contemporaneously with receipt
by the Borrower or such Restricted Subsidiary and be deposited into the
Collateral Account and applied in accordance with the applicable provisions of
the Security Agreement. Insurance Proceeds and Net Awards so deposited that may
be applied by the Borrower or a Restricted Subsidiary to effect a Restoration of
the affected Collateral under the applicable Security Document may be withdrawn
from the Collateral Account only in accordance with the applicable provisions of
the Security Agreement. Insurance Proceeds and Net Awards so deposited that are
not applied to effect a Restoration of the affected Collateral under the
applicable Security Document may only be withdrawn in accordance with applicable
provisions of the Security Agreement.
(h) Notwithstanding the foregoing, to the extent that any or all of the
Net Proceeds of any disposition of assets is prohibited or delayed by applicable
law from being repatriated to the United States, the portion of such Net
Proceeds so affected will not be required to be applied pursuant to this
provision but may be retained for so long, but only for so long, as the
applicable local law will not permit repatriation to the United States. The
Borrower shall promptly take all reasonable actions required by the applicable
local law to permit such repatriation, and once such repatriation of any
affected Net Proceeds is permitted under applicable local law, such repatriation
will be immediately effected and such repatriated Net Proceeds will be applied
in the manner set forth above as if such disposition of assets had occurred on
the date of repatriation.
SECTION 7.2.7. Modification of Certain Agreements. The Borrower will not,
----------------------------------
and will not permit any Restricted Subsidiary to, amend, modify or supplement,
or permit or consent to any amendment, modification or supplement of, (i) the
Security Documents in any manner or to any extent that would constitute an Event
of Default hereunder or under the Security Documents (provided that this
Agreement and the Security Documents may be amended, modified or supplemented
as set forth in Section 10.1), (ii) the Senior Notes or the Senior Note
------------
Indenture, except to the extent such amendment, modification or supplement would
not have a Material
-60-
Adverse Effect (it being acknowledged by the Borrower that, without limitation,
any increase in the interest rate on the Senior Notes, any reduction in the
tenor or average life thereof and any modification of (including any addition
to) the covenants, defaults and remedies set forth therein (without a
corresponding modification to the covenants, defaults, defaults and remedies
applicable to the Obligations) which make such provisions more burdensome as a
whole to the Borrower shall be deemed to have a Material Adverse Effect), (iii)
the Revolving Credit Agreement which would (A) add any requirement that the
commitments or outstanding indebtedness thereunder be reduced or cash
collateralized as a result of the receipt by the Borrower or any of its
Subsidiaries of Collateral Proceeds (other than any Collateral Proceeds
resulting in a prepayment of Term Loans that is refused by a Lender under clause
------
(c) of Section 3.1.2), (B) amend, modify or supplement Section 2.3(c), 2.5(a) or
--- -------------
8.11(a) of the Revolving Credit Agreement and (C) add any provision expressly
restricting the ability of the Borrower to make payments to the Lenders in
accordance with the terms hereof, and (iv) the Tax Allocation Agreement (as
extended), the Management Agreement or the Stockholders Agreement, except to the
extent such amendment, modification or supplement would not have a material
adverse effect on the Lenders.
SECTION 7.2.8. Transactions with Affiliates. The Borrower will not, and
----------------------------
will not permit any of its Restricted Subsidiaries to, enter into transactions
with Affiliates of the Borrower or Parent (other than the Borrower and its
Wholly Owned Restricted Subsidiaries) except for Permitted Transactions,
transactions in respect of Restricted Payments made in accordance with Section
-------
7.2.3. and transactions the terms of which are no less favorable than the terms
------
which could be obtained by the Borrower, or, if the Borrower is not a party to
such transaction, such Restricted Subsidiary, as the case may be, in a
comparable transaction made on an arm's length basis between unaffiliated
parties, and for transactions involving aggregate payments in excess of
$3,000,000, the Borrower delivers to the Administrative Agent a resolution of
the Board of Directors of the Borrower (including all, if any, of the
disinterested directors) to the effect that the terms of such transactions are
fair and reasonable to the Borrower, or if the Borrower is not a party to such
transaction, such Restricted Subsidiary.
SECTION 7.2.9. Limitation on Investments. The Borrower will not, and will
-------------------------
not permit any Restricted Subsidiary to, make any Investments in any other
person, except (a) Investments in the Borrower or in any other Restricted
Subsidiary by any Restricted Subsidiary or by the Borrower in a Wholly Owned
Restricted Subsidiary of the Borrower; (b) receivables owing to the Borrower or
its Restricted Subsidiaries created in the ordinary course of business and
payable or dischargeable substantially in accordance with customary trade terms;
(c) Permitted Transactions; (d) Investments made in Cash Equivalents; (e)
Investments permitted to be made pursuant to Section 7.2.6; (f) Investments
-------------
existing on the date of this Agreement and disclosed on Item 7.2.9 of the
----------
Disclosure Schedule; and (g) Investments in Unrestricted Subsidiaries (or an
entity (or entities) which, after giving effect to such Investment, becomes an
Unrestricted Subsidiary) not otherwise permitted by clauses (a) through (f)
----------- ---
above, in an aggregate amount not exceeding at any time outstanding, the sum of
(i) $7,500,000 and (ii) an amount which is equal to the amount of Restricted
Payments permitted at such time to be made pursuant to Section 7.2.3 (the sum of
-------------
(i) and (ii) being referred to as the "Permitted Investment Amount").
---------------------------
SECTION 7.2.10. Impairment of Security Interest. (a) The Borrower will
-------------------------------
not, and will not cause or permit any of its Restricted Subsidiaries to, take or
omit to take any action which action or omission might or would have the result
of impairing the Liens and security interest in favor of the Administrative
Agent for the benefit of the Lenders with respect to the Collateral
-61-
and the Borrower will not grant to any Person, or suffer any Person to have any
interest whatsoever in the Collateral, in each case other than as otherwise
permitted by this Agreement or the Security Documents.
(b) The Borrower will not, and will not cause or permit any of its
Restricted Subsidiaries to, enter into any agreement or instrument that by its
terms requires that the proceeds received from any sale of Collateral be applied
to repay, redeem, defease or otherwise acquire or retire any Indebtedness of any
Person, other than pursuant to this Agreement or any instrument governing
Indebtedness permitted to be secured by a Lien on the Collateral pursuant to
Section 7.2.2. A release of any of the Collateral strictly in accordance with
-------------
the terms and conditions of this Agreement and the Security Documents will not
be deemed for any purpose to be an impairment of security under this Agreement.
SECTION 7.2.11. Sale and Leaseback. The Borrower will not, and will not
------------------
permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction unless (a) the Borrower would be able to incur Indebtedness (other
than Permitted Indebtedness) in an amount equal to the Attributable Debt with
respect to such Sale and Leaseback Transaction or (b) where the Borrower or such
Restricted Subsidiary receives consideration from such Sale and Leaseback
Transaction at least equal to the fair market value of the property subject
thereto (which shall be determined in good faith by the Board of Directors and
evidenced by a Board Resolution) and applies the Net Proceeds of such Sale and
Leaseback Transaction in accordance with the provisions set forth in Section
-------
7.2.6.
-----
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
----------------------------
or occurrences described in this Section 8.1 shall constitute an "Event of
----------- --------
Default".
-------
SECTION 8.1.1. Non-Payment of Obligations. (a) The Borrower shall default
--------------------------
in the payment or prepayment of any principal of, or premium with respect to,
any Term Loan when due, (b) the Borrower shall default (and such default shall
continue unremedied for a period of five or more days) in the payment when due
of any interest with respect to any Term Loan or (c) the Borrower shall default
(and such default shall continue unremedied for a period of five or more days)
after written demand therefor by the Administrative Agent, in the payment when
due of any fees, expenses or any other amounts owing hereunder or under any
other Loan Document.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of the
------------------
Borrower, any other Obligor or the Parent made or deemed to be made hereunder or
in any other Loan Document executed by it or any other writing or certificate
(including each Closing Date Certificate) furnished by or on behalf of the
Borrower, any other Obligor or Parent to any Agent, the Arranger or any Lender
for the purposes of or in connection with this Agreement or any such other Loan
Document (including any certificates delivered pursuant to Article V) is or
---------
shall be incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. Any
----------------------------------------------------
Obligor (including the Borrower) shall default in the due performance and
observance of any of its obligations under Section 7.1.2 or Section 7.2.
------------- -----------
-62-
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. The
--------------------------------------------------
Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days after the Borrower obtains knowledge of such default or written notice of
such default shall have been given to the Borrower by the Administrative Agent
at the direction of the Required Lenders specifying such default and demanding
that it be remedied.
SECTION 8.1.5. Disaffirmation of Obligations. (a) The Borrower shall
-----------------------------
either deny or disaffirm its obligations under this Agreement or any other Loan
Document or (b) any other Obligor shall either deny or disaffirm its obligations
under any other Loan Document executed by it.
SECTION 8.1.6. Default Under Revolving Credit Agreement. A default shall
----------------------------------------
occur (i) in the payment (other than in the payment of any Overadvance Payment)
when due (subject to any applicable grace period), whether by acceleration or
otherwise, of any Indebtedness of the Borrower or any of its Subsidiaries under
the Revolving Credit Agreement, (ii) in the payment of any Overadvance Payment
and such default shall continue unremedied for a period of 15 Business Days, or
(iii) in the performance or observance of any other obligation or condition with
respect to such Indebtedness and the result of such default described in this
clause (iii) is to entitle the holder or holders of such Indebtedness, or any
------------
trustee or agent for such holders, to cause such Indebtedness to become due and
payable prior to its expressed maturity and either (A) such default described in
this clause (iii) continues unremedied or unwaived for a period of 20 Business
------------
Days or (B) the maturity of any such Indebtedness is accelerated.
SECTION 8.1.7. Default on Other Indebtedness. A default shall occur (i) in
-----------------------------
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 8.1.1 or 8.1.6, of the Borrower, the Parent or any of their
------------- -----
respective Restricted Subsidiaries having a principal amount in excess of
$2,500,000 individually or $5,000,000 in the aggregate or (ii) in the
performance or observance of any obligation or condition with respect to such
Indebtedness if the effect of such default described in this clause (ii) is to
-----------
accelerate the maturity of any such Indebtedness or permit the holder or holders
of such Indebtedness, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity.
SECTION 8.1.8. Judgments. A final judgment or final judgments for the
---------
payment of money are entered by a court or courts of competent jurisdiction
against the Borrower, the Parent or any of their respective Restricted
Subsidiaries and such judgment or judgments remain undischarged, unvacated,
unbonded or unstayed for a period of sixty days, in an amount equal to or
greater than, in the case of any one such judgment, $2,500,000, and, in the case
of all such judgments, $5,000,000 (in each case to the extent a reputable
insurance company has not acknowledged coverage of such claim in writing).
SECTION 8.1.9. Bankruptcy, Insolvency, etc.
---------------------------
(a) The Borrower, the Parent or any of their respective Restricted
Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
-63-
(ii) consents to the entry of an order for relief against it in
an involuntary case in which it is a debtor,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) admits in writing its inability to pay debts as the same
become due; or
(b) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Borrower , the Parent or any of
their respective Restricted Subsidiaries in an involuntary case in which it
is a debtor,
(ii) appoints a Custodian of the Borrower, the Parent or any of
their respective Restricted Subsidiaries or for all or substantially all of
their property,
(iii) orders the liquidation of the Borrower, the Parent or any
of their respective Restricted Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days.
SECTION 8.1.10. Impairment of Security, etc. Any of the Security Documents
---------------------------
ceases to give the Administrative Agent a valid and perfected Lien of the
priority required thereby or the rights, powers and privileges purported to be
created thereby (other than in accordance with their respective terms), or any
of the Security Documents is declared null and void, or the Borrower, or any
other Obligor denies any of its obligations under any of the Security Documents
or any Collateral becomes subject to any Lien other than the Liens created or
permitted by the Security Documents or this Agreement, and such default shall
continue unremedied for a period of at least 15 days after the Borrower obtains
knowledge of such default or written notice of such default shall have been
given to the Borrower by the Administrative Agent.
SECTION 8.2. Action if Bankruptcy, etc. If any Event of Default
-------------------------
described in Section 8.1.9 shall occur with respect to the Borrower, the Term
-------------
Loan Commitments (if not theretofore terminated) shall automatically terminate
and the outstanding principal amount of all outstanding Term Loans and all other
Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
--------------------------------
(other than an Event of Default described in Section 8.1.9 with respect to the
-------------
Borrower) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Term Loans and other Obligations to be due
and payable and/or declare the Term Loan Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Term
Loans and other Obligations which shall be so declared due and payable shall be
and become immediately due and payable, without further
-64-
notice, demand or presentment, and/or, as the case may be, the Term Loan
Commitments shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1. Appointment of Agents. Each Lender hereby irrevocably
---------------------
appoints DLJ as Syndication Agent and Fleet as its Administrative Agent under
and for purposes of this Agreement, the Term Notes and each other Loan Document.
Each Lender authorizes the Administrative Agent to act on behalf of such Lender
under this Agreement, the Term Notes and each other Loan Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by the Administrative Agent (with respect to which the
Administrative Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel), to exercise such powers
hereunder and thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof, together with such powers
as may be reasonably incidental thereto. The provisions of this Article IX are
solely for the benefit of the Agents and Lenders, and neither the Borrower nor
any other Obligor shall have any rights as a third-party beneficiary of any of
the provisions hereof other than with respect to the resignation of the
Syndication Agent or the Administrative Agent. In performing their functions and
duties under this Agreement and each other Loan Document, the Syndication Agent
and the Administrative Agent shall act solely as agents of the Lenders and do
not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for the Borrower or any other Obligor.
Notwithstanding any implication to the contrary, the Documentation Agent has no
duties, obligations or responsibilities hereunder or under any other Loan
Document.
SECTION 9.2. Nature of Duties of the Agents. The Agents shall have no
------------------------------
duties, obligations or responsibilities except those expressly set forth in this
Agreement and each other Loan Document. Neither the Agents nor any of their
officers, directors, employees or agents shall be liable for any action taken or
omitted by it as such hereunder or under each other Loan Document or in
connection herewith or therewith, unless caused by its or their gross negligence
or willful misconduct. The duties of the Agents shall be mechanical and
administrative in nature; the Agents shall not have by reason of this Agreement
or any other Loan Document a fiduciary relationship in respect of any Lender;
and nothing in this Agreement or any other Loan Document, expressed or implied,
is intended to or shall be so construed as to impose upon the Agents any
obligations in respect of this Agreement or any other Loan Document except as
expressly set forth herein or therein. No duty to act, or refrain from acting,
and no other obligation whatsoever, shall be implied on the basis of or imputed
in respect of any right, power or authority granted to any Agent or shall become
effective in the event of any temporary or partial exercise of such rights,
power or authority.
SECTION 9.3. General Immunity. Neither the Agents, the Arranger nor any
----------------
of their directors, officers, agents, attorneys or employees shall be liable to
any Lender for any action taken or omitted to be taken by it or them under this
Agreement or any other Loan Document or in connection herewith or therewith
except for its or their own willful misconduct or gross negligence. Without
limiting the generality of the foregoing, the Agents and the Arranger: (i)
shall not be responsible to the Lenders for any recitals, statements, warranties
or representations
-65-
under this Agreement or any other Loan Document or any agreement or document
relative hereto or thereto or for the financial or other condition of any
Obligor, (ii) shall not be responsible for the authenticity, accuracy,
completeness, value, validity, effectiveness, due execution, legality,
genuineness, enforceability, collectibility or sufficiency of this Agreement or
any other Loan Document or any other agreements or any assignments,
certificates, requests, financial statements, projections, notices, schedules or
opinions of counsel executed and delivered pursuant hereto or thereto, (iii)
shall not be bound to ascertain or inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement or any other Loan
Document on the part of Obligors or of any of the terms of any such agreement by
any party hereto or thereto and shall have no duty to inspect the property
(including the books and records) of any Obligor, (iv) shall have no obligation
whatsoever to the Lenders or to any other Person to assure that the Collateral
exists or is owned by the Borrower or another Obligor or is cared for, protected
or insured or that the Liens granted to the Administrative Agent herein or in
any other Loan Document or pursuant hereto or thereto have been properly or
sufficiently or lawfully created, perfected, protected, enforced, realized upon
or are entitled to any particular priority, and (v) shall incur no liability
under or in respect of this Agreement or any other Loan Document or any other
document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, cable, telex, telecopier or similar form of
facsimile transmission) believed by any Agent to be genuine and signed or sent
by the proper party. Each Agent may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by such Agent and shall not be liable for any action taken or omitted
to be taken in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 9.4. Successor. The Syndication Agent may resign as such upon one
---------
Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrower and all Lenders. If the Administrative Agent at any time
shall resign, the Required Lenders may, with the prior consent of the Borrower
(which consent shall not be unreasonably withheld), appoint another Lender as a
successor Administrative Agent which shall thereupon become the Administrative
Agent hereunder. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 20 days after the retiring Administrative Agent's giving notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be one of the
Lenders or a commercial banking institution organized under the laws of the
United States or a United States branch or agency of a commercial banking
institution, and having 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 be
entitled to receive from the retiring Administrative Agent such documents of
transfer and assignment as such successor Administrative Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions of (i) this
Article IX shall inure to its benefit as to any actions taken or omitted to be
----------
taken by it while it was the Administrative Agent under this Agreement and (ii)
Section 10.3 and Section 10.4 shall continue to inure to its benefit.
------------ ------------
-66-
SECTION 9.5. Agents in Their Capacity as Lenders. With respect to their
-----------------------------------
obligation (if any) to lend under this Agreement and each other Loan Document,
the Agents shall have the same rights and powers under this Agreement and each
other Loan Document as any Lender and may exercise the same as though it were
not an Agent. "Lender" or "Lenders" shall, unless the context otherwise
indicates, include each Agent in its capacity as a Lender hereunder. The
Agents, any Lender and their respective affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking or trust business
with the Borrower or any other Obligor, as if it were not an Agent or as if it
or they were not a Lender hereunder and without any duty to account therefor to
the other parties to this Agreement; provided, that the obligations of the
--------
Borrower under such transactions shall not be deemed to be Obligations secured
by any Collateral without the prior written agreement of the Required Lenders.
SECTION 9.6. Actions by Each Agent. (a) Actual Knowledge. Each Agent
--------------------- ----------------
may assume that no Event of Default has occurred and is continuing, unless such
Agent has actual knowledge of the Event of Default, has received notice from the
Borrower or the Borrower's independent certified public accountants stating the
nature of the Event of Default, or has received notice from a Lender stating the
nature of the Event of Default and that such Lender considers the Event of
Default to have occurred and to be continuing.
(b) Discretion to Act. The Administrative Agent and the Syndication
-----------------
Agent shall each have the right to request instructions from the Required
Lenders by notice to each Lender. If such Agent shall request instructions from
the Required Lenders with respect to any act or action (including the failure to
act) in connection with this Agreement or any other Loan Document, such Agent
shall be entitled to refrain from such act or taking such action unless and
until it shall have received instructions from the Required Lenders, and such
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against any Agent as a result of such Agent acting or refraining from
acting hereunder or under any other Loan Document in accordance with the
instructions of the Required Lenders, except to the extent that the consent of
such Lender or all of the Lenders to such instructions was required under
Section 10.1 and not given by such Lender or all of the Lenders in accordance
------------
with the terms thereof. The Administrative Agent and the Syndication Agent may
each give any notice required under Article VIII hereof without the consent of
------------
any of the Lenders unless otherwise directed by the Required Lenders in writing
and will, at the direction of the Required Lenders, give any such notice
required under Article VIII. Except for any obligation expressly set forth in
------------
this Agreement or any other Loan Document, each of the Administrative Agent and
the Syndication Agent may, but shall not be required to, exercise its discretion
to act or not act, except that such Agent shall be required to act or not act
upon the instructions of the Required Lenders (unless all of the Lenders are
required to provide such instructions as provided in Section 10.1) and those
------------
instructions shall be binding upon such Agent and all Lenders; provided,
--------
however, that such Agent shall not be required to act or not act if to do so
-------
would expose such Agent to liability or would be contrary to this Agreement or
any other Loan Document or to applicable law.
SECTION 9.7. Right to Indemnity. Each Agent shall be fully justified in
------------------
failing or refusing to take any action under this Agreement or any other Loan
Document or in relation hereto or thereto unless it shall first be indemnified
(upon requesting such indemnification) to its satisfaction by the Lenders
against any and all liability and expense which it may incur by reason of taking
or continuing to take any such action. The Lenders further agree to indemnify
each Agent ratably in accordance with their Percentages for any and all
liabilities, obligations, losses,
-67-
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby, or the enforcement of any of the terms hereof or thereof or of any
other documents, and either not indemnified by the Borrower pursuant to Section
-------
10.4 or with respect to which the Borrower has failed to fully honor its
----
indemnification obligations under Section 10.4; provided, however, that no such
------------ -------- -------
liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement results solely from such Agent's gross negligence or
willful misconduct. Each Lender agrees to reimburse each Agent in the amount of
its pro rata share of any out-of-pocket expenses for which such Agent is
entitled to receive, but has not received, reimbursement pursuant to this
Agreement. The agreements in this Section 9.7 shall survive the payment and
-----------
fulfillment of the Obligations and termination of this Agreement.
SECTION 9.8. Administrative Agent. Without limiting the effect of any
--------------------
other provision of this Article IX, each Lender consents and agrees to all of
----------
the terms and provisions of the Security Documents and the Intercreditor
Agreement, as the same may be in effect from time to time or may be amended,
supplemented or otherwise modified from time to time in accordance with the
provisions of the Security Documents, the Intercreditor Agreement and this
Agreement, and authorizes and directs the Administrative Agent to act as
mortgagee or secured party with respect thereto.
SECTION 9.9. Suits to Protect Collateral. Subject to the provisions of
---------------------------
the Intercreditor Agreement, the Administrative Agent, acting at the written
direction of the Required Lenders, shall have power to institute and to maintain
such suits and proceeds as the Administrative Agent may deem expedient to
prevent any impairment of the Collateral by any acts which may be unlawful or in
violation of any of the Security Documents or this Agreement, and such suits and
proceedings as the Administrative Agent may deem expedient to preserve or
protect its interest and the interests of the Lenders in the Collateral
(including the power to institute and maintain suits or proceedings to restrain
the enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the Liens of the Administrative Agent in the Collateral or be prejudicial
to the interests of the Lender or the Administrative Agent).
SECTION 9.10. Determinations Relating to Collateral. In the event (i) the
-------------------------------------
Administrative Agent shall receive any written request from the Borrower or any
other Obligor under any Security Document for consent or approval with respect
to any matter relating to any Collateral or the Borrower's or such Obligor's
obligations with respect thereto or (ii) there shall be due to or from the
Administrative Agent under the provisions of any Security Document any
performance or the delivery of any instrument or (iii) the Administrative Agent
shall become aware of any nonperformance by the Borrower or any other Obligor of
any covenant or any breach of any representation or warranty for the Borrower or
any other Obligor set forth in any Security Document, then, in each such event,
the Administrative Agent shall be entitled, at the expense of the Borrower and
subject to Section 9.6(b), to hire experts, consultants, agents and attorneys
--------------
(including internal counsel) to advise the Administrative Agent on the manner in
which the Administrative Agent should respond to such request or render any
requested performance or response to such nonperformance or breach. The
Administrative Agent shall be fully protected in the taking of any action
recommended or approved by any such expert, consultant, agent or
-68-
attorney (including internal counsel) or agreed to by the Required Lenders
pursuant to Section 9.6(b).
--------------
SECTION 9.11. Trust Moneys. To the extent Trust Moneys consist of
------------
insurance proceeds or condemnation or other taking awards, any such moneys which
may be used to effect a restoration of the affected Collateral shall be
permitted to be withdrawn by the Borrower and paid by the Administrative Agent.
SECTION 9.12. Release of Collateral. Each Lender hereby irrevocably
---------------------
authorizes the Administrative Agent, at its option and in its discretion, to
release any Lien granted to or held by or for the benefit of the Administrative
Agent with respect to any Restricted Subsidiary or Collateral (i) upon
termination of the Lenders' obligations to make Term Loans and payment and
satisfaction of all Term Loans and all other Obligations and which the
Administrative Agent has been notified in writing are then due and payable; (ii
constituting Collateral being sold or disposed of if the Borrower certifies to
the Administrative Agent pursuant to an Officers' Certificate that the sale or
disposition is being made in compliance with the terms of this Agreement and the
other Loan Documents (and, absent any actual knowledge of the Administrative
Agent to the contrary, the Administrative Agent may rely conclusively on any
such certificate, without further inquiry); (ii constituting property in which
the Borrower or any other Obligor owned no interest at the time the Lien was
granted and at all times thereafter; or (iv if approved, authorized or ratified
in writing by the Administrative Agent at the direction of the Lenders required
pursuant to Section 10.1. Upon request by the Administrative Agent at any time,
------------
each Lender will confirm in writing the Administrative Agent's authority to
release particular types or items of Collateral pursuant to this Section 9.12.
------------
Upon any sale and transfer of Collateral which is expressly permitted
pursuant to the terms of this Agreement or any other Security Document, or
consented to in writing by the Required Lenders or all of the Lenders, as
applicable, and upon at least five Business Days' prior written request by the
Borrower, the Administrative Agent shall (and is hereby irrevocably authorized
by the Lenders to) execute such documents as may be necessary to evidence the
release of the Liens granted to the Administrative Agent for the benefit of the
Lenders herein or pursuant hereto upon the Collateral that was sold or
transferred; provided that (i) the Administrative Agent shall not be required to
--------
execute any such document on terms which, in the Administrative Agent's opinion,
would expose the Administrative Agent to liability or create any obligation or
entail any consequence other than the release of such Liens without recourse,
representation or warranty and (ii) such release shall not in any manner
discharge, affect or impair the Obligations or any Liens upon (or obligations of
the Borrower or any of its Subsidiaries in respect of) all interests retained by
the Borrower or any of its Subsidiaries, including, without limitation, the
proceeds of the sale, all of which shall continue to constitute part of the
Collateral. In the event of any sale or transfer of Collateral, or any
foreclosure with respect to any of the Collateral, the Administrative Agent
shall be authorized to deduct all of the expenses reasonably incurred by the
Administrative Agent from the proceeds of any such sale, transfer or
foreclosure.
SECTION 9.13. Application of Proceeds of Collateral. The Administrative
-------------------------------------
Agent shall apply the proceeds of the Collateral payable to the Administrative
Agent for the benefit of it and the Lenders, first, to the payment of all costs
-----
and expenses incurred by the Administrative Agent in connection with such
collection or otherwise in connection with this Agreement or any other Loan
Document, including and together with any amounts then due and payable to the
-69-
Administrative Agent (in its capacity as such) hereunder (including any amount
then due and payable to the Administrative Agent pursuant to its rights to
indemnification under Sections 10.4 and 9.7), and, second, to the payment in
------------- --- ------
full of the Obligations then due and payable to the Lenders (such payment to be
distributed among the Lenders pro rata in accordance with the amount of such
--- ----
Obligations owed to them on the date of such distribution).
SECTION 9.14. Rights and Remedies to be Exercised by Administrative Agent
-----------------------------------------------------------
Only. In the event any remedy may be exercised with respect to this Agreement
----
or any other Loan Document or the Collateral, the Administrative Agent shall
pursue remedies designated by the Required Lenders subject to the proviso set
forth in Section 9.6(b). Each Lender agrees that, except as otherwise provided
--------------
in Section 4.9, it shall have no right individually to realize upon the security
-----------
created by this Agreement or any other Loan Document.
SECTION 9.15. Credit Decisions. Each Lender acknowledges that it has,
----------------
independently of and without reliance upon any Agent, the Arranger or any other
Lender, and based on such Lender's review of the financial information of the
Borrower and each other Obligor, this Agreement, the other Loan Documents (the
terms and provisions of which being satisfactory to such Lender) and such other
documents, information and investigations as such Lender has deemed appropriate,
made its own credit decision to extend its commitments. Each Lender also
acknowledges that it will, independently of and without reliance upon any Agent,
the Arranger or any other Lender, and based on such other documents, information
and investigations as it shall deem appropriate at any time, continue to make
its own credit decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or any other Loan
Document. Except as otherwise expressly provided for herein, the Agents shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition, litigation,
liabilities or business of the Parent, the Borrower or any other Obligor.
SECTION 9.16. Copies, etc. The Administrative Agent shall give prompt
-----------
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent (and not concurrently to the Lenders) by the
Borrower pursuant to the terms of this Agreement (unless concurrently delivered
to the Lenders by the Borrower). The Administrative Agent will distribute to
each Lender each document or instrument received for such Lender's account and
copies of all other communications received by the Administrative Agent from the
Borrower for distribution to the Lenders by the Administrative Agent in
accordance with the terms of this Agreement (except to the extent any such
Lender shall have provided written notice to the Administrative Agent that it is
not to receive any such documents, instruments or communications). In the event
such information is so furnished by any Agent, such Agent shall have no duty to
confirm or verify its accuracy or completeness and shall have no liability
whatsoever with respect thereto.
SECTION 9.17. The Syndication Agent and the Administrative Agent.
--------------------------------------------------
Notwithstanding anything else to the contrary contained in this Agreement or any
other Loan Document, the Syndication Agent and the Administrative Agent, in
their respective capacities as such, shall have no duties or responsibilities
under this Agreement or any other Loan Document nor any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Syndication Agent or the Administrative Agent, as applicable, in
such capacity except as are explicitly set forth herein or in the other Loan
Documents.
-70-
SECTION 9.18. Agreement to Cooperate. Each Lender agrees to cooperate with
----------------------
the Agents to the end that the terms and provisions of this Agreement may be
promptly and fully carried out. The Lenders also agree, from time to time, at
the request of the Administrative Agent or the Syndication Agent, to execute and
deliver any and all other agreements, documents or instruments and to take such
other actions, all as may be reasonably necessary or desirable to effectuate the
terms, provisions and intent of this Agreement and the other Loan Documents.
SECTION 9.19. Lenders to Act as Agents. If any Collateral or proceeds
------------------------
thereof at any time comes into the possession or under the control of any
Lender, such Lender shall hold such Collateral or proceeds thereof as agent for
the joint benefit of the Lenders, and will, upon receipt therefor, deliver such
Collateral or proceeds thereof to the Administrative Agent.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
------------------------
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and, unless
otherwise provided in such other Loan Document with respect to such Loan
Document, consented to by the Borrower and the Required Lenders; provided,
--------
however, that no such amendment, modification or waiver which would:
-------
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 10.1 or clause (i) of Section 10.10, change
------------ ---------- -------------
the definition of "Required Lenders", reduce any fees described in Section
-------
3.3 or extend the Term Loan Commitment Termination Date shall be made
---
without the consent of each Lender adversely affected thereby;
(c) increase the aggregate amount any Lender would be required to
lend to the Borrower hereunder shall be made without the consent of such
Lender;
(d) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on or fees payable in
respect of any Term Loan (it being understood and agreed that an increase
in the amount of any Indebtedness of the Borrower under this Agreement and
any subsequent pro rata scheduled prepayment of such increased amount
--- ----
pursuant to the terms of this Agreement shall not be deemed to be a
reduction of the scheduled prepayment of the other Indebtedness of the
Borrower under this Agreement to the extent such prepayment is pro rata
--- ----
among all Lenders) or reduce the principal amount of or rate of interest on
any Term Loan shall be made without the consent of the holder of such Term
Loan;
(e) release all or substantially all of the Collateral, except in
each case as otherwise specifically provided in this Agreement or
applicable Security Document (it being understood and agreed that an
increase in the amount of any Indebtedness of the
-71-
Borrower under this Agreement secured ratably by the Collateral shall not
be deemed to be a release of Collateral), shall be made without the consent
of each Lender; or
(f) affect adversely the interests, rights or obligations of any
Agent or the Arranger (in its capacity as Agent or Arranger), unless
consented to by such Agent or Arranger, as the case may be.
No failure or delay on the part of any Agent, any Lender or the holder of any
Term Loan in exercising any power or right under this Agreement or any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Borrower in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by any Agent, any Lender or the
holder of any Term Loan under this Agreement or any other Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications provided to
-------
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth in Schedule II hereto or, in the case
-----------
of a Lender that becomes a party hereto after the date hereof, as set forth in
the Lender Assignment Agreement pursuant to which such Lender becomes a Lender
hereunder or at such other address or facsimile number as may be designated by
such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted (and electronic
confirmation of receipt thereof has been received).
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay on
-----------------------------
demand all fees, costs and expenses of each of the Agents (including the
reasonable fees and out-of-pocket expenses of counsel to the Agents and of local
counsel, or foreign legal counsel if any, who may be retained by counsel to the
Agents) in connection with
(a) in the case of the Administrative Agent, the negotiation,
preparation, execution and delivery of the Fee Letter, this Agreement and
of each other Loan Document, including schedules and exhibits, in each
case, to the extent provided in the Fee Letter;
(b) any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from time
to time hereafter be required, whether or not the transactions contemplated
hereby or thereby are consummated;
(c) the filing, recording, refiling or rerecording of
(i) each (A) Mortgage and (B) Uniform Commercial Code financing
statement that is not filed in connection with the closing hereof,
-72-
(ii) all amendments, supplements and modifications to any of the
foregoing Mortgages or Uniform Commercial Code financing statements or
any Mortgage or Uniform Commercial Code financing statement filed in
connection with the closing hereof, and
(iii) any and all other documents or instruments of further
assurance required to be filed or recorded or refiled or rerecorded by
the terms hereof or of any such Mortgage, the Security Agreement or
any other Security Document;
(d) following the Closing Date, the preparation and review of the
form of any document or instrument relevant to this Agreement or any other
Loan Document; and
(e) any due diligence investigation performed following the Closing
Date by either the Arranger or either Agent.
The Borrower further agrees to pay, and to save the Agents and the Lenders
harmless from all liability for, any stamp or other similar taxes which may be
payable in connection with the execution or delivery of this Agreement, the Term
Loans made hereunder or the issuance of the Term Notes or any other Loan
Documents. The Borrower also agrees to reimburse each Agent and each Lender
upon demand for all reasonable out-of-pocket expenses (including attorneys' fees
and legal expenses (provided one counsel is selected to represent the Agents and
the Lenders, which may include such additional local and/or foreign counsel that
such counsel deems appropriate)) incurred by such Agent or such Lender in
connection with (x) the negotiation of any restructuring or "work-out", whether
or not consummated, of any Obligations, (y) the enforcement of any Obligations
and (z) any litigation relating to the Obligations, this Agreement or any Loan
Document.
SECTION 10.4. Indemnification. In consideration of the execution and
---------------
delivery of this Agreement by each Agent and each Lender and the extension of
the Term Loan Commitments, the Borrower hereby, to the fullest extent permitted
under applicable law, indemnifies, exonerates and holds each Agent, the
Arranger and each Lender and each of their respective Affiliates, and each of
their respective partners, officers, directors, employees and agents, and each
other Person controlling any of the foregoing within the meaning of either
Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Exchange Act (collectively, the "Indemnified Parties"), free and harmless from
-------------------
and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements (including those of internal counsel) (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any of them
-----------------------
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Term Loan;
(b) the entering into and performance of this Agreement, the Fee
Letter and any other Loan Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Borrower as the result
of any determination by the Required Lenders pursuant to Article V not to
-------------
fund any Borrowing);
-73-
(c) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by the Borrower or any of its
Subsidiaries of any Hazardous Material;
(d) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, the Borrower or
such Subsidiary; or
(e) the investigation, defense, or participation in any action or
other proceeding related to the Indemnified Liabilities regardless of
whether or not such Indemnified Party is a party to any such action or
proceeding;
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party solely by reason of the relevant Indemnified
Party's gross negligence or willful misconduct. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
-------- --------
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
--- --- --- --- ---- ----
Sections 9.1 and (to the extent set forth therein) 10.13, shall in each case
------------ -----
survive any termination of this Agreement, the payment in full of all
Obligations and the termination of all Term Loan Commitments. The
representations and warranties made by the Borrower and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any other
------------
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such other Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of each
--------
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
---------------------------------------------
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall become effective
when counterparts hereof executed on behalf of the Borrower and each Lender (or
notice thereof satisfactory to the Agents) shall have been received by the
Syndication Agent.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE TERM
-------------------------------
NOTES AND, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY
-74-
PROVIDED THEREIN, EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement,
the Term Notes and the other Loan Documents constitute the entire understanding
among the parties hereto with respect to the subject matter hereof and supersede
any prior agreements, written or oral, with respect thereto. Upon the execution
and delivery of this Agreement by the parties hereto, all obligations and
liabilities of the Arranger shall be terminated and of no further force or
effect.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
----------------------
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that (i) the Borrower may not assign
-------- -------
or transfer its rights or obligations hereunder without the prior written
consent of each of the Agents and all Lenders (except as may be otherwise
expressly provided in Section 7.2.5, and (ii) the rights of sale, assignment and
-------------
transfer of the Lenders are subject to Section 10.11.
-------------
SECTION 10.11. Sale and Transfer of Term Loans and Term Notes;
-----------------------------------------------
Participations in Term Loans and Term Notes. Each Lender may assign, or sell
-------------------------------------------
participations in, its Term Loan and Term Loan Commitment to one or more other
Persons in accordance with this Section 10.11.
-------------
SECTION 10.11.1. Assignments. Any Lender (the "Assignor Lender"),
----------- ---------------
(a) with written notice to the Syndication Agent and the
Administrative Agent and the written consents of the Borrower and the
Syndication Agent (which consents shall not be (i) unreasonably delayed or
withheld or (ii) which consent in the case of the Borrower, shall be deemed
to have been given in the absence of a written notice delivered by the
Borrower to the Administrative Agent, on or before the fifth Business Day
after receipt by the Borrower of such Assignor Lender's request for
consent, stating, in reasonable detail, the reasons why the Borrower
proposes to withhold such consent), may at any time assign and delegate to
one or more commercial banks or other financial institutions (including
funds or trusts regularly engaged in the business of making, purchasing or
investing in commercial loans), and
(b) with notice to the Borrower, the Syndication Agent and the
Administrative Agent, but without the consent of the Borrower, the
Syndication Agent or the Administrative Agent, may assign and delegate to
(x) any of its Affiliates, (y) any Approved Fund or (z) any other Lender or
Affiliates of such other Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Assignor Lender's total
---------------
Term Loans and Term Loan Commitment and, in the case of Assignee Lenders not
described in clause (b) above, in a minimum aggregate amount of (i) $1,000,000
----------
or (ii) the then remaining amount of such Lender's Term Loans, Term Notes and
Term Loan Commitment; provided, however, that any such Assignee Lender shall
-------- -------
have complied, if applicable, with the provisions contained in the last sentence
of Section 4.6 and provided further, however, that, the Borrower, each other
----------- -------- ------- -------
Obligor and the Agents shall be entitled to continue to deal solely and directly
with such Assignor Lender in connection with the interests so assigned and
delegated to an Assignee Lender until
-75-
(i) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the
Borrower, the Syndication Agent and the Administrative Agent by such
Assignor Lender and such Assignee Lender;
(ii) such Assignor Lender and such Assignee Lender shall have
executed and delivered to the Borrower, the Syndication Agent and the
Administrative Agent a Lender Assignment Agreement, accepted by the
Administrative Agent; and
(iii) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the Assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall, except as provided in Section 10.5, be released from its
------------
obligations hereunder and under the other Loan Documents. To the extent any
such assignment and delegation includes an assignment of Term Notes, within ten
Business Days after its receipt of notice that the Administrative Agent has
accepted an executed Lender Assignment Agreement, the Borrower shall execute and
deliver to the Administrative Agent if requested by the relevant Assignee Lender
in accordance with Section 2.5(b) (for delivery to such relevant Assignee
--------------
Lender) a new Term Note evidencing such Assignee Lender's assigned Term Loans
and Term Loan Commitments and, if the Assignor Lender has retained Term Loans
and Term Loan Commitments hereunder and has requested a replacement Term Note in
accordance with Section 2.5(b), a replacement Term Note in the principal amount
--------------
of the Term Loans and Term Loan Commitments retained by the Assignor Lender
hereunder (such Term Note to be in exchange for, but not in payment of, that
Term Note then held by such Assignor Lender). Each such Term Note shall be
dated the date of the predecessor Term Note. The Assignor Lender shall xxxx the
predecessor Term Note "exchanged" and deliver it to the Borrower. Accrued
interest on that part of the predecessor Term Note evidenced by the new Term
Note, and accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of the predecessor Term Note evidenced
by the replacement Term Note shall be paid to the Assignor Lender. Accrued
interest and accrued fees shall be paid at the same time or times provided in
the predecessor Term Note and in this Agreement. Such Assignor Lender or such
Assignee Lender must also pay a processing fee to the Administrative Agent upon
delivery of any Lender Assignment Agreement in the amount of $1,000, unless (A)
such assignment and delegation is by a Lender party to this Agreement on the
Closing Date and such assignment and delegation is pursuant to the primary
syndication of the Term Loans and is notified to the Administrative Agent within
ten Business Days of the Closing Date, (B) such assignment and delegation is by
a Lender to its Affiliate or to a Federal Reserve Bank as provided below or (C)
such fee is waived by the Administrative Agent. Any attempted assignment and
delegation not made in accordance with this Section 10.11.1 shall be null and
---------------
void. Nothing contained in this Section 10.11.1 shall prevent or prohibit any
---------------
Lender from pledging its rights (but not its obligations to make Loans) under
this Agreement and/or its Loans and/or its Term Note hereunder to a Federal
Reserve Bank in
-76-
support of borrowings made by such Lender from such Federal Reserve Bank and any
Lender that is an investment fund that invests in commercial loans may, without
the consent of the Syndication Agent, the Administrative Agent or the Borrower,
pledge all or any portion of its interest and rights (but may not delegate any
of its duties or obligations hereunder or under any other Loan Document,
including its Term Loan Commitment, if any) to any trustee or any other
representative of holders of obligations owed or securities issued by such
investment fund as security for such obligations or securities.
The Borrower hereby designates the Administrative Agent to serve as the
Borrower's agent, solely for the purpose of this paragraph, to maintain a
register (the "Register") on which the Administrative Agent will record each
-------
Lender's Term Loan Commitment, the Term Loans made by each Lender, and each
repayment in respect of the principal amount of the Term Loans of each Lender
and annexed to which the Administrative Agent shall retain a copy of each Lender
Assignment Agreement delivered to the Administrative Agent pursuant to this
Section 10.11.1. Failure to make any recordation, or any error in such
---------------
recordation, shall not affect the Borrower's obligations in respect of such Term
Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person in whose name a Term Loan is registered as the owner thereof
for all purposes of this Agreement, notwithstanding notice or any provisions
herein to the contrary. A Lender's Term Loan Commitment and the Term Loans made
pursuant thereto may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer in the Register. Any
assignment or transfer of a Term Lender's Loan Commitment or the Term Loans made
pursuant thereto shall be registered in the Register only upon delivery to the
Administrative Agent of a Lender Assignment Agreement duly executed by the
assignor thereof. No assignment or transfer of a Lender's Term Loan Commitment
or the Term Loans made pursuant thereto shall be effective unless such
assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one or
--------------
more commercial banks or other Persons (each such commercial bank and other
Person being herein called a "Participant") participating interests in any of
-----------
the Term Loans, Term Loan Commitments or other interests of such Lender
hereunder; provided, however, that
-------- -------
(a) no participation contemplated in this Section shall relieve such
Lender from its Term Loan Commitments or its other obligations hereunder
or under any other Loan Document;
(b) such Lender shall remain solely responsible for the performance
of its Term Loan Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Agents shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and each of the other
Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender, is an Approved Fund or is itself a Lender, shall be entitled to
require such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's consent,
agree to (i) any reduction in the interest rate or amount of fees that
-77-
such Participant is otherwise entitled to, (ii a decrease in the principal
amount, or an extension of the final Stated Maturity Date, of any Term Loan
in which such Participant has purchased a participating interest or (ii a
release of all or substantially all of the collateral security under the
Loan Documents except as otherwise specifically provided in a Loan
Document; and
(e) the Borrower shall not be required to pay any amount under
Section 4.6, that is greater than the amount which it would have been
-----------
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6 (provided such Participant complies with all
------------ --- --- ---
requirements therein regarding the execution and delivery certain Internal
Revenue Service forms or other certificates), 4.8, 4.9, 10.3 and 10.4, shall be
--- --- ---- ----
considered a Lender.
SECTION 10.12. Other Transactions. Nothing contained herein shall preclude
------------------
any Agent or any other Lender from engaging in any transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION 10.13. Confidentiality. Each Lender agrees to maintain, in
---------------
accordance with its customary procedures for handling confidential information,
the confidentiality of all information provided to it by or on behalf of the
Borrower or any Subsidiary, or by the Administrative Agent or the Syndication
Agent on the Borrower's or such Subsidiary's behalf, under this Agreement or any
other Loan Document ("Confidential Information"), and neither it nor any of its
------------------------
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with
other business now or hereafter existing or contemplated with the Borrower or
any Subsidiary, except to the extent such information (a) was or becomes
generally available to the public other than as a result of disclosure by the
Lender or (b) was or becomes available on a non-confidential basis from a source
other than the Borrower, provided that such source is not bound by a
confidentiality agreement with the Borrower known to the Lender; provided,
--------
however, that any Lender may disclose such information (i) at the request or
-------
pursuant to any requirement of any governmental authority to which the Lender is
subject or in connection with an examination of such Lender by any such
governmental authority; (ii) pursuant to subpoena or other court process; (iii)
when required to do so in accordance with the provisions of any applicable
requirement of law; (iv) to the extent reasonably required in connection with
any litigation or proceeding to which the Administrative Agent, any Lender or
their respective Affiliates may be party; (v) in connection with the exercise of
any remedy hereunder or under any other Loan Document; (vi) to such Lender's
independent auditors and other professional advisors who have been advised that
such information is confidential pursuant to this Section 10.13; (vii) to any
-------------
Participant or Assignee Lender, actual or potential, provided that such Person
--------
shall have agreed in writing to keep such information confidential to the same
extent required of the Lenders hereunder; and (viii) to its Affiliates who have
been advised that such information is confidential pursuant to this Section
-------
10.13. Unless prohibited by applicable law or court order, each Lender and the
-----
Administrative Agent shall notify the Borrower of any request by any
governmental authority (other than any request in connection with an examination
of the financial condition of such Lender) for disclosure of Confidential
Information prior to such disclosure; provided that in
--------
-78-
no event shall any of the Agents or any Lender be obligated to return any
materials furnished by the Borrower or any of its Subsidiaries. This Section
shall supersede any confidentiality letter or agreement with respect to the
Borrower or the Facilities entered into prior to the date hereof. Each Lender's
obligations under this Section 10.13 shall survive for three years after the
-------------
date it ceases to be a Lender hereunder.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
-------------------------------------------
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS OR THE
BORROWER RELATING THERETO SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY (TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE STATE OF NEW YORK,
NEW YORK COUNTY, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
-------- -------
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY, AND
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK.
THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER
HEREBY IRREVOCABLY WAIVES (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE AGENTS, THE LENDERS AND THE
--------------------
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS OR THE
-79-
BORROWER RELATING THERETO. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
-80-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXX X. XXXXXXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Financial Officer
DLJ CAPITAL FUNDING, INC., as the
Syndication Agent and as a Lender
By:
----------------------
Name:
Title:
BANKERS TRUST COMPANY, as the
Documentation Agent and as a Lender
By:
----------------------
Name:
Title:
FLEET NATIONAL BANK, as
the Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXX X. XXXXXXXXX COMPANY
By:
----------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC., as the
Syndication Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
BANKERS TRUST COMPANY, as the
Documentation Agent and as a Lender
By:
----------------------
Name:
Title:
FLEET NATIONAL BANK, as
the Administrative Agent
By:
----------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXX X. XXXXXXXXX COMPANY
By:
----------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC., as the
Syndication Agent and as a Lender
By:
----------------------
Name:
Title:
BANKERS TRUST COMPANY, as the
Documentation Agent and as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK, as
the Administrative Agent
By:
----------------------
Name:
Title:
