Exhibit 10.11
[CONFORMED COPY WITH EXHIBITS
H AND I CONFORMED AS EXECUTED]
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CREDIT AGREEMENT
AMONG
GENERAC PORTABLE PRODUCTS, LLC,
GENERAC PORTABLE PRODUCTS, INC.,
GPPW, INC.,
VARIOUS BANKS,
AND
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
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DATED AS OF JULY 9, 1998
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$115,000,000
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TABLE OF CONTENTS
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SECTION 1. Amountand Terms of Credit.............................................................................1
1.01 The Commitments.............................................................................1
1.02 Minimum Amount of Each Borrowing; Limitation on Number of Borrowings........................3
1.03 Notice of Borrowing.........................................................................4
1.04 Disbursement of Funds.......................................................................5
1.05 Notes.......................................................................................5
1.06 Conversions.................................................................................7
1.07 Pro Rata Borrowings.........................................................................7
1.08 Interest....................................................................................8
1.09 Interest Periods............................................................................8
1.10 Increased Costs, Illegality, etc............................................................9
1.11 Compensation...............................................................................12
1.12 Change of Lending Office...................................................................12
1.13 Replacement of Banks.......................................................................12
SECTION 2. Letters of Credit....................................................................................14
2.01 Letters of Credit..........................................................................14
2.02 Letter of Credit Requests..................................................................15
2.03 Letter of Credit Participations............................................................16
2.04 Agreement to Repay Letter of Credit Drawings...............................................17
2.05 Increased Costs............................................................................18
SECTION 3. Commitment Commission; Fees; Reductions of Commitment................................................19
3.01 Fees.......................................................................................19
3.02 Voluntary Termination of Unutilized Commitments............................................20
3.03 Mandatory Reduction of Commitments.........................................................21
SECTION 4. Prepayments; Payments; Taxes.........................................................................21
4.01 Voluntary Prepayments......................................................................21
4.02 Mandatory Repayments and Commitment Reductions.............................................22
4.03 Method and Place of Payment................................................................28
4.04 Net Payments; Taxes........................................................................28
SECTION 5. Conditions Precedent to Loans........................................................................30
5.01 Execution of Agreement; Notes..............................................................30
5.02 Fees, etc..................................................................................30
5.03 Opinions of Counsel........................................................................30
(i)
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5.04 Corporate Documents; Proceedings; etc......................................................31
5.05 Employee Benefit Plans; Shareholders'Agreements; Management Agreements; Debt
Agreements; Acquisition Documents; Tax Sharing Agreements..................................31
5.06 Financings; etc............................................................................32
5.07 Acquisition; etc...........................................................................32
5.08 Indebtedness...............................................................................33
5.09 Subsidiaries Guaranty......................................................................33
5.10 Pledge Agreement..........................................................................33
5.11 Security Agreement.........................................................................33
5.12 Mortgages; Title Insurance; Surveys; etc...................................................34
5.13 Consent Letter.............................................................................35
5.14 Adverse Change, etc........................................................................35
5.15 Litigation.................................................................................35
5.16 Solvency Opinion; Environmental Analyses; Insurance........................................35
5.17 Pro Forma Balance Sheet; Financial Statements; Projections.................................36
SECTION 6. Conditions Precedent to All Credit Events............................................................36
6.01 No Default; Representations and Warranties.................................................36
6.02 Notice of Borrowing; Letter of Credit Request..............................................36
SECTION 7. Representations, Warranties and Agreements...........................................................36
7.01 Corporate Status...........................................................................37
7.02 Corporate Power and Authority..............................................................37
7.03 No Violation...............................................................................37
7.04 Governmental Approvals.....................................................................38
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc.......38
7.06 Litigation.................................................................................39
7.07 True and Complete Disclosure...............................................................39
7.08 Use of Proceeds; Margin Regulations........................................................39
7.09 Tax Returns and Payments...................................................................40
7.10 Compliance with ERISA......................................................................40
7.11 The Security Documents.....................................................................41
7.12 Representations and Warranties in Documents................................................43
7.13 Properties.................................................................................43
7.14 Capitalization.............................................................................43
7.15 Subsidiaries...............................................................................44
7.16 Compliance with Statutes, etc..............................................................44
7.17 Investment Company Act.....................................................................44
7.18 Public Utility Holding Company Act.........................................................44
7.19 Environmental Matters......................................................................44
7.20 Labor Relations............................................................................45
7.21 Patents, Licenses, Franchises and Formulas.................................................45
7.22 Indebtedness...............................................................................45
(ii)
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7.23 Transaction................................................................................46
7.24 Special Purpose Corporations...............................................................46
7.25 Insurance..................................................................................46
7.26 Senior Subordinated Notes..................................................................46
7.27 Year 2000 Problem..........................................................................46
SECTION 8. Affirmative Covenants................................................................................46
8.01 Information Covenants......................................................................46
8.02 Books, Records and Inspections.............................................................50
8.03 Maintenance of Property; Insurance.........................................................50
8.04 Corporate Franchises.......................................................................51
8.05 Compliance with Statutes, etc..............................................................51
8.06 Compliance with Environmental Laws.........................................................51
8.07 ERISA......................................................................................52
8.08 End of Fiscal Years; Fiscal Quarters.......................................................53
8.09 Performance of Obligations.................................................................53
8.10 Payment of Taxes...........................................................................53
8.11 Ownership of Subsidiaries..................................................................53
8.12 Additional Security; Further Assurances; Surveys...........................................54
8.13 Interest Rate Protection...................................................................56
8.14 Foreign Subsidiaries Security..............................................................56
8.15 Maintenance of Corporate Separateness......................................................56
8.16 Year 2000 Compatibility....................................................................57
SECTION 9. Negative Covenants...................................................................................57
9.01 Liens......................................................................................57
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.....................................59
9.03 Dividends..................................................................................60
9.04 Indebtedness...............................................................................61
9.05 Advances, Investments and Loans............................................................62
9.06 Transactions with Affiliates...............................................................64
9.07 Capital Expenditures.......................................................................64
9.08 Consolidated Interest Coverage Ratio.......................................................64
9.09 Maximum Leverage Ratio.....................................................................65
9.10 Minimum EBITDA.............................................................................65
9.11 Limitation on Modifications of Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements; etc...................................66
9.12 Limitation on Certain Restrictions on Subsidiaries.........................................66
9.13 Limitation on Issuance of Capital Stock....................................................67
9.14 Limitation on Creation of Subsidiaries.....................................................67
9.15 Business...................................................................................67
9.16 Designated Senior Indebtedness.............................................................68
(iii)
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SECTION 10. Events of Default...................................................................................68
10.01 Payments...................................................................................68
10.02 Representations, etc.......................................................................68
10.03 Covenants..................................................................................68
10.04 Default Under Other Agreements.............................................................68
10.05 Bankruptcy, etc............................................................................69
10.06 ERISA......................................................................................69
10.07 Security Documents.........................................................................70
10.08 Guaranty...................................................................................70
10.09 Judgments..................................................................................70
10.10 Change of Control..........................................................................70
SECTION 11. Definitions and Accounting Terms....................................................................71
11.01 Defined Terms..............................................................................71
SECTION 12. The Agent...........................................................................................95
12.01 Appointment................................................................................95
12.02 Nature of Duties...........................................................................95
12.03 Lack of Reliance on the Administrative Agent...............................................95
12.04 Certain Rights of the Agent................................................................96
12.05 Reliance...................................................................................96
12.06 Indemnification............................................................................96
12.07 The Administrative Agent in its Individual Capacity........................................96
12.08 Holders....................................................................................97
12.09 Resignation by the Administrative Agent....................................................97
SECTION 13. Miscellaneous.......................................................................................97
13.01 Payment of Expenses, etc...................................................................97
13.02 Right of Setoff............................................................................98
13.03 Notices....................................................................................99
13.04 Benefit of Agreement.......................................................................99
13.05 No Waiver; Remedies Cumulative............................................................101
13.06 Payments Pro Rata.........................................................................101
13.07 Calculations; Computations................................................................102
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL....................102
13.09 Counterparts..............................................................................103
13.10 Effectiveness.............................................................................104
13.11 Headings Descriptive......................................................................104
13.12 Amendment or Waiver; etc..................................................................104
13.13 Survival..................................................................................106
13.14 Domicile of Loans.........................................................................106
13.15 Limitation on Additional Amounts, Etc.....................................................106
13.16 Confidentiality...........................................................................106
(iv)
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13.17 Register..................................................................................107
SECTION 14. Parent Guaranty....................................................................................108
14.01 The Parent Guaranty.......................................................................108
14.02 Bankruptcy................................................................................108
14.03 Nature of Liability.......................................................................108
14.04 Independent Obligation....................................................................109
14.05 Authorization.............................................................................109
14.06 Reliance..................................................................................110
14.07 Subordination.............................................................................110
14.08 Waiver....................................................................................110
14.09 Maximum Liability.........................................................................111
SCHEDULE I - COMMITMENTS
SCHEDULE II - BANK ADDRESSES
SCHEDULE III - REAL PROPERTY
SCHEDULE IV - EXISTING LIENS
SCHEDULE V - EXISTING INDEBTEDNESS
SCHEDULE VI - INSURANCE
SCHEDULE VII - ERISA
SCHEDULE VIII - SUBSIDIARIES
SCHEDULE IX - LABOR RELATIONS
SCHEDULE X - PROJECTIONS
SCHEDULE XI - CONVERTIBLE SECURITIES
SCHEDULE XII - ORGANIZATIONAL CHART
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Term Note
EXHIBIT B-2 Tranche A Term Note
EXHIBIT B-3 Tranche B Term Note
EXHIBIT B-4 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E Opinion of King & Spalding
EXHIBIT F Officer's Certificate
EXHIBIT G Subsidiaries Guaranty
EXHIBIT H Pledge Agreement
EXHIBIT I Security Agreement
EXHIBIT J Consent Letter
EXHIBIT K Solvency Letter
EXHIBIT L Assignment and Assumption Agreement
EXHIBIT M Subordination Provisions
(v)
CREDIT AGREEMENT, dated as of July 9, 1998, among Generac
Portable Products, a Delaware corporation ("Holdings"), GPPW, Inc., a Wisconsin
corporation ("WisCorp" and together with Holdings, the "Parent Guarantors"),
Generac Portable Products LLC, a Delaware limited liability company (the
"Borrower"), the Banks party hereto from time to time and BANKERS TRUST COMPANY,
as Administrative Agent (in such capacity, the "Administrative Agent") (all
capitalized terms used herein and defined in Section 11 are used herein as
therein defined).
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Banks are willing to make available to the Borrower the
respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 THE COMMITMENTS. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with a Tranche A Term Loan Commitment
severally agrees to make, on the Initial Borrowing Date, a term loan (each, a
"Tranche A Term Loan" and, collectively, the "Tranche A Term Loans") to the
Borrower, which Tranche A Term Loans (i) shall be made and initially maintained
as a single Borrowing of Base Rate Loans (subject to the option to convert such
Tranche A Term Loans pursuant to Section 1.06) and (ii) shall be made by each
Bank in that initial aggregate principal amount as is equal to the Tranche A
Term Loan Commitment of such Bank on such date (before giving effect to any
reductions thereto on such date pursuant to Section 3.03(b)(i) but after giving
effect to any reductions thereto on or prior to such date pursuant to Section
3.03(b)(ii)). Once repaid, Tranche A Term Loans incurred hereunder may not be
reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Bank with a Tranche B Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan (each, a "Tranche B Term Loan"
and, collectively, the "Tranche B Term Loans") to the Borrower, which Tranche B
Term Loans (i) shall be made and initially maintained as a single Borrowing of
Base Rate Loans (subject to the option to convert such Tranche B Term Loans
pursuant to Section 1.06) and (ii) shall be made by each Bank in that initial
aggregate principal amount as is equal to the Tranche B Term Loan Commitment of
such Bank on such date (before giving effect to any reductions thereto on such
date pursuant to Section 3.03(c)(i) but after giving effect to any reductions
thereto on or prior to such date pursuant to Section 3.03(c)(ii)). Once repaid,
Tranche B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth
herein, each Bank with a Revolving Loan Commitment severally agrees, at any time
and from time to time after the Initial Borrowing Date and prior to the
Revolving Loan Maturity Date, to make a revolving loan or revolving loans (each,
a "Revolving Loan" and, collectively, the "Revolving Loans") to the
Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be
Base Rate Loans or Eurodollar Loans, PROVIDED that (A) except as otherwise
specifically provided in Section 1.10(b), all Revolving Loans comprising the
same Borrowing shall at all times be of the same Type and (B) no Revolving Loans
maintained as Eurodollar Loans may be incurred prior to the earlier of (1) the
5th day after the Initial Borrowing Date and (2) the Syndication Date, (ii) may
be repaid and reborrowed in accordance with the provisions hereof, (iii) shall
not exceed for any Bank at any time outstanding that aggregate principal amount
which, when added to the product of (x) such Bank's Adjusted Percentage and (y)
the sum of (I) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) at such time and (II) the aggregate principal amount of all Swingline
Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at
such time and (iv) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to (w) the amount of all Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time, (x) the aggregate principal amount
of all Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, (y) the principal amount of
Indebtedness outstanding pursuant to Section 9.04 (xi) and (z) the Foreign Loan
Amount at such time, equals the Total Revolving Loan Commitment at such time.
(d) Subject to and upon the terms and conditions herein set
forth, the Swingline Bank in its individual capacity agrees to make at any time
and from time to time on and after the Initial Borrowing Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each, a "Swingline
Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline
Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
in aggregate principal amount at any time outstanding, when added to (w) the
aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks
then outstanding, (x) the Letter of Credit Outstandings at such time, (y) the
Foreign Loan Amount at such time and (z) the principal amount of Indebtedness
outstanding pursuant to Section 9.04 (xi), an amount equal to the Adjusted Total
Revolving Loan Commitment at such time (after giving effect to any reductions to
the Adjusted Total Revolving Loan Commitment on such date), (iv) shall not
exceed at any time outstanding the Maximum Swingline Amount and (v) shall not be
extended if the Swingline Bank receives a written notice from the Administrative
Agent or the Required Banks that has not been rescinded that there is a Default
or an Event of Default in existence hereunder.
(e) On any Business Day, the Swingline Bank may, in its sole
discretion, give notice to the other Banks that its outstanding Swingline Loans
shall be funded with a Borrowing of Revolving Loans (provided that such notice
shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 10.05 or upon the exercise of any
of the remedies provided in the last paragraph of Section 10), in which case a
Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing,
a "Mandatory Borrowing") shall be made on the immediately succeeding Business
Day by all Banks with a Revolving
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Loan Commitment (without giving effect to any reductions thereto pursuant to the
last paragraph of Section 10) pro RATA based on each Bank's Adjusted Percentage
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10) and the proceeds
thereof shall be paid directly to the Swingline Bank to repay the Swingline Bank
for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees
to make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by the Swingline Bank
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the minimum amount for Borrowings otherwise required hereunder, (ii)
whether any conditions specified in Section 6 are then satisfied, (iii) whether
a Default or an Event of Default then exists, (iv) the date of such Mandatory
Borrowing and (v) the amount of the Total Revolving Loan Commitment or the
Adjusted Total Revolving Loan Commitment at such time. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower), then each
such Bank hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase)
from the Swingline Bank such participations in the outstanding Swingline Loans
as shall be necessary to cause such Banks to share in such Swingline Loans
ratably based upon their respective Adjusted Percentages (determined before
giving effect to any termination of the Revolving Loan Commitments pursuant to
the last paragraph of Section 10), PROVIDED that (x) all interest payable on the
Swingline Loans shall be for the account of the Swingline Bank until the date as
of which the respective participation is required to be purchased and, to the
extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Bank
shall be required to pay the Swingline Bank interest on the principal amount of
participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the overnight Federal Funds Rate for the
first three days and at the rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans hereunder for each day thereafter.
1.02 MINIMUM AMOUNT OF EACH BORROWING; LIMITATION ON NUMBER OF
BORROWINGS. (a) The aggregate principal amount of each Borrowing of any Tranche
of Term Loans shall not be less than $1,000,000. The aggregate principal amount
of each Borrowing of Revolving Loans shall be not less than (x) in the case of a
Borrowing of Eurodollar Loans, $1,000,000 and (y) in the case of a Borrowing of
Base Rate Loans, $500,000, PROVIDED that Mandatory Borrowings shall be made in
the amounts required by Section 1.01(e). The aggregate principal amount of each
Borrowing of Swingline Loans shall not be less than $100,000 and, if greater,
shall be in an integral multiple of $100,000.
(b) More than one Borrowing may occur on the same date, but at
no time shall there be outstanding more than (x) if at any time prior to the
earlier of (i) the 65th day following the Initial Borrowing Date and (ii) the
Syndication Date, one Borrowing of Eurodollar Loans under each Tranche each of
which shall have an Interest Period of one month and shall begin and end on the
same day that the Interest Periods applicable to Eurodollar Loans under the
other
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Tranches begin and end and (y) if at any time thereafter, ten Borrowings of
Eurodollar Loans in the aggregate under all Tranches.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to
make Borrowing hereunder (excluding Borrowings of Swingline Loans and Mandatory
Borrowings), it shall give the Administrative Agent at its Notice Office at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Base Rate Loan and at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in writing) of
each Eurodollar Loan to be made hereunder, PROVIDED that any such notice shall
be deemed to have been given on a certain day only if given before 11:00 A.M.
(New York time). Each such written notice or written confirmation of telephonic
notice (each a "Notice of Borrowing"), except as otherwise expressly provided in
Section 1.10, shall be irrevocable and shall be given by the Borrower in the
form of Exhibit A, appropriately completed to specify the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day), whether the Loans being made pursuant
to such Borrowing shall constitute Tranche A Term Loans, Tranche B Term Loans or
Revolving Loans and whether the Loans being made pursuant to such Borrowing are
to be initially maintained as Base Rate Loans or Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Bank which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing, notice of
such proposed Borrowing, of such Bank's proportionate share thereof and of the
other matters required by the immediately preceding sentence to be specified in
the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give the Swingline Bank not later than 12:00
Noon (New York time) on the date that a Swingline Loan is to be made, written
notice or telephonic notice promptly confirmed in writing of each Swingline Loan
to be made hereunder. Each such notice shall be irrevocable and specify in each
case (A) the date of Borrowing (which shall be a Business Day) and (B) the
aggregate principal amount of the Swingline Loans to be made pursuant to such
Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(e), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as
set forth in Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice of any Borrowing of Loans, the
Administrative Agent or the Swingline Bank, as the case may be, may act without
liability upon the basis of telephonic notice of such Borrowing, believed by the
Administrative Agent or the Swingline Bank, as the case may be, in good faith to
be from the Chairman of the Board, the President, the Treasurer, any Assistant
Treasurer or any Controller of the Borrower (or any other officer of the
Borrower designated in writing to the Administrative Agent and the Swingline
Bank by the Chairman of the Board, the President or the Treasurer as being
authorized to give such notices under this Agreement) prior to receipt of
written confirmation. In each such case, the Borrower hereby waives the right to
dispute the Administrative Agent's and the Swingline Bank's record of the terms
of such telephonic notice of such Borrowing of Loans, absent manifest error.
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1.04 DISBURSEMENT OF FUNDS. Except as otherwise specifically
provided in the immediately succeeding sentence, no later than 12:00 Noon (New
York time) on the date specified in each Notice of Borrowing (or (x) in the case
of Swingline Loans, not later than 2:00 P.M. (New York time) on the date
specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, not later than 12:00 Noon (New York time) on the date specified in
Section 1.01(e)), each Bank with a Commitment of the respective Tranche will
make available its PRO RATA portion of each such Borrowing requested to be made
on such date (or in the case of Swingline Loans, the Swingline Bank shall make
available the full amount thereof). All such amounts shall be made available in
Dollars and in immediately available funds at the Payment Office of the
Administrative Agent, and, except in the case of Mandatory Borrowings, the
Administrative Agent will make available to the Borrower at the Payment Office
the aggregate of the amounts so made available by the Banks (for Loans other
than Swingline Loans, prior to 1:00 P.M. (New York time) on such day, to the
extent of funds actually received by the Administrative Agent prior to 12:00
Noon (New York time) on such day). Unless the Administrative Agent shall have
been notified by any Bank prior to the date of Borrowing that such Bank does not
intend to make available to the Administrative Agent such Bank's portion of any
Borrowing to be made on such date, the Administrative Agent may assume that such
Bank has made such amount available to the Administrative Agent on such date of
Borrowing and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Bank,
the Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover on demand from such Bank or the Borrower, as
the case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Administrative
Agent to the Borrower until the date such corresponding amount is recovered by
the Administrative Agent, at a rate per annum equal to (i) if recovered from
such Bank, at the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result of
any failure by such Bank to make Loans hereunder.
1.05 NOTES. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Bank shall be evidenced (i) if
Tranche A Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-1 with blanks appropriately
completed in conformity herewith (each, a "Tranche A Term Note" and,
collectively, the "Tranche A Term Notes"), (ii) if Tranche B Term Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B-2 with blanks appropriately completed in conformity herewith
(each, a "Tranche B Term Note" and, collectively, the "Tranche B Term Notes"),
(iii) if Revolving Loans, by a promissory note duly executed and delivered by
the Borrower substantially in the form of Exhibit B-3, with blanks appropriately
completed in conformity herewith (each, a "Revolving Note" and, collectively,
the
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"Revolving Notes") and (iv) if Swingline Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-4,
with blanks appropriately completed in conformity herewith (the "Swingline
Note").
(b) The Tranche A Term Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or, in the case of Tranche A Term Notes issued after
the Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be
in a stated principal amount equal to the Tranche A Term Loan made by such Bank
on the Initial Borrowing Date (or, in the case of Tranche A Term Notes issued
after the Initial Borrowing Date, be in a stated principal amount equal to the
outstanding principal amount of the Tranche A Term Loan of such Bank on the date
of the issuance thereof) and be payable in the principal amount of Tranche A
Term Loans evidenced thereby, (iv) mature on the Tranche A Term Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(c) The Tranche B Term Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or, in the case of Tranche B Term Notes issued after
the Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be
in a stated principal amount equal to the Tranche B Term Loan made by such Bank
on the Initial Borrowing Date (or, in the case of Tranche B Term Notes issued
after the Initial Borrowing Date, be in a stated principal amount equal to the
outstanding principal amount of the Tranche B Term Loan of such Bank on the date
of the issuance thereof) and be payable in the principal amount of Tranche B
Term Loans evidenced thereby, (iv) mature on the Tranche B Term Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(d) The Revolving Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date (or, in the case of Revolving Notes issued after the
Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be in
a stated principal amount equal to the Revolving Loan Commitment of such Bank
and be payable in the principal amount of the Revolving Loans evidenced thereby,
(iv) mature on the Revolving Loan Maturity Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment and mandatory repayment as provided in Sections 4.01 and
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(e) The Swingline Note issued to the Swingline Bank shall (i)
be executed by the Borrower, (ii) be payable to the order of the Swingline Bank
and be dated the Initial Borrowing Date (or, in the case of any Swingline Note
issued after the Initial Borrowing Date, be
-6-
dated the date of the issuance thereof), (iii) be in a stated principal amount
equal to the Maximum Swingline Amount and be payable in the principal amount of
the outstanding Swingline Loans evidenced thereby, (iv) mature on the Swingline
Expiry Date, (v) bear interest as provided in the appropriate clause of Section
1.08 in respect of the Base Rate Loans evidenced thereby and (vi) be entitled to
the benefits of this Agreement and the other Credit Documents.
(f) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation or endorsement shall not affect the Borrower's
obligations in respect of such Loans.
1.06 CONVERSIONS. The Borrower shall have the option to
convert, on any Business Day occurring on or after the earlier of (1) the 5th
day after the Initial Borrowing Date and (2) the Syndication Date, all or a
portion equal to at least (x) in the case of a conversion of Term Loans,
$1,000,000 and (y) in the case of a conversion of Revolving Loans, $1,000,000
(or $500,000 if in the case of a conversion into Base Rate Loans), of the
outstanding principal amount of Loans made pursuant to one or more Borrowings
(so long as of the same Tranche) of one or more Types of Loans into a Borrowing
(of the same Tranche) of another Type of Loan, PROVIDED that (i) no Eurodollar
Loans may be converted into Base Rate Loans on a day which is not the last day
of an Interest Period applicable to the Loans being converted, (ii) no partial
conversion of Eurodollar Loans shall reduce the outstanding principal amount of
such Eurodollar Loans made pursuant to a single Borrowing to less than
$1,000,000, (iii) unless the Required Banks otherwise specifically agree in
writing, Base Rate Loans may only be converted into Eurodollar Loans if no
Default or Event of Default is in existence on the date of the conversion, (iv)
no conversion pursuant to this Section 1.06 shall result in a greater number of
Eurodollar Borrowings than is permitted under Section 1.02 and (v) Swingline
Loans may not be converted pursuant to this Section 1.06. Each such conversion
shall be effected by the Borrower by giving the Administrative Agent at its
Notice Office prior to 12:00 Noon (New York time) at least (x) in the case of a
conversion to Eurodollar Loans, three Business Days' prior notice and (y) in the
case of a conversion to Base Rate Loans, one Business Day's prior notice (each a
"Notice of Conversion") specifying the Loans to be so converted, the
Borrowing(s) pursuant to which such Loans were made and, if to be converted into
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 PRO RATA BORROWINGS. All Borrowings of Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans under this Agreement shall be
incurred from the Banks PRO RATA on the basis of their Tranche A Term Loan
Commitments, Tranche B Term Loan Commitments or Revolving Loan Commitments, as
the case may be, provided that all Borrowings of Revolving Loans made pursuant
to a Mandatory Borrowing shall be incurred from the Banks PRO RATA on the basis
of their Adjusted Percentages. It is understood that no Bank shall be
responsible for any default by any other Bank of its obligation to make Loans
hereunder and that each Bank shall be obligated to make the Loans provided to be
made by it hereunder, regardless of the failure of any other Bank to make its
Loans hereunder.
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1.08 INTEREST. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Borrower until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Base Rate Loan and (ii)
the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section
1.06, at a rate per annum which shall be equal to the sum of the Applicable
Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Eurodollar Loan and (ii) the
conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06
or 1.09, as applicable, at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the Applicable Margin plus the
Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
greater of (x) 2% per annum in excess of the rate otherwise applicable to Base
Rate Loans of the respective Tranche of Loans from time to time (or, if such
overdue amount is not interest or principal in respect of a Loan, 2% per annum
in excess of the rate otherwise applicable to Base Rate Loans which are
Revolving Loans from time to time) and (y) the rate which is 2% in excess of the
rate then borne by such Loans, in each case with such interest to be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 INTEREST PERIODS. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two, three or six month period, PROVIDED that:
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(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Loan of a different Type) and
each Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the next preceding Interest
Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; PROVIDED, HOWEVER, that if any Interest
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(v) unless the Required Banks otherwise specifically agree in
writing, no Interest Period may be selected at any time when a Default
or Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the respective
Maturity Date for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of Tranche A
Term Loans or Tranche B Term Loans, as the case may be, shall be
selected which extends beyond any date upon which a mandatory repayment
of such Tranche of Term Loans will be required to be made under Section
4.02(b) or (c), as the case may be, if the aggregate principal amount
of Tranche A Term Loans or Tranche B Term Loans, as the case may be,
which have Interest Periods which will expire after such date will be
in excess of the aggregate principal amount of Tranche A Term Loans or
Tranche B Term Loans, as the case may be, then outstanding less the
aggregate amount of such required prepayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that
any Bank shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Administrative Agent):
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(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or
in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to any Bank of the principal
of or interest on such Eurodollar Loan or any other amounts payable
hereunder (except for changes in the rate of tax on, or determined by
reference to, the net income or profits of such Bank, or any franchise
tax based on the net income or profits of such Bank, in either case
pursuant to the laws of the United States of America, the jurisdiction
in which it is organized or in which its principal office or applicable
lending office is located or any subdivision thereof or therein), but
without duplication of any amounts payable in respect of Taxes pursuant
to Section 4.04(a), or (B) a change in official reserve requirements
and/or (y) other circumstances since the date of this Agreement
affecting such Bank or the interbank Eurodollar market or the position
of such Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, and/or (y) impossible by compliance by any
Bank in good faith with any governmental request (whether or not having
force of law) or (z) impracticable as a result of a contingency
occurring after the date of this Agreement which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower shall, subject to the provisions
of Section 13.15 (to the extent applicable) pay to such Bank, upon written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Bank in its
reasonable discretion shall determine) as shall be required to compensate such
Bank for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Bank,
showing in reasonable detail the basis for and the calculation thereof,
submitted to the Borrower by such Bank in good faith shall, absent manifest
error, be final and conclusive and binding on all the parties hereto) and (z) in
the case of
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clause (iii) above, the Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law. Each of the Administrative Agent and each Bank agrees
that if it gives notice to the Borrower of any of the events described in clause
(i) or (iii) above, it shall promptly notify the Borrower and, in the case of
any such Bank, the Administrative Agent, if such event ceases to exist. If any
such event described in clause (iii) above ceases to exist as to a Bank, the
obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans
into Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Bank or
the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least one Business Day's
written notice to the Administrative Agent, require the affected Bank to convert
such Eurodollar Loan into a Base Rate Loan, PROVIDED that, if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) In the event that any Bank shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto) at any time that by reason of Regulation D such Bank is
required to maintain reserves in respect of eurodollar loans or liabilities
during any period it has a Eurodollar Loan outstanding, then such Bank shall
promptly notify the Administrative Agent and the Borrower by telephone confirmed
in writing specifying the additional amounts required to indemnify such Bank
against the cost of maintaining such reserves in respect of such Eurodollar
Loans (such written notice to provide in sufficient detail a computation of such
additional amounts) and the Borrower shall directly pay to such Bank such
specified amounts as additional interest at the time that it is otherwise
required to pay interest in respect of such Eurodollar Loan or, if later, on
demand.
(d) If at any time after the date of this Agreement any Bank
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, in each case introduced or changed after the date
hereof, will have the effect of increasing the amount of capital required or
requested to be maintained by such Bank or any corporation controlling such Bank
based on the existence of such Bank's Commitments hereunder or its obligations
hereunder, then the Borrower shall, subject to the provisions of Section 13.15
(to the extent applicable), pay to such Bank, upon its written demand therefor,
such additional amounts as shall be required to compensate such Bank or such
other corporation for the increased cost to such Bank or such other corporation
or the reduction in the rate of return to such Bank or such other corporation as
a result of such increase of capital. In determining such additional amounts,
each Bank will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, PROVIDED that such Bank's
determination of compensa-
-11-
tion owing under this Section 1.10(d) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Bank, upon determining
that any additional amounts will be payable pursuant to this Section 1.10(d),
will give prompt written notice thereof to the Borrower, which notice shall show
in reasonable detail the basis for and calculation of such additional amounts.
1.11 COMPENSATION. The Borrower shall, subject to the
provisions of Section 13.15 (to the extent applicable), compensate each Bank,
upon its written request (which request shall set forth in reasonable detail the
basis for requesting and the calculation of such compensation), for all
reasonable losses, expenses and liabilities (including, without limitation, any
loss, expense or liability incurred by reason of the liquidation or reemployment
of deposits or other funds required by such Bank to fund its Eurodollar Loans
but excluding any loss of anticipated profit) which such Bank may sustain: (i)
if for any reason (other than a default by such Bank or the Administrative
Agent) a Borrowing of, or conversion from or into, Eurodollar Loans does not
occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn by the Borrower or deemed withdrawn
pursuant to Section 1.10(a)); (ii) if any repayment (including any repayment
made pursuant to Section 4.02 or a result of an acceleration of the Loans
pursuant to Section 10) or conversion of any of its Eurodollar Loans occurs on a
date which is not the last day of an Interest Period with respect thereto; (iii)
if any prepayment of any of its Eurodollar Loans is not made on any date
specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Loans when
required by the terms of this Agreement or any Note held by such Bank or (y) any
election made pursuant to Section 1.10(b).
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such Bank,
it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans or Letters of Credit affected by such event, PROVIDED that such
designation is made on such terms that such Bank and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Bank provided in Sections 1.10, 2.05 and 4.04.
1.13 REPLACEMENT OF BANKS. (x) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (y) upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 1.10(d),
Section 2.05 or Section 4.04 with respect to any Bank which results in such Bank
charging to the Borrower increased costs in excess of those being generally
charged by the other Banks, or (z) as provided in Section 13.12(b) in the case
of certain refusals by a Bank to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Banks, the Borrower shall have the right, if no Default
or Event of Default will exist immediately after giving effect to the respective
replacement, to either replace such Bank (the "Replaced Bank") with one or more
other Eligible Transferee or Transferees, none of whom shall constitute a
Defaulting Bank at the time of such replacement (collectively, the "Replacement
Bank") reasonably acceptable to the Administrative
-12-
Agent or, at the option of the Borrower, to replace only (a) the Revolving Loan
Commitment (and outstandings pursuant thereto) of the Replaced Bank with an
identical Revolving Loan Commitment provided by the Replacement Bank or (b) in
the case of a replacement as provided in Section 13.12(b) where the consent of
the respective Bank is required with respect to less than all Tranches of its
Loans or Commitments, the Commitments and/or outstanding Term Loans of such Bank
in respect of each Tranche where the consent of such Bank would otherwise be
individually required, with identical Commitments and/or Loans of the respective
Tranche provided by the Replacement Bank, PROVIDED that (i) at the time of any
replacement pursuant to this Section 1.13, the Replacement Bank shall enter into
one or more Assignment and Assumption Agreements pursuant to Section 13.04(b)
(and with all fees payable pursuant to said Section 13.04(b) to be paid by the
Replacement Bank) pursuant to which the Replacement Bank shall acquire all of
the Commitments and outstanding Loans (or, in the case of the replacement of
only (a) the Revolving Loan Commitment, the Revolving Loan Commitment and
outstanding Revolving Loans or (b) the outstanding Term Loans of one or more
Tranches, the outstanding Term Loans of the respective Tranche or Tranches) of,
and in each case (except for the replacement of only the outstanding Term Loans
of one or more Tranches of the respective Bank) participations in Letters of
Credit by, the Replaced Bank and, in connection therewith, shall pay to (x) the
Replaced Bank in respect thereof an amount equal to the sum (without
duplication) of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans (or, in the case of the replacement of only
(I) the Revolving Loan Commitment, the outstanding Revolving Loans or (II) the
Term Loans of one or more Tranches, the outstanding Term Loans of such Tranche
or Tranches) of the Replaced Bank, (B) except in the case of the replacement of
only the outstanding Term Loans of one or more Tranches of a Replaced Bank, an
amount equal to all Unpaid Drawings that have been funded by (and not reimbursed
to) such Replaced Bank, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Bank (but only with respect to the relevant
Tranche, in the case of the replacement of less than all Tranches of Loans then
held by the respective Replaced Bank) pursuant to Section 3.01 and (y) except in
the case of the replacement of only the outstanding Term Loans of one or more
Tranches of a Replaced Bank, the respective Issuing Bank an amount equal to such
Replaced Bank's Adjusted Percentage (for this purpose, determined as if the
adjustment described in clause (y) of the immediately succeeding sentence had
been made with respect to such Replaced Bank) of any Unpaid Drawing (which at
such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank, and (ii) all obligations of the
Borrower owing to the Replaced Bank (other than those (a) specifically described
in clause (i) above in respect of which the assignment purchase price has been,
or is concurrently being, paid or (b) relating to any Tranche of Loans and/or
Commitments of the respective Replaced Bank which will remain outstanding after
giving effect to the respective replacement) shall be paid in full to such
Replaced Bank concurrently with such replacement. Upon the execution of the
respective Assignment and Assumption Agreements, the payment of amounts referred
to in clauses (i) and (ii) above and, if so requested by the Replacement Bank,
delivery to the Replacement Bank of the appropriate Note or Notes executed by
the Borrower, (x) the Replacement Bank shall become a Bank hereunder and, unless
the respective Replaced Bank continues to have outstanding Term Loans or a
Revolving Loan Commitment hereunder, the Replaced Bank shall cease to constitute
a Bank hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
-13-
4.04, 13.01 and 13.06), which shall survive as to such Replaced Bank and (y) in
the case of a replacement of a Defaulting Bank with a Non-Defaulting Bank, the
Adjusted Percentages of the Banks shall be automatically adjusted at such time
to give effect to such replacement (and to give effect to the replacement of a
Defaulting Bank with one or more Non- Defaulting Banks).
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that any Issuing Bank
issue, at any time and from time to time on and after the Initial Borrowing Date
and prior to the date which is 30 days prior to the Revolving Loan Maturity
Date, (x) for the account of the Borrower and for the benefit of any holder (or
any trustee, agent or other similar representative for any such holders) of L/C
Supportable Indebtedness of the Borrower or any of its Subsidiaries, an
irrevocable sight standby letter of credit, in a form customarily used by such
Issuing Bank or in such other form as has been approved by such Issuing Bank
(each such standby letter of credit, a "Standby Letter of Credit") in support of
such L/C Supportable Indebtedness and (y) for the account of the Borrower and
for the benefit of sellers of goods or materials to the Borrower or any of its
Subsidiaries, an irrevocable sight commercial letter of credit in a form
customarily used by such Issuing Bank or in such other form as has been approved
by such Issuing Bank (each such commercial letter of credit, a "Trade Letter of
Credit", and each such Trade Letter of Credit and each Standby Letter of Credit,
a "Letter of Credit") in support of commercial transactions of the Borrower and
its Subsidiaries.
(b) Subject to the terms and conditions contained herein, the
Administrative Agent hereby agrees that it will (and at the Borrower's request
each other Issuing Bank may, at its option, agree that it will), at any time and
from time to time on or after the Initial Borrowing Date and prior to the date
which is 30 days prior to the Revolving Loan Maturity Date, following its
receipt of the respective Letter of Credit Request, issue for the account of the
Borrower one or more Letters of Credit (x) in the case of Standby Letters of
Credit, in support of such L/C Supportable Indebtedness of the Borrower or any
of its Subsidiaries as is permitted to remain outstanding without giving rise to
a Default or Event of Default hereunder and (y) in the case of Trade Letters of
Credit, in support of sellers of goods or materials as referenced in Section
2.01(a), PROVIDED that the respective Issuing Bank shall be under no obligation
to issue any Letter of Credit of the types described above if at the time of
such issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain such
Issuing Bank from issuing such Letter of Credit or any requirement of
law applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuing Bank shall prohibit, or
request that such Issuing Bank refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose
upon such Issuing Bank with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such Issuing
Bank is not otherwise compensated) not in effect on the date hereof, or
any unreimbursed loss, cost or expense which was not applicable, in
effect or known to such Issuing Bank as of the date hereof and which
such Issuing Bank in good xxxxx xxxxx material to it; or
-14-
(ii) such Issuing Bank shall have received notice from any Bank
prior to the issuance of such Letter of Credit of the type described in
the second sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $5,000,000 or (y) when added to (w) the aggregate principal
amount of all Revolving Loans made by Non-Defaulting Banks and then outstanding,
(x) the principal amount of all Swingline Loans then outstanding, (y) the
Foreign Loan Amount at such time and (z) the principal amount of Indebtedness
then outstanding pursuant to Section 9.04 (xi), an amount equal to the Adjusted
Total Revolving Loan Commitment at such time, (ii) each Letter of Credit shall
be denominated in Dollars, (iii) each Letter of Credit shall by its terms
terminate (x) in the case of Standby Letters of Credit, on or before the earlier
of (A) the date which occurs 12 months after the date of the issuance thereof
(although any such Standby Letter of Credit may be automatically extendible for
successive periods of up to 12 months, but not beyond the tenth Business Day
prior to the Revolving Loan Maturity Date, on terms acceptable to the Issuing
Bank thereof) and (B) the tenth Business Day prior to the Revolving Loan
Maturity Date, and (y) in the case of Trade Letters of Credit, on or before the
earlier of (A) the date which occurs 180 days after the date of issuance thereof
and (B) the date which is 30 days prior to the Revolving Loan Maturity Date and
(iv) the Stated Amount of each Letter of Credit upon issuance shall be not less
than $25,000 or such lesser amount as is acceptable to the respective Issuing
Bank.
2.02 LETTER OF CREDIT REQUESTS. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Bank at least three
Business Days' (or such shorter period as is acceptable to the respective
Issuing Bank) written notice thereof. Each notice shall be in the form of
Exhibit C (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the respective Issuing Bank has received notice from
any Bank before it issues a Letter of Credit that one or more of the conditions
specified in Section 5 or Section 6, as applicable, are not then satisfied, or
that the issuance of such Letter of Credit would violate Section 2.01(c), then
such Issuing Bank shall issue the requested Letter of Credit for the account of
the Borrower in accordance with such Issuing Bank's usual and customary
practices. Upon the issuance of or amendment to any Standby Letter of Credit,
such Issuing Bank shall promptly notify each Bank of such issuance or amendment
and such notice shall be accompanied by a copy of the issued Standby Letter of
Credit or amendment, as the case may be. For Trade Letters of Credit on which
the Issuing Bank is other than the Administrative Agent, the Issuing Bank will
send to the Administrative Agent by facsimile transmission, promptly on the
first Business Day of each week, the daily aggregate Stated Amount of Trade
Letters of Credit issued by such Issuing Bank and outstanding during the
preceding week. The Administrative Agent shall deliver to each Bank, after each
calendar month end and upon
-15-
each payment of the Letter of Credit Fee, a report setting forth for the
relevant period the daily aggregate Stated Amount of all outstanding Trade
Letters of Credit during such period.
2.03 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be
deemed to have sold and transferred to each Bank with a Revolving Loan
Commitment, other than such Issuing Bank (each such Bank, in its capacity under
this Section 2.03, a "Participant"), and each such Participant shall be deemed
irrevocably and unconditionally to have purchased and received from such Issuing
Bank, without recourse or warranty, an undivided interest and participation, to
the extent of such Participant's Adjusted Percentage, in such Letter of Credit,
each drawing made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty pertaining
thereto. Upon any change in the Revolving Loan Commitments or Adjusted
Percentages of the Banks pursuant to Section 1.13 or 13.04 or as a result of a
Bank Default, it is hereby agreed that, with respect to all outstanding Letters
of Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.03 to reflect the new Adjusted
Percentages of the assignor and assignee Bank or of all Banks with Revolving
Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
such Issuing Bank shall have no obligation relative to the other Banks other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Subject to
the provisions of the immediately preceding sentence, any action taken or
omitted to be taken by any Issuing Bank under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, as determined by a court of competent jurisdiction, shall not create
for such Issuing Bank any resulting liability to any Credit Party or any Bank.
(c) In the event that any Issuing Bank makes any payment under
any Letter of Credit and the Borrower shall not have reimbursed such amount in
full to such Issuing Bank pursuant to Section 2.04(a), such Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant, of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant shall
not have so made its Adjusted Percentage of the amount of such payment available
to such Issuing Bank, such Participant agrees to pay to such Issuing Bank,
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to such Issuing Bank at the
overnight Federal Funds Rate. The failure of any Participant to make available
to such Issuing Bank its Adjusted Percentage of any payment under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to such Issuing Bank its Adjusted Percentage of any Letter of
Credit on the date required, as specified above, but no
-16-
Participant shall be responsible for the failure of any other Participant to
make available to such Issuing Bank such other Participant's Adjusted Percentage
of any such payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall forward such
payment to the Administrative Agent, which in turn shall distribute to each
Participant which has paid its Adjusted Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations.
(e) Upon the request of any Participant, each Issuing Bank
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to
each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any transferee
of any Letter of Credit (or any Person for whom any such transferee may
be acting), the Administrative Agent, any Issuing Bank, any
Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction
between the Borrower and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment to the Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by it under any Letter of
Credit (each such amount, so paid until reimbursed, an "Unpaid Drawing"), no
later than three Business Days after the date of such payment or disbursement,
with interest on
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the amount so paid or disbursed by such Issuing Bank, to the extent not
reimbursed prior to 12:00 Noon (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding the
date such Issuing Bank was reimbursed by the Borrower therefor at a rate per
annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Revolving Loans maintained as Base Rate Loans, PROVIDED,
HOWEVER, to the extent such amounts are not reimbursed prior to 12:00 Noon (New
York time) on the fifth Business Day following receipt of notice of such payment
or disbursement, interest shall thereafter accrue on the amounts so paid or
disbursed by such Issuing Bank (and until reimbursed by the Borrower) at a rate
per annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Revolving Loans maintained as Base Rate Loans plus 2%, in
each such case, with interest to be payable on demand. The respective Issuing
Bank shall give the Borrower prompt notice of each Drawing under any Letter of
Credit, PROVIDED that the failure to give any such notice shall in no way
affect, impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Bank (including in its capacity as issuer of the Letter of
Credit or as Participant), or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing Bank's only
obligation to the Borrower being to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that
they appear to substantially comply on their face with the requirements of such
Letter of Credit. Subject to the provisions of the immediately preceding
sentence, any action taken or omitted to be taken by any Issuing Bank under or
in connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or willful misconduct as determined by a court of competent
jurisdiction, shall not create for such Issuing Bank any resulting liability to
the Borrower or any other Credit Party.
2.05 INCREASED COSTS. If at any time after the date of this
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant with any request or directive by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make applicable
any reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by any Issuing Bank or participated in by any Participant, or (ii)
impose on any Issuing Bank or any Participant any other conditions relating,
directly or indirectly, to this Agreement or any Letter of Credit; and the
result of any of the foregoing is to increase the cost to any Issuing Bank or
any Participant of issuing, maintaining or participating in any Letter of
Credit, or reduce the amount of any sum received or receivable by any Issuing
Bank or any Participant hereunder or reduce the rate of return on its capital
with respect to Letters of Credit (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Issuing Bank or
such Participant, or any franchise tax based on the net income or profits of
such Bank or Participant, in either case pursuant to the laws of the United
States of America, the jurisdiction in which it is organized or in which its
principal office or applicable lending office is located or any subdivision
thereof or therein), but without
-18-
duplication of any amounts payable in respect of Taxes pursuant to Section
4.04(a), then, upon demand to the Borrower by such Issuing Bank or any
Participant (a copy of which demand shall be sent by such Issuing Bank or such
Participant to the Administrative Agent) and subject to the provisions of
Section 13.15 (to the extent applicable), the Borrower shall pay to such Issuing
Bank or such Participant such additional amount or amounts as will compensate
such Bank for such increased cost or reduction in the amount receivable or
reduction on the rate of return on its capital. Any Issuing Bank or any
Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.05, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Issuing Bank or such Participant (a copy of which certificate shall be sent
by such Issuing Bank or such Participant to the Administrative Agent), setting
forth in reasonable detail the basis for and the calculation of such additional
amount or amounts necessary to compensate such Issuing Bank or such Participant.
The certificate required to be delivered pursuant to this Section 2.05 shall, if
delivered in good faith and absent manifest error, be final and conclusive and
binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 FEES. (a) The Borrower agrees to pay the Administrative
Agent for distribution to each Non-Defaulting Bank with a Revolving Loan
Commitment a commitment commission (the "Commitment Commission") for the period
from the Initial Borrowing to and including the Revolving Loan Maturity Date (or
such earlier date as the Total Revolving Loan Commitment shall have been
terminated), computed at a rate for each day equal to the Applicable Commitment
Commission Percentage per annum on the daily average Unutilized Revolving Loan
Commitment of such Non-Defaulting Bank. Accrued Commitment Commission shall be
due and payable quarterly in arrears on each Quarterly Payment Date and on the
Revolving Loan Maturity Date or such earlier date upon which the Total Revolving
Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment (based
on their respective Adjusted Percentages) a fee in respect of each Letter of
Credit issued hereunder (the "Letter of Credit Fee"), for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate per annum equal to the
Applicable Margin then in effect for Revolving Loans maintained as Eurodollar
Loans on the daily average Stated Amount of such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and upon the first day on or after the termination of the
Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.
(c) The Borrower agrees to pay to the respective Issuing Bank,
for its own account, a facing fee in respect of each Letter of Credit issued for
its account hereunder (the "Facing Fee") for the period from and including the
date of issuance of such Letter of Credit to and including the termination of
such Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the
daily average Stated Amount of such Letter of Credit; PROVIDED that in no event
shall the annual Facing Fee with respect to any Letter of Credit be less than
$250, it being agreed that, on the date of issuance of any Letter of Credit and
on each anniversary thereof prior to the
-19-
termination of such Letter of Credit, $250 will be paid toward the next year's
Facing Fees for such Letter of Credit, which amount shall be credited in direct
order to the Facing Fees which would otherwise be payable with respect to such
Letter of Credit in the succeeding annual period. Accrued Facing Fees shall be
due and payable quarterly in arrears on each Quarterly Payment Date and on the
date upon which the Total Revolving Loan Commitment has been terminated and such
Letter of Credit has been terminated in accordance with its terms.
(d) The Borrower shall pay, upon each payment under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge which the respective Issuing Bank is
generally imposing in connection with such occurrence with respect to letters of
credit.
(e) The Borrower shall pay to the Administrative Agent, for
its own account, such other fees as have been agreed to in writing by the
Borrower and the Administrative Agent.
3.02 VOLUNTARY TERMINATION OF UNUTILIZED COMMITMENTS. (a) Upon
at least one Business Day's prior notice to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly transmit to
each of the Banks), the Borrower shall have the right, at any time or from time
to time, without premium or penalty, to terminate the Total Unutilized Revolving
Loan Commitment, in whole or in part, in integral multiples of $1,000,000 in the
case of partial reductions to the Total Unutilized Revolving Loan Commitment,
PROVIDED that (i) each such reduction shall apply proportionately to permanently
reduce the Revolving Loan Commitment of each Bank with such a Commitment and
(ii) the reduction to the Total Unutilized Revolving Loan Commitment shall in no
case be in an amount which would cause the Revolving Loan Commitment of any Bank
to be reduced (as required by preceding clause (i)) by an amount which exceeds
the remainder of (x) the Unutilized Revolving Loan Commitment of such Bank as in
effect immediately before giving effect to such reduction minus (y) such Bank's
Adjusted Percentage of the aggregate principal amount of Swingline Loans then
outstanding.
(b) In the event of certain refusals by a Bank as provided in
Section 13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks, the Borrower may, subject to the requirements of said Section
13.12(b) and upon five Business Days' written notice to the Administrative Agent
at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), terminate all of the Revolving Loan Commitment
of such Bank so long as all Loans, together with accrued and unpaid interest,
fees and all other amounts, owing to such Bank (other than amounts owing in
respect of any Tranche of Term Loans maintained by such Bank, if such Term Loans
are not being repaid pursuant to Section 13.12(b)) are repaid concurrently with
the effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts), and at such time, unless the
respective Bank continues to have outstanding Term Loans hereunder, such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnification provisions under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which shall
survive as to such repaid Bank.
-20-
3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total
Commitments (and the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment and the Revolving Loan Commitment of each Bank) shall terminate in
its entirety on August 31, 1998 unless the Initial Borrowing Date shall have
occurred on or prior to such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche A Term Loan Commitment (and the
Tranche A Term Loan Commitment of each Bank) shall (i) terminate in its entirety
on the Initial Borrowing Date (after giving effect to the making of the Tranche
A Term Loans on such date) and (ii) prior to the termination of the Total
Tranche A Term Loan Commitment as provided in clause (i) above, be reduced from
time to time to the extent required by Section 4.02.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche B Term Loan Commitment (and the
Tranche B Term Loan Commitment of each Bank) shall (i) terminate in its entirety
on the Initial Borrowing Date (after giving effect to the making of the Tranche
B Term Loans on such date) and (ii) prior to the termination of the Total
Tranche B Term Loan Commitment as provided in clause (i) above, be reduced from
time to time to the extent required by Section 4.02.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate in its entirety on the
Revolving Loan Maturity Date.
(e) Each reduction to the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment and the Total Revolving
Loan Commitment pursuant to this Section 3.03 shall be applied proportionately
to reduce the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment
or the Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) the Borrower
shall give the Administrative Agent prior to 12:00 Noon (New York time) at its
Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Base
Rate Loans (or same day notice in the case of Swingline Loans provided such
notice is given prior to 12:00 Noon (New York time)) and (y) at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Eurodollar Loans, whether Tranche A Term Loans,
Tranche B Term Loans, Revolving Loans or Swingline Loans shall be prepaid, the
amount of such prepayment and the Types of Loans to be prepaid and, in the case
of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall promptly transmit to each of
the Banks; (ii) each prepayment shall be in an aggregate principal amount of at
least $1,000,000 (or $500,000 in the case of Swingline Loans) or such lesser
amount of a Borrowing which is outstanding, PROVIDED that if any partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding
-21-
Eurodollar Loans made pursuant to such Borrowing to an amount less than
$1,000,000, then such Borrowing may not be continued as a Borrowing of
Eurodollar Loans and any election of an Interest Period with respect thereto
given by the Borrower shall have no force or effect; (iii) at the time of any
prepayment of Eurodollar Loans pursuant to this Section 4.01 on any date other
than the last day of the Interest Period applicable thereto, the Borrower shall
pay the amounts required pursuant to Section 1.11; (iv) in the event of certain
refusals by a Bank as provided in Section 13.12(b) to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks, the Borrower may, upon
5 Business Days' written notice to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Banks) repay all Loans, together with accrued and unpaid interest, Fees, and
other amounts owing to such Bank (or owing to such Bank with respect to each
Tranche which gave rise to the need to obtain such Bank's individual consent) in
accordance with said Section 13.12(b) so long as (A) in the case of the
repayment of Revolving Loans of any Bank pursuant to this clause (iv) the
Revolving Loan Commitment of such Bank is terminated concurrently with such
repayment (at which time Schedule I shall be deemed modified to reflect the
changed Revolving Loan Commitments) and (B) the consents required by Section
13.12(b) in connection with the repayment pursuant to this clause (iv) have been
obtained; (v) except as expressly provided in the preceding clause (iv), each
voluntary prepayment of Term Loans pursuant to this Section 4.01 shall be
applied to the Tranche A Term Loans and the Tranche B Term Loans on a PRO RATA
basis (based upon the then outstanding principal amount of Tranche A Term Loans
and Tranche B Term Loans); and (vi) except as expressly provided in the
preceding clause (iv), each prepayment in respect of any Loans made pursuant to
a Borrowing shall be applied PRO RATA among the Loans comprising such Borrowing;
PROVIDED that at the Borrower's election in connection with any prepayment of
Revolving Loans pursuant to this Section 4.01, such prepayment shall not be
applied to any Revolving Loan of a Defaulting Bank. Each prepayment of principal
of any Tranche of Term Loans pursuant to this Section 4.01 shall be applied to
reduce the then remaining Scheduled Repayments of the respective Tranche of Term
Loans PRO RATA based upon the then remaining principal amounts of the Scheduled
Repayments of the respective Tranche after giving effect to all prior reductions
thereto.
4.02 MANDATORY REPAYMENTS AND COMMITMENT REDUCTIONS. (a) (i)
On any day on which the sum of the aggregate outstanding principal amount of the
Revolving Loans made by Non-Defaulting Banks, Swingline Loans and the Letter of
Credit Outstandings exceeds the Adjusted Total Revolving Loan Commitment as then
in effect minus the Foreign Loan Amount then in effect, the Borrower shall
prepay principal of Swingline Loans and, after the Swingline Loans have been
repaid in full, Revolving Loans of Non-Defaulting Banks in an amount equal to
such excess. If, after giving effect to the prepayment of all outstanding
Swingline Loans and Revolving Loans of Non-Defaulting Banks, the aggregate
amount of the Letter of Credit Outstandings exceeds the Adjusted Total Revolving
Loan Commitment as then in effect, the Borrower shall pay to the Administrative
Agent at the Payment Office on such date an amount of cash or Cash Equivalents
equal to the amount of such excess (up to a maximum amount equal to the Letter
of Credit Outstandings at such time), such cash or Cash Equivalents to be held
as security for all obligations of the Borrower to Non-Defaulting Banks
hereunder in a cash collateral account to be established by the Administrative
Agent.
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(ii) On any day on which the aggregate outstanding principal
amount of the Revolving Loans made by any Defaulting Bank exceeds the Revolving
Loan Commitment of such Defaulting Bank, the Borrower shall prepay principal of
Revolving Loans of such Defaulting Bank in an amount equal to such excess.
(b) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, the Borrower shall be required to repay that principal amount of Tranche
A Term Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and 4.02(i), a "Tranche A Scheduled Repayment," and each such date, a "Tranche A
Scheduled Repayment Date"):
Tranche A
Scheduled Repayment Date Amount
------------------------ ------
March 31, 1999 $1,250,000
June 30, 1999 $1,250,000
September 30, 1999 $1,250,000
December 31, 1999 $1,250,000
March 31, 2000 $1,875,000
June 30, 2000 $1,875,000
September 30, 2000 $1,875,000
December 31, 2000 $1,875,000
March 31, 2001 $1,875,000
June 30, 2001 $1,875,000
September 30, 2001 $1,875,000
December 31, 2001 $1,875,000
March 31, 2002 $3,125,000
June 30, 2002 $3,125,000
September 30, 2002 $3,125,000
December 31, 2002 $3,125,000
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Tranche A
Scheduled Repayment Date Amount
------------------------ ------
March 31, 2003 $3,125,000
June 30, 2003 $3,125,000
September 30, 2003 $3,125,000
December 31, 2003 $3,125,000
(c) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, the Borrower shall be required to repay that principal amount of Tranche
B Term Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and 4.02(i), a "Tranche B Scheduled Repayment," and each such date, a "Tranche B
Scheduled Repayment Date"):
Tranche B
Scheduled Repayment Date Amount
------------------------ ------
September 30, 1998 $100,000
December 31, 1998 $100,000
March 31, 1999 $100,000
June 30, 1999 $100,000
September 30, 1999 $100,000
December 31, 1999 $100,000
March 31, 2000 $100,000
June 30, 2000 $100,000
September 30, 2000 $100,000
December 31, 2000 $100,000
March 31, 2001 $100,000
June 30, 2001 $100,000
September 30, 2001 $100,000
-00-
Xxxxxxx X
Scheduled Repayment Date Amount
------------------------ ------
December 31, 2001 $100,000
March 31, 2002 $100,000
June 30, 2002 $100,000
September 30, 2002 $100,000
December 31, 2002 $100,000
March 31, 2003 $100,000
June 30, 2003 $100,000
September 30, 2003 $4,750,000
December 31, 2003 $4,750,000
March 31, 2004 $4,750,000
June 30, 2004 $4,750,000
September 30, 2004 $4,750,000
December 31, 2004 $4,750,000
March 31, 2005 $4,750,000
June 30, 2005 $4,750,000
(d) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Holdings or any of its Subsidiaries receives any
proceeds from any sale or issuance of its equity (other than proceeds received
(x) on or prior to the Initial Borrowing Date as a result of the Equity
Contribution and (y) from the exercise of stock options granted to management
employees or directors as permitted hereunder, so long as the aggregate amount
of cash proceeds pursuant to this clause (y) does not exceed $1,000,000) an
amount equal to (i) 100% of the cash proceeds of the respective sale or issuance
(net of underwriting discounts and commissions and other direct costs associated
therewith, including, without limitation, legal fees and expenses) to the extent
that such net cash proceeds do not exceed $50,000,000 in the aggregate and (ii)
75% of such net cash proceeds to the extent that such net cash proceeds exceed
$50,000,000 in the aggregate, shall be applied as a mandatory repayment of
principal of outstanding Term Loans (or, if the Initial Borrowing Date has not
yet occurred, such amounts shall be applied as a mandatory reduction to the
Total Term Loan Commitment) in accordance with the requirements of Section
4.02(i) and (j), PROVIDED that (A) the proceeds of any issuance of options,
warrants or other equity as part of a unit in
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connection with any issuance of Indebtedness shall be treated as cash proceeds
from the issuance of Indebtedness and applied as a mandatory repayment as set
forth under Section 4.02(e) and (B) the Borrower shall not be required to comply
with this Section 4.02 (d) until such time as the net proceeds from all such
issuances of equity exceed $1,000,000.
(e) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Holdings or any of its Subsidiaries receives any
proceeds from any incurrence by Holdings or any of its Subsidiaries of
Indebtedness for borrowed money (other than Indebtedness for borrowed money
permitted to be incurred pursuant to Section 9.04 as such Section is in effect
on the Effective Date), an amount equal to the cash proceeds (net of
underwriting discounts and commissions and other costs associated therewith
including, without limitation, legal fees and expenses) of the respective
incurrence of Indebtedness shall be applied as a mandatory repayment of
principal of outstanding Term Loans (or, if the Initial Borrowing Date has not
yet occurred, such amounts shall be applied as a mandatory reduction to the
Total Term Loan Commitment) in accordance with the requirements of Sections
4.02(i) and (j).
(f) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which Holdings or any of its Subsidiaries receives proceeds
from any Asset Sale (excluding (i) sales or transfers of assets in accordance
with Sections 9.02(v) and (vi) as in effect on the Effective Date and (ii) any
other sale of assets so long as, and to the extent that, the aggregate amount of
Net Sale Proceeds from all sales of assets excluded pursuant to this clause (ii)
during any fiscal year of the Borrower in which the Net Sale Proceeds are
received does not exceed $1,000,000 provided that the Net Cash Proceeds of any
excluded sale transaction or series of related sales transactions do not equal
or exceed $1,000,000), an amount equal to 100% of the Net Sale Proceeds
therefrom shall be applied as a mandatory repayment of principal of outstanding
Term Loans (or, if the Initial Borrowing Date has not yet occurred, such amounts
shall be applied as a mandatory reduction to the Total Term Loan Commitment) in
accordance with the requirements of Sections 4.02(i) and (j); PROVIDED that (x)
with respect to no more than $5,000,000 in the aggregate of Net Cash Proceeds
from Asset Sales in any fiscal year of Holdings, such Net Sale Proceeds
therefrom shall not be required to be so applied on such date so long as no
Default or Event of Default then exists and the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such Net Sale Proceeds shall be used to purchase replacement assets within 270
days following the date of such Asset Sale (which certificate shall set forth
the estimates of the proceeds to be so expended), and (y) if all or any portion
of such Net Sale Proceeds not required to be applied to the repayment of
outstanding Term Loans (or to reduce the Total Term Loan Commitment, as the case
may be) are not so reinvested in replacement assets within such 270 day period,
such remaining portion shall be applied on the last day of such period as a
mandatory repayment of principal of outstanding Term Loans as provided above in
this Section 4.02(f) without regard to the immediately preceding proviso.
(g) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 10 days following
each date after the Effective Date on which Holdings or any of its Subsidiaries
receives any proceeds from any Recovery Event, an amount equal to 100% of the
proceeds of such Recovery Event (net of reasonable costs including
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without limitation legal costs and expenses, and taxes incurred in connection
with such Recovery Event) shall be applied as a mandatory repayment of principal
of outstanding Term Loans (or, if the Initial Borrowing Date has not yet
occurred, such amounts shall be applied as a mandatory reduction to the Total
Term Loan Commitment) in accordance with the requirements of Sections 4.02(i)
and (j), PROVIDED that (x) so long as no Default or Event of Default then
exists, such proceeds shall not be required to be so applied on such date to the
extent that the Borrower has delivered a certificate to the Administrative Agent
on or prior to such date stating that such proceeds shall be used or shall be
committed to be used to replace or restore any properties or assets in respect
of which such proceeds were paid within one year following the date of such
Recovery Event (which certificate shall set forth the estimates of the proceeds
to be so expended) and (y) if all or any portion of such proceeds not required
to be applied to the repayment of Term Loans pursuant to the preceding clause
(x) are either (A) not so used or committed to be so used within one year after
the date of the respective Recovery Event or (B) if committed to be used within
one year after the date of receipt of such proceeds of such Recovery Event and
not so used within two years after the date of the respective Recovery Event
then, in either such case, such remaining portion not used or committed to be
used in the case of preceding clause (A) and not used in the case of preceding
clause (B) shall be applied on the date which is the first anniversary of the
date of the respective Recovery Event in the case of clause (A) above or the
date occurring two years after the date of the respective Recovery Event in the
case of clause (B) above as a mandatory repayment of principal of outstanding
Term Loans in accordance with the requirements of Section 4.02(i) and (j); and
provided further, that the immediately preceding proviso shall not be applicable
to any proceeds received in respect of a Recovery Event related to the
Borrower's manufacturing facility located in Jefferson, Wisconsin to the extent
such proceeds exceed $5,000,000.
(h) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date, an amount equal to 50% of
the Excess Cash Flow for the relevant Excess Cash Payment Period shall be
applied as a mandatory repayment of principal of outstanding Term Loans in
accordance with the requirements of Sections 4.02(i) and (j).
(i) Each amount required to be applied to Term Loans (or to
the Total Term Loan Commitment) pursuant to Sections 4.02(d), (e), (f), (g) and
(h) shall be applied PRO RATA to each Tranche of Term Loans based upon the then
remaining principal amounts of the respective Tranches (with each Tranche of
Term Loans to be allocated that percentage of the amount to be applied as is
equal to a fraction (expressed as a percentage) the numerator of which is the
then outstanding principal amount of such Tranche of Term Loans (or, if the
Initial Borrowing Date has not yet occurred, the aggregate Term Loan Commitments
of the Banks with respect to such Tranche) and the denominator of which is equal
to the then outstanding principal amount of all Term Loans (or, if the Initial
Borrowing Date has not yet occurred, the then Total Term Loan Commitment)). Any
amount required to be applied to any Tranche of Term Loans pursuant to Sections
4.02(d), (e), (f), (g) and (h) shall be applied to repay the outstanding
principal amount of Term Loans of the respective Tranche then outstanding (or,
if the Initial Borrowing Date has not yet occurred, to reduce the Total Tranche
A Term Loan Commitment or Total Tranche B Term Loan Commitment, as the case may
be). The amount of each principal repayment of Term Loans (and the amount of
each reduction to the Term Loan Commitments) made as required by Sections
4.02(d), (e), (f), (g) and (h) shall be applied to reduce the then remaining
Scheduled Repayments
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of the respective Tranche PRO RATA based upon the then remaining principal
amounts of the Scheduled Repayments of the respective Tranche after giving
effect to all prior reductions thereto.
(j) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans of the respective
Tranche which are to be repaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings of the respective Tranche pursuant to which
made, PROVIDED that: (i) repayments of Eurodollar Loans pursuant to this Section
4.02 may only be made on the last day of an Interest Period applicable thereto
unless all Eurodollar Loans of the respective Tranche with Interest Periods
ending on such date of required repayment and all Base Rate Loans of the
respective Tranche have been paid in full; (ii) if any repayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than
$1,000,000, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of
any Loans comprising a Borrowing shall be applied PRO RATA among such Loans. In
the absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion.
(k) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding Swingline Loans shall be
repaid in full on the Swingline Expiry Date and (ii) all other then outstanding
Loans shall be repaid in full on the respective Maturity Date for such Loans.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or Banks
entitled thereto not later than 12:00 Noon (New York time) on the date when due
and shall be made in Dollars in immediately available funds at the Payment
Office of the Administrative Agent. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.
4.04 NET PAYMENTS; TAXES. (a) All payments made by any Credit
Party hereunder or under any Note will be made without setoff, counterclaim or
other defense. Except as provided in Section 4.04(b), all such payments will be
made free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Bank pursuant to
the laws of the United States of America, the jurisdiction in which it is
organized or the jurisdiction in which the principal office or applicable
lending office of such Bank is located or any subdivision thereof or therein)
and all interest, penalties or similar liabilities with respect to such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and
such additional
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amounts as may be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on account of
any Taxes, will not be less than the amount provided for herein or in such Note.
If any amounts are payable in respect of Taxes pursuant to the preceding
sentence, the Borrower agrees to reimburse each Bank, upon the written request
of such Bank, for taxes imposed on or measured by the net income or net profits
of such Bank pursuant to the laws of the jurisdiction in which such Bank is
organized or in which the principal office or applicable lending office of such
Bank is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Bank is organized or in which
the principal office or applicable lending office of such Bank is located and
for any withholding of taxes as such Bank shall determine are payable by, or
withheld from, such Bank, in respect of such amounts so paid to or on behalf of
such Bank pursuant to the preceding sentence and in respect of any amounts paid
to or on behalf of such Bank pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment of
any Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless each Bank, and reimburse such Bank upon its written request, for
the amount of any Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.13 or 13.04
(unless the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii)
if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8 (or successor form) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition, each
Bank agrees that from time to time after the Effective Date, when a lapse in
time or change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section
4.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Agent of its inability to deliver any such Form or
Certificate, in which case such Bank shall not be required to deliver any such
Form or Certificate pursuant to this Section 4.04(b). Notwithstanding anything
to the contrary contained in Section 4.04(a), but subject to Section 13.04(b)
and the immediately succeeding sentence, (x) the Borrower shall be entitled, to
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the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, Fees or other amounts
payable hereunder for the account of any Bank which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Bank has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States if (I) such Bank
has not provided to the Borrower the Internal Revenue Service Forms required to
be provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case
of a payment, other than interest, to a Bank described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 4.04 and except as set forth
in Section 13.04(b), the Borrower agrees to pay any additional amounts and to
indemnify each Bank in the manner set forth in Section 4.04(a) (without regard
to the identity of the jurisdiction requiring the deduction or withholding) in
respect of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the Effective Date in any
applicable law, treaty, governmental rule, regulation, guideline or order, or in
the interpretation thereof, relating to the deducting or withholding of such
Taxes.
SECTION 5. CONDITIONS PRECEDENT TO LOANS. The obligation of
each Bank to make Loans, and the obligation of each Issuing Bank to issue
Letters of Credit, on the Initial Borrowing Date, is subject at the time of the
making of such Loans or the issuance of such Letters of Credit to the
satisfaction of the following conditions:
5.01 EXECUTION OF AGREEMENT; NOTES. On or prior to the Initial
Borrowing Date (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each of the
Banks the appropriate Tranche A Term Note, Tranche B Term Note and/or Revolving
Note executed by the Borrower, and to the Swingline Bank the Swingline Note
executed by the Borrower, in each case in the amount, maturity and as otherwise
provided herein.
5.02 FEES, ETC. On the Initial Borrowing Date, the Borrower
shall have paid to the Administrative Agent and the Banks all costs, fees and
expenses (including, without limitation, legal fees and expenses) payable to the
Administrative Agent and the Banks to the extent then due.
5.03 OPINIONS OF COUNSEL. On the Initial Borrowing Date, the
Administrative Agent shall have received (i) from King & Spalding, special
counsel to Holdings and its Subsidiaries, an opinion addressed to the
Administrative Agent and each of the Banks and dated the Initial Borrowing Date
covering the matters set forth in Exhibit E and (ii) from local counsel
satisfactory to the Administrative Agent, opinions each of which (x) shall be
addressed to the Administrative Agent and each of the Banks and dated the
Initial Borrowing Date, (y) shall be in form and substance satisfactory to the
Administrative Agent and the Required Banks and (z) shall cover the perfection
of the security interests granted pursuant to the Security Agreement and the
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Mortgages and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
5.04 CORPORATE DOCUMENTS; PROCEEDINGS; ETC. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date, signed by the Chairman of the Board, the
President, any Vice President or the Treasurer of each Credit Party and of
DelCorp, and attested to by the Secretary or any Assistant Secretary of such
Credit Party or DelCorp, as the case may be, in the form of Exhibit F with
appropriate insertions, together with copies of the Certificate of Incorporation
and By-Laws (or equivalent organizational documents) of such Credit Party and
the resolutions of such Credit Party referred to in such certificate, and the
foregoing shall be reasonably acceptable to the Administrative Agent.
(b) All corporate and legal proceedings and all material
instruments and agreements in connection with the transactions contemplated by
this Agreement and the other Documents shall be reasonably satisfactory in form
and substance to the Administrative Agent and the Required Banks, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles, if
any, which the Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate or governmental authorities.
5.05 EMPLOYEE BENEFIT PLANS; SHAREHOLDERS' AGREEMENTS;
MANAGEMENT AGREEMENTS; DEBT AGREEMENTS; ACQUISITION DOCUMENTS; TAX SHARING
AGREEMENTS. On the Initial Borrowing Date, there shall have been made available
for review by the Administrative Agent and the Banks true and correct copies of
the following documents:
(i) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of
the most recent such report (including, to the extent required, the
related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information), and
for each Plan that is a "single-employer plan," as defined in Section
4001(a)(15) of ERISA, if any, the most recently prepared actuarial
valuation therefor) and any other "employee benefit plans," as defined
in Section 3(3) of ERISA, and any other material agreements, plans or
arrangements, with or for the benefit of current or former employees of
Holdings or any of its Subsidiaries or any ERISA Affiliate (provided
that the foregoing shall apply in the case of any multiemployer plan,
if any, as defined in 4001(a)(3) of ERISA, only to the extent that any
document described therein is in the possession of Holdings or any
Subsidiary of Holdings or any ERISA Affiliate or reasonably available
thereto from the sponsor or trustee of any such plan) (collectively,
the "Employee Benefit Plans");
(ii) all agreements entered into by Holdings or any of its
Subsidiaries governing the terms and relative rights of its capital
stock and any agreements entered into by shareholders relating to any
such entity with respect to its capital stock (collectively, the
"Shareholders' Agreements");
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(iii) all agreements with members of, or with respect to, the
management of Holdings or any of its Subsidiaries (collectively, the
"Management Agreements");
(iv) all agreements evidencing or relating to Indebtedness of
Holdings or any of its Subsidiaries which is to remain outstanding
after giving effect to the incurrence of Loans on the Initial Borrowing
Date (collectively, the "Debt Agreements"); and
(v) all tax sharing, tax allocation and other similar
agreements entered into by Holdings, the Borrower or any of their
respective Subsidiaries (collectively, the "Tax Sharing Agreements");
all of which Employee Benefit Plans, Shareholders' Agreements,
Management Agreements, Debt Agreements and Tax Sharing Agreements shall be in
form and substance reasonably satisfactory to the Administrative Agent and shall
be in full force and effect on the Initial Borrowing Date.
5.06 FINANCINGS; ETC. (a) On or prior to the Initial Borrowing
Date, (i) Holdings shall have received gross cash proceeds of at least
$110,000,000 from the Equity Financing, (ii) Holdings shall have contributed the
full amount of the gross cash proceeds received by it from the Equity Financing
as a common equity contribution to DelCorp and WisCorp, (iii) each of DelCorp
and WisCorp shall have contributed the full amount of the gross cash proceeds
received by it from Holdings as described in the immediately preceding clause
(ii) to the capital of the Borrower as a common equity contribution in exchange
for membership interests in the Borrower constituting in the aggregate, 100% of
membership interests in the Borrower, and (iv) the Borrower shall have utilized
the full amount of such cash contribution to make payments owing in connection
with the Transaction.
(b) On or prior to the Initial Borrowing Date, (i) the
Borrower shall have received gross cash proceeds of $110,000,000 from the
issuance of a like principal amount of the Senior Subordinated Notes and (ii)
the Borrower shall have utilized the full amount of the net cash proceeds
received from the issuance of the Senior Subordinated Notes to make payments
owing in connection with the Transaction.
(c) On or prior to the Initial Borrowing Date, there shall
have been delivered to the Administrative Agent true and correct copies of the
Equity Financing Documents and the Senior Subordinated Note Documents and all of
the terms and conditions of the Equity Financing Documents and the Senior
Subordinated Note Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent and the Required Banks. The Equity
Financing and the issuance of the Senior Subordinated Notes shall have been
consummated, in each case in all material respects in accordance with the terms
and conditions of the applicable Documents therefor and all applicable laws.
5.07 ACQUISITION; ETC. (a) On or prior to the Initial
Borrowing Date, there shall have been delivered to the Administrative Agent true
and correct copies of the Acquisition Agreement and the other Acquisition
Documents, all of which Acquisition Documents shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Required Banks
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and in full force and effect. All material conditions precedent to the
consummation of the Acquisition as contained in the Acquisition Agreement shall
have been satisfied and not waived without the consent of the Administrative
Agent and the Required Banks, and any amendment to the Acquisition Documents
shall be required to be reasonably satisfactory in form and substance to the
Administrative Agent and the Required Banks.
(b) On or prior to the Initial Borrowing Date, the Acquisition
shall have been (or shall be) consummated in all material respects in accordance
with the Acquisition Documents and all applicable laws.
5.08 INDEBTEDNESS. After giving effect to the consummation of
the Transaction, Holdings, the Borrower and their respective Subsidiaries shall
have no outstanding Indebtedness except (i) the Senior Subordinated Notes, (ii)
the Loans and (iii) such other indebtedness, if any, as shall be permitted to
remain outstanding by the Administrative Agent and the Required Banks and which
is listed on Schedule V hereto.
5.09 SUBSIDIARIES GUARANTY. To the extent any Subsidiary
Guarantors exist on the Initial Borrowing Date, each such Subsidiary Guarantor
shall have duly authorized, executed and delivered a Subsidiaries Guaranty on
such date.
5.10 PLEDGE AGREEMENT. On the Initial Borrowing Date, each
Credit Party shall have duly authorized, executed and delivered a Pledge
Agreement in the form of Exhibit H (as modified, supplemented or amended from
time to time, the "Pledge Agreement") and shall have delivered to the Collateral
Agent, as pledgee, all the Pledged Securities, if any, referred to therein then
owned by such Credit Party, (x) endorsed in blank in the case of promissory
notes constituting Pledged Securities and (y) together with executed and undated
stock powers, in the case of capital stock constituting Pledged Securities.
5.11 SECURITY AGREEMENT. (a) On the Initial Borrowing Date,
each Credit Party shall have duly authorized, executed and delivered a Security
Agreement in the form of Exhibit I (as modified, supplemented or amended from
time to time, the "Security Agreement") covering all of such Credit Party's
present and future Security Agreement Collateral, in each case together with:
(i) proper Financing Statements (Form UCC-1) fully executed
for filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported
to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements that name any Credit Party as debtor and that are filed in
the jurisdictions referred to in clause (a) above, together with copies
of such other financing statements (none of which shall cover the
Collateral except to the extent evidencing Permitted Liens or in
respect of which the Collateral Agent shall have received termination
statements (Form UCC-3) or such other termination statements as shall
be required by local law) fully executed for filing;
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(iii) evidence of execution for post-closing filing and
recordation of all other recordings and filings of, or with respect to,
the Security Agreement as may be necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by such Security Agreement; and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been taken.
(b) On the Initial Borrowing Date, the Borrower shall have
duly authorized, executed and delivered a debenture in form and substance
satisfactory to the Administrative Agent covering the Borrower's property and
rights situated in England and Wales (such debenture as modified, supplemented
or amended from time to time, the "U.K. Security Agreement").
5.12 MORTGAGES; TITLE INSURANCE; SURVEYS; ETC. On the Initial
Borrowing Date, the Collateral Agent shall have received:
(a) fully executed counterparts of mortgages or deeds to
secure debt in each case in form and substance reasonably satisfactory
to the Administrative Agent (each, a "Mortgage" and, collectively, the
"Mortgages"), which Mortgages shall cover such of the Real Property
owned or leased by the Borrower or any Domestic Subsidiary as shall be
designated as such on Schedule III (each, a "Mortgaged Property" and,
collectively, the "Mortgaged Properties"), together with evidence that
counterparts of the Mortgages have been delivered to the title
insurance company insuring the Lien of the Mortgages for recording in
all places to the extent necessary or, in the reasonable opinion of the
Collateral Agent, desirable to effectively create a valid and
enforceable first priority mortgage lien, subject only to Permitted
Encumbrances, on each Mortgaged Property in favor of the Collateral
Agent (or such other trustee as may be required or desired under local
law) for the benefit of the Secured Creditors; and
(b) mortgagee title insurance policies on each Mortgaged
Property issued by, Chicago Title Insurance Company, or such other
title insurers reasonably satisfactory to the Collateral Agent (the
"Mortgage Policies") in amounts satisfactory to the Administrative
Agent and the Required Banks assuring the Collateral Agent that the
Mortgages on such Mortgaged Properties are valid and enforceable first
priority mortgage liens on the respective Mortgaged Properties, free
and clear of all defects and encumbrances except Permitted Encumbrances
and such Mortgage Policies shall otherwise be in form and substance
reasonably satisfactory to the Administrative Agents and the Required
Banks and shall include, as appropriate, an endorsement for future
advances under this Agreement and the Notes and for any other matter
that the Collateral Agent in its reasonable discretion may reasonably
request, shall not include an exception for mechanics' liens, and shall
provide for affirmative insurance and such reinsurance as the
Collateral Agent in its discretion may reasonably request.
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5.13 CONSENT LETTER. On the Initial Borrowing Date, the
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, substantially in the
form of Exhibit J, indicating its consent to its appointment by each Credit
Party as its agent to receive service of process as specified in Section 13.08.
5.14 ADVERSE CHANGE, ETC. (a) On the Initial Borrowing Date,
there shall not have occurred or been threatened since December 31, 1997 any
material adverse change (or a series of adverse changes) constituting a material
adverse change in or affecting the business, property, assets, nature of assets,
liabilities condition (financed or otherwise) or prospects of the Business.
(b) On or prior to the Initial Borrowing Date, all necessary
material governmental (domestic and foreign) and third party approvals and/or
consents in connection with the Transaction, the transactions contemplated by
the Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect, and all applicable waiting periods shall have
expired without any action being taken by any competent authority which
restrains, prevents or imposes materially adverse conditions upon the
consummation of the Transaction or the transactions contemplated by this
Agreement. Additionally, there shall not exist any judgment, order, injunction
or other restraint prohibiting or imposing materially adverse conditions upon
the Transaction or the transactions contemplated by this Agreement.
5.15 LITIGATION. On the Initial Borrowing Date, no litigation
by any entity (private or governmental) shall be pending or threatened with
respect to the Transaction or this Agreement or any documentation executed in
connection therewith, or which the Administrative Agent shall determine could
reasonably be expected to have a materially adverse effect on the Transaction or
the business, property, assets, condition (financial or otherwise) or prospects
of the Parent Guarantors, the Borrower, or the Borrower and its Subsidiaries
taken as a whole (after giving effect to the Transaction).
5.16 SOLVENCY OPINION; ENVIRONMENTAL ANALYSES; INSURANCE. On
or before the Initial Borrowing Date, the Borrower shall cause to be delivered
to the Administrative Agent (i) a solvency opinion from Valuation Research
Corporation in the form of Exhibit K hereto, which shall be addressed to the
Administrative Agent and each of the Banks and dated the Initial Borrowing Date,
setting forth the conclusion that, after giving effect to the Transaction and
the incurrence of all the financings contemplated herein, each Parent Guarantor
and its Subsidiaries taken as a whole and the Borrower, are not insolvent and
will not be rendered insolvent by the indebtedness incurred in connection
therewith, and will not be left with unreasonably small capital with which to
engage in their businesses and will not have incurred debts beyond their ability
to pay debts as they mature, (ii) environmental and hazardous substance analyses
with respect to the properties of Holdings and its Subsidiaries, the results of
which shall be in scope, and in form and substance satisfactory to the
Administrative Agent and the Required Banks (it being acknowledged and agreed
that the environmental and hazardous substance analyses furnished to the
Administrative Agent on or prior to May 5, 1998 are in form and substance
satisfactory to the Agents and the Required Banks) and (iii) certificates of
insurance complying with the requirements of Section 8.03 for the business and
properties of Holdings and its Subsidiaries, in
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scope, form and substance reasonably satisfactory to the Administrative Agent
and the Required Banks and naming the Collateral Agent as an additional insured
and/or loss payee, and stating that such insurance shall not be cancelled or
revised without 30 days prior written notice by the insurer to the Collateral
Agent.
5.17 PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS;
PROJECTIONS. On or prior to the Initial Borrowing Date, the Agents shall have
received copies of the financial statements (including the PRO forma financial
statements) and Projections referred to in Sections 7.05(a) and (d).
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The
obligation of each Bank to make Loans (including Loans made on the Initial
Borrowing Date but excluding Mandatory Borrowings made thereafter, which shall
be made as provided in Section 1.01(e)), and the obligation of an Issuing Bank
to issue any Letter of Credit, is subject, at the time of each such Credit Event
(except as hereinafter indicated), to the satisfaction of the following
conditions:
6.01 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time
of each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of the making of such Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
6.02 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (a) Prior
to the making of each Loan (excluding Swingline Loans), the Administrative Agent
shall have received the notice required by Section 1.03(a). Prior to the making
of any Swingline Loan, the Swingline Bank shall have received the notice
required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.02.
The acceptance of the proceeds of each Credit Event shall constitute a
representation and warranty by the Borrower to the Administrative Agent and each
of the Banks that all the conditions specified in Section 5 and in this Section
6 and applicable to such Credit Event have been satisfied as of that time. All
of the Notes, certificates, legal opinions and other documents and papers
referred to in Section 5 and in this Section 6, unless otherwise specified,
shall be delivered to the Administrative Agent at the Notice Office for the
account of each of the Banks and, except for the Notes, in sufficient
counterparts for each of the Banks and shall be in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Banks to enter into this Agreement and to make the Loans,
and issue (or participate in) the Letters of Credit as provided herein, each
Parent Guarantor and the Borrower makes the following representations,
warranties and agreements, in each case after giving effect to the Transaction
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as consummated on the Initial Borrowing Date, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans and issuance of the Letters of Credit, with the occurrence of each Credit
Event on or after the Initial Borrowing Date being deemed to constitute a
representation and warranty that the matters specified in this Section 7 are
true and correct in all material respects on and as of the Initial Borrowing
Date and on the date of each such Credit Event (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects only as
of such specified date).
7.01 CORPORATE STATUS. Each Parent Guarantor, the Borrower and
each of their respective Subsidiaries (i) is a duly organized and validly
existing corporation or limited liability company, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
corporate or other applicable power and authority to own its property and assets
and to transact the business in which it is engaged and presently proposes to
engage and (iii) is duly qualified and is authorized to do business and is in
good standing in each jurisdiction where the conduct of its business requires
such qualifications except for failures to be so qualified which, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
7.02 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate or other applicable power and authority to execute, deliver and
perform the terms and provisions of each of the Documents to which it is party
and has taken all necessary corporate or other applicable action to authorize
the execution, delivery and performance by it of each of such Documents. Each
Credit Party has duly executed and delivered each of the Documents to which it
is party, and each of such Documents constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
7.03 NO VIOLATION. Neither the execution, delivery or
performance by any Credit Party of the Documents to which it is a party, nor
compliance by it with the terms and provisions thereof, (i) will contravene any
provision of any applicable law, statute, rule or regulation or any applicable
order, writ, injunction or decree of any court or governmental instrumentality,
(ii) will conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the properties or assets
of any Parent Guarantor, the Borrower or any of their respective Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument, to which any Parent Guarantor, the Borrower or any of their
respective Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject (excluding, in the case of the
Acquisition Documents, from the foregoing clauses (i) and (ii) such immaterial
violations, which in no event shall violate the provisions of this Agreement or
otherwise be reasonably expected to have (x) a material adverse effect on (I)
the Transaction or (II) the rights or remedies of the Administrative Agent or
the Banks, or on the ability of any Credit Party to perform their respective
obligations to
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the Administrative Agent and the Banks or (y) a Material Adverse Effect) or
(iii) will violate any provision of the Certificate of Incorporation or By-Laws
(or equivalent organizational documents) of any Parent Guarantor, the Borrower
or any of their respective Subsidiaries.
7.04 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made or, in the case of any filings or
recordings in respect of the Security Documents executed on the Initial
Borrowing Date, will be made within 10 days thereof), or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of any Document or (ii) the legality, validity, binding
effect or enforceability of any Document.
7.05 FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; PROJECTIONS; ETC. (a) The audited balanced sheets of the Business
for the fiscal years and three month period ended on December 31, 1996, December
31, 1997 and March 31, 1998, respectively, and the related statements of income,
cash flows and shareholders' equity of the Business for the fiscal year or three
month period, as the case may be ended on such dates, copies of which have been
furnished to the Banks prior to the Effective Date, present fairly in all
material respects the financial position of the Business at the dates of such
balance sheets and the results of the operations of the Business for the periods
covered thereby. All of the foregoing historical financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied. The PRO FORMA consolidated financial statements of
Holdings and its Subsidiaries as of March 31, 1998, after giving effect to the
Transaction, copies of which have been furnished to the Banks prior to the
Effective Date, present fairly in all material respects the PRO FORMA
consolidated financial position of Holdings and its Subsidiaries as March 31,
1998 and the PRO FORMA consolidated results of operations of Holdings and its
Subsidiaries for the period covered thereby.
(b) (i) On and as of the Initial Borrowing Date, on a PRO
FORMA basis after giving effect to the Transaction and all other transactions
contemplated by the Documents and to all Indebtedness (including the Loans)
being incurred or assumed, and Liens created by each Credit Party in connection
therewith, with respect to each Parent Guarantor and the Borrower, individually,
and each such Person and its Subsidiaries taken as a whole, (x) the sum of the
assets, at a fair valuation, of each such Person, individually, and each such
Person and its Subsidiaries taken as a whole, will exceed its or their debts;
(y) it has not incurred and does not intend to incur, nor believes that it will
incur, debts beyond its ability to pay such debts as such debts mature; and (z)
it will have sufficient capital with which to conduct its business. For purposes
of this Section 7.05(b), "debt" means any liability on a claim and "claim" means
(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.
(c) Except as fully disclosed in the financial statements
(including the PRO FORMA financial statements) delivered pursuant to Section
7.05(a), there were as of the Initial
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Borrowing Date no liabilities or obligations with respect to Holdings or any of
its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent
or otherwise and whether or not due) which, either individually or in the
aggregate, would be adversely material to the Business or Holdings and its
Subsidiaries taken as a whole or the Borrower. As of the Initial Borrowing Date,
none of the Credit Parties knows of any basis for the assertion against it of
any liability or obligation of any nature that is not fully disclosed in the
financial statements delivered pursuant to Section 7.05(a) which, either
individually or in the aggregate, could be materially adverse to Holdings and
its Subsidiaries taken as a whole or the Borrower.
(d) On and as of the Initial Borrowing Date, the Projections
which have been delivered to the Administrative Agent and the Banks on or prior
to the Effective Date have been prepared on a basis consistent with the
financial statements referred to in Section 7.05(a), and are based on good faith
estimates and assumptions believed by management of Holdings and the Borrower to
be reasonable as of the date of such Projections, and there are no statements or
conclusions in any of the Projections which are based upon or include
information known to Holdings or any of its Subsidiaries to be misleading in any
material respect or which fail to take into account material information
regarding the matters reported therein. On the Initial Borrowing Date, Holdings
believes that the Projections were reasonable.
(e) Since December 31, 1997 (x) if this representation is
being made (or deemed made) on or prior to the Initial Borrowing Date, there has
been no material adverse change in the operations, properties, financial
condition or prospects of the Business, Holdings and its Subsidiaries taken as a
whole or the Borrower and (y) if this representation is being made (or deemed
made) at any time after the Initial Borrowing Date after giving effect to the
Transaction, nothing has occurred that has had or could reasonably be expected
to have a Material Adverse Effect.
7.06 LITIGATION. There are no actions, suits or proceedings
pending or, to the best knowledge of Holdings and the Borrower, threatened (i)
with respect to any Document or (ii) that could reasonably be expected to have a
Material Adverse Effect.
7.07 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) furnished by or on behalf of Holdings or the Borrower in
writing to the Administrative Agent or any Bank (including, without limitation,
all information contained in the Documents or in the Offering Circular) for
purposes of or in connection with this Agreement, the other Credit Documents or
any transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of Holdings
or the Borrower in writing to the Administrative Agent or any Bank will be, true
and accurate in all material respects on the date as of which such information
is dated or certified and not incomplete by omitting to state any fact necessary
to make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such information
was provided.
7.08 USE OF PROCEEDS; MARGIN REGULATIONS. (a) All proceeds of
the Term Loans shall be used by the Borrower (i) to effect the Acquisition and
(ii) to pay fees and expenses related to the Acquisition.
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(b) All proceeds of all Revolving Loans and all Swingline
Loans incurred after the Initial Borrowing Date shall be used for the Borrower's
general corporate and working capital purposes (excluding the purposes described
in preceding Section 7.08(a)).
(c) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor the
use of the proceeds thereof nor the occurrence of any other Credit Event will
violate or be inconsistent with the provisions of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
7.09 TAX RETURNS AND PAYMENTS. Each of Holdings and each of
its Subsidiaries has filed all federal income tax returns and all other tax
returns, domestic and foreign, required to be filed by it and has paid all taxes
and assessments payable by it which have become due, except for those contested
in good faith and adequately disclosed and fully provided for on the financial
statements of Holdings and its Subsidiaries in accordance with generally
accepted accounting principles. Holdings and each of its Subsidiaries have at
all times paid, or have provided adequate reserves (in the good faith judgment
of the management of Holdings) for the payment of, all federal, state and
foreign income taxes applicable for all prior fiscal years and for the current
fiscal year to date. There is no action, suit, proceeding, investigation, audit,
or claim now pending or, to the knowledge of Holdings or any of its
Subsidiaries, threatened by any authority regarding any taxes relating to
Holdings or any of its Subsidiaries which could be reasonably expected to have a
Material Adverse Effect. As of the Initial Borrowing Date, neither Holdings nor
any of its Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of Holdings or any of
its Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of Holdings or any of its Subsidiaries not to be
subject to the normally applicable statute of limitations. Neither Holding nor
any Subsidiary has incurred, or will incur, any material tax liability in
connection with the Transaction.
7.10 COMPLIANCE WITH ERISA. (i) Schedule VII sets forth, as of
the Initial Borrowing Date, each Plan; each Plan (and each related trust,
insurance contract or fund) is in substantial compliance with its terms and with
all applicable laws, including without limitation ERISA and the Code; each Plan
(and each related trust, if any) which is intended to be qualified under Section
401(a) of the Code has received a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Sections 401(a) and
501(a) of the Code, or has been drafted with the intent that it meets the
requirements of Sections 401(a) and 501(a) of the Code and will be amended as
required by the Internal Revenue Service to meet such requirements since the
effective date of the Plan; no Reportable Event has occurred; no Plan which is a
multiemployer plan (as defined in Section 4001(a)(3) of ERISA) is insolvent or
in reorganization; no Plan has an Unfunded Current Liability which, when added
to the aggregate amount of Unfunded Current Liabilities of all other Plans,
exceeds the aggregate amount of such Unfunded Current Liabilities that existed
on the Initial Borrowing Date by $100,000; no Plan which is subject to Section
412 of the Code or Section 302 of ERISA has an accumulated funding deficiency,
within the meaning of such sections of the Code or ERISA, or has applied for or
received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; to the
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best knowledge of Holdings or any Subsidiary of Holdings, all contributions
required to be made with respect to a Plan have been or will be timely made;
neither Holdings nor any Subsidiary of Holdings nor any ERISA Affiliate has
incurred any material liability (including any indirect, contingent or secondary
liability) to or on account of a Plan pursuant to Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971 or 4975 of the Code or expects to incur any such liability under any of the
foregoing sections with respect to any Plan; to the best knowledge of Holdings
or any Subsidiary of Holdings, no condition exists which presents a material
risk to Holdings or any Subsidiary of Holdings or any ERISA Affiliate of
incurring a liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; no proceedings have been instituted to
terminate or appoint a trustee to administer any Plan which is subject to Title
IV of ERISA; to the best knowledge of Holdings or any Subsidiary of Holdings, no
action, suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending, or, to the best knowledge of Holdings
or any Subsidiary of Holdings, expected or threatened; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of Holdings and its Subsidiaries
and its ERISA Affiliates to all Plans which are multiemployer plans (as defined
in Section 4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom,
as of the close of the most recent fiscal year of each such Plan ended prior to
the date of the most recent Credit Event, would not exceed $100,000; each group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) which covers or has covered employees or former employees of Holdings, any
Subsidiary of Holdings, or any ERISA Affiliate has at all times been operated in
material compliance with the provisions of Part 6 of subtitle B of Title I of
ERISA and Section 4980B of the Code; no lien imposed under the Code or ERISA on
the assets of Holdings or any Subsidiary of Holdings or any ERISA Affiliate
exists or is likely to arise on account of any Plan; and Holdings and its
Subsidiaries may cease contributions to or terminate any Employee Benefit Plan
maintained by any of them without incurring any material liability.
(ii) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities. All contributions required to be made with respect to a Foreign
Pension Plan have been or will be timely made. Neither Holdings nor any of its
Subsidiaries has incurred any obligation in connection with the termination of
or withdrawal from any Foreign Pension Plan. The excess of the present value of
the accrued benefit liabilities (whether or not vested) under each Foreign
Pension Plan, determined as of the end of Holdings' most recently ended fiscal
year on the basis of actuarial assumptions, each of which is reasonable, over
the current value of the assets of each such Foreign Pension Plan allocable to
such benefit liabilities does not, in the aggregate, have a Material Adverse
Effect.
7.11 THE SECURITY DOCUMENTS. (a) The provisions of the
Security Agreement are effective to create in favor of the Collateral Agent for
the benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Security Agreement, upon the
filing of Form UCC-1 financing statements or the appropriate equivalent (which
filings, if this representation is being made more than 10 days after the
Initial Borrowing Date, have been made),
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create a fully perfected first lien on, and security interest in, all right,
title and interest in all of the Security Agreement Collateral described
therein, subject to no other Liens other than Permitted Liens, to the extent a
security interest in such collateral can be perfected by the filing of a
financing statement. The recordation of the Assignment of Security Interest in
U.S. Patents and Trademarks in the form attached to the Security Agreement in
the United States Patent and Trademark Office together with filings on Form
UCC-1 made pursuant to the Security Agreement will be effective when recorded or
filed (which recordings or filings, if this representation is being made more
than 10 days after the Initial Borrowing Date, have been made), under applicable
law, to perfect the security interest granted to the Collateral Agent in the
trademarks and patents covered by the Security Agreement and the recordation of
the Assignment of Security Interest in U.S. Copyrights in the form attached to
the Security Agreement with the United States Copyright Office together with
filings on Form UCC-1 made pursuant to the Security Agreement will be effective
when recorded or filed (which recordings or filings, if this representation is
being made more than 10 days after the Initial Borrowing Date, have been made)
under federal law to perfect the security interest granted to the Collateral
Agent in the copyrights covered by the Security Agreement.
(b) The security interests created in favor of the Collateral
Agent, as pledgee, for the benefit of the Secured Creditors under the Pledge
Agreement constitute first priority perfected security interests in the Pledged
Securities described in the Pledge Agreement, subject to no security interests
of any other Person. No filings or recordings are required in order to perfect
(or maintain the perfection or priority of) the security interests created in
the Pledged Securities and the proceeds thereof under the Pledge Agreement.
(c) The Mortgages create, as security for the obligations
purported to be secured thereby, a valid and enforceable perfected security
interest in and mortgage lien on all of the Mortgaged Properties in favor of the
Collateral Agent (or such other trustee as may be required or desired under
local law) for the benefit of the Secured Creditors, superior to and prior to
the rights of all third persons (except that the security interest and mortgage
lien created in the Mortgaged Properties may be subject to the Permitted
Encumbrances related thereto) and subject to no other Liens (other than
Permitted Liens). Schedule III contains a true and complete list of each parcel
of Real Property owned or leased by the Borrower and its Subsidiaries on the
Initial Borrowing Date, and the type of interest therein held by the Borrower or
such Subsidiary. The Borrower and each of its Subsidiaries have good and
indefeasible title to all fee-owned Mortgaged Properties and valid leasehold
title to all Leaseholds, in each case free and clear of all Liens except those
described in the first sentence of this subsection (c).
(d) The provisions of the U.K. Security Agreement are
effective to create in favor of the Collateral Agent for the benefit of the
Secured Creditors a legal, valid and enforceable security interest in all right,
title and interest of the Credit Parties in the Charged Assets described
therein, and the U.K. Security Agreement, creates a fully perfected first lien
on, and security interest in, all right, title and interest in all of the
Charged Assets described therein, subject to no other Liens other than Permitted
Liens.
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7.12 REPRESENTATIONS AND WARRANTIES IN DOCUMENTS. On the
Initial Borrowing Date, to the knowledge of the Borrower, all representations
and warranties set forth in the other Documents were true and correct in all
material respects at the time as of which such representations and warranties
were made (or deemed made).
7.13 PROPERTIES. Holdings, the Borrower and each of their
respective Subsidiaries have good and valid title to all properties owned by
them, including all property reflected in the most recent balance sheet of the
Business referred to in Section 7.05(a) and in the pro forma balance sheet
referred to in Section 5.18 (except as sold or otherwise disposed of since the
date of such balance sheet in the ordinary course of business), free and clear
of all Liens, other than Permitted Liens permitted by Section 9.01. On the
Initial Borrowing Date, Schedule III sets forth a true and complete description
of all Real Property owned or leased by the Borrower and/or its Subsidiaries and
sets forth the direct owner or lessee thereof.
7.14 CAPITALIZATION. (a) On the Initial Borrowing Date and
after giving effect to the Transaction, the authorized capital stock of Holdings
shall consist of 12,000 shares of Common Stock, 8,500 of which shall be issued
and outstanding. All such outstanding shares have been duly and validly issued,
are fully paid and non-assessable and have been issued free of preemptive
rights. Except as set forth on Schedule XI, on the Initial Borrowing Date,
Holdings does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreement providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its capital stock.
(b) On the Initial Borrowing Date and after giving effect to
the Transaction, the authorized capital stock of DelCorp shall consist of 1,000
shares of common stock, 1,000 of which shall be issued and outstanding and shall
be owned by Holdings. All such outstanding shares of common stock have been duly
and validly issued, are fully paid and nonassessable and are free of preemptive
rights. As of the Initial Borrowing Date, DelCorp does not have outstanding any
securities convertible into or exchangeable for its capital stock or outstanding
any rights to subscribe for or to purchase, or any options for the purchase of,
or any agreements providing for the issuance (contingent or otherwise) of, or
any calls, commitments or claims of any character relating to, its capital
stock.
(c) On the Initial Borrowing Date and after giving effect to
the Transaction, the authorized capital stock of WisCorp shall consist of 1,000
shares of common stock, 1,000 of which shall be issued and outstanding, shall be
owned by Holdings and shall be delivered for pledge pursuant to the Pledge
Agreement. All such outstanding shares of common stock have been duly validly
issued, are fully paid and nonassessable and are free of preemptive rights. As
of the Initial Borrowing Date, WisCorp does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock.
(d) All outstanding equity interests of the Borrower have been
duly and validly issued and are fully paid and have been delivered for pledge
pursuant to the Pledge Agreement.
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The Borrower does not have outstanding any securities convertible into or
exchangeable for its membership interests or outstanding any rights to subscribe
for or to purchase, or any options for the purchase of, or any agreement
providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its membership interests.
7.15 SUBSIDIARIES. After giving effect to the Transaction,
Holdings will have no Subsidiaries other than DelCorp., WisCorp. and the
Borrower and its Subsidiaries. After giving effect to the Transaction, the
Borrower will have no Subsidiaries other than (i) those Subsidiaries listed on
Schedule VIII and (ii) new Subsidiaries created in compliance with Section 9.14.
An accurate organization chart, showing the ownership structure of Holdings and
each of its Subsidiaries on the Initial Borrowing Date, and after giving effect
to the Transaction, is set forth on Schedule XII.
7.16 COMPLIANCE WITH STATUTES, ETC. Holdings, the Borrower and
each of their respective Subsidiaries each is in compliance 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 statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.17 INVESTMENT COMPANY ACT. None of Holdings, the Borrower or
any of their respective 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.
7.18 PUBLIC UTILITY HOLDING COMPANY ACT. None of Holdings, the
Borrower or any of their respective Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
7.19 ENVIRONMENTAL MATTERS. (a) Holdings, the Borrower and
each of their respective Subsidiaries have complied with, and on the date of
each Credit Event will be in compliance with, all applicable Environmental Laws
and the requirements of any permits issued under such Environmental Laws. There
are no pending or, to the best knowledge of Holdings and the Borrower after due
inquiry, past or threatened Environmental Claims against Holdings, the Borrower
or any of their respective Subsidiaries or any Real Property owned or operated
by Holdings, the Borrower or any of their respective Subsidiaries. There are no
facts, circumstances, conditions or occurrences in respect of any Real Property
owned or operated by Holdings, the Borrower or any of their respective
Subsidiaries that, to the best knowledge of Holdings or the Borrower after due
inquiry, could reasonably be expected (i) to form the basis of an Environmental
Claim against Holdings, the Borrower or any of their respective Subsidiaries or
any such Real Property, or (ii) to cause any such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability of such
Real Property by Holdings, the Borrower or any of their respective Subsidiaries
under any applicable Environmental Law.
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(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property owned
or operated by Holdings, the Borrower or any of their respective Subsidiaries
where such generation, use, treatment or storage has violated or could
reasonably be expected to violate any Environmental Law. Hazardous Materials, to
the best knowledge of Holdings and the Borrower, have not been Released on or
from any Real Property owned or operated by Holdings, the Borrower or any of
their respective Subsidiaries where such Release has violated or could
reasonably be expected to violate any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section
7.19, the representations made in this Section 7.19 shall only be untrue if the
aggregate effect of all failures and noncompliances of the types described above
could reasonably be expected to have a Material Adverse Effect.
7.20 LABOR RELATIONS. Except as set forth on Schedule IX, none
of Holdings, the Borrower nor any of their respective Subsidiaries is engaged in
any unfair labor practice that could reasonably be expected to have a material
adverse effect on Holdings and its Subsidiaries taken as a whole or the Borrower
and there is (i) no unfair labor practice complaint pending against Holdings,
the Borrower or any of their respective Subsidiaries or, to the best knowledge
of Holdings or the Borrower, threatened against any of them, before the National
Labor Relations Board, and no material grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against Holdings, the Borrower or any of their respective Subsidiaries or, to
the best knowledge of Holdings or the Borrower, threatened against any of them,
(ii) no strike, labor dispute, slowdown or stoppage pending against Holdings,
the Borrower or any of their respective Subsidiaries or, to the best knowledge
of Holdings or the Borrower, threatened against Holdings, the Borrower or any of
their respective Subsidiaries and (iii) to the best knowledge of Holdings and
the Borrower, no union representation proceeding is pending with respect to the
employees of Holdings or the Borrower or any of their respective Subsidiaries,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as could not reasonably be
expected to have a Material Adverse Effect.
7.21 PATENTS, LICENSES, FRANCHISES AND FORMULAS. Each of
Holdings, the Borrower and their respective Subsidiaries owns all material
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, and has
obtained assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its business, without any known conflict
with the rights of others which, or the failure to own or obtain which, as the
case may be, would be reasonably likely to result in a Material Adverse Effect.
7.22 INDEBTEDNESS. Schedule V sets forth a true and complete
list of all Indebtedness (excluding (i) the Senior Subordinated Notes and (ii)
the Loans and Letters of Credit) of Holdings, the Borrower and their respective
Subsidiaries as of the Initial Borrowing Date and which is to remain outstanding
after giving effect to the Transaction (the "Existing Indebtedness"), in each
case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
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7.23 TRANSACTION. At the time of consummation thereof, the
Transaction shall have been consummated in all material respects in accordance
with the terms of the respective Documents and all applicable laws. At the time
of consummation of the Transaction, all necessary material consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities required
in order to make or consummate the Transaction will have been obtained, given,
filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained). All applicable waiting
periods with respect thereto have or, prior to the time when required, will
have, expired without, in all such cases, any action being taken by any
competent authority which restrains, prevents, or imposes material adverse
conditions upon the Transaction. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transaction, or the occurrence of any Credit Event or the
performance by Holdings or the Borrower of its obligations under the respective
Credit Documents. All actions taken by Holdings and the Borrower pursuant to or
in furtherance of the Transaction have been taken in all material respects in
compliance with the respective Documents and all applicable laws.
7.24 SPECIAL PURPOSE CORPORATIONS. Each Parent Guarantor and
DelCorp was formed for the purpose of effecting the Transaction and, prior to
the consummation thereof, had no material assets or liabilities except in
connection therewith. Neither Parent Guarantor nor DelCorp engages in business
activities other than the employment of management of the Borrower, except in
connection with its ownership of the equity interest in the Borrower and, in the
case of Holdings, its ownership of the capital stock of DelCorp and WisCorp.
7.25 INSURANCE. Schedule VII sets forth a true and complete
listing of all insurance maintained by Holdings and its Subsidiaries as of the
Initial Borrowing Date, and with the amounts insured (and any deductibles) set
forth therein.
7.26 SENIOR SUBORDINATED NOTES The subordination provisions
contained in the Senior Subordinated Notes and in the other Senior Subordinated
Note Documents are enforceable against the respective Credit Parties party
thereto and the holders of the Senior Subordinated Notes, and all Obligations
and Guaranteed Obligations (as defined in the Subsidiaries Guaranty) are within
the definition of "Senior Indebtedness" or "Guarantor Senior Indebtedness", as
the case may be, included in such subordination provisions.
7.27 YEAR 2000 PROBLEM. Each of Holdings and each of its
Subsidiaries has developed a plan to address any potential Year 2000 Problem and
will, on a timely basis, implement such plan and successfully eliminate any Year
2000 Problem.
SECTION 8. AFFIRMATIVE COVENANTS. Holdings and the Borrower
hereby covenant and agree that on and after the Effective Date and until the
Total Commitments and all Letters of Credit have terminated and the Loans, Notes
and Unpaid Drawings, together with interest, Fees and all other obligations
incurred hereunder and thereunder, are paid in full:
8.01 INFORMATION COVENANTS. Holdings and/or the Borrower will
furnish to the Administrative Agent (with sufficient copies for each of the
Banks) and the Administrative Agent will promptly thereafter furnish to each
Bank:
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(a) MONTHLY REPORTS. Within 45 days after the end of each
fiscal month of Holdings (or, if earlier, at the time delivered by
Holdings to its Board of Directors), the management reports furnished
by Holdings to its Board of Directors, which report shall in any event
include a consolidated balance sheet of Holdings and its Consolidated
Subsidiaries as at the end of such month and the Consolidated EBITDA
for such month, in each case setting forth comparative figures for the
corresponding month in the prior fiscal year.
(b) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the
close of the first three quarterly accounting periods in each fiscal
year of Holdings, (i) the consolidated balance sheets of Holdings and
its Consolidated Subsidiaries as at the end of such quarterly
accounting period and the related consolidated statements of income and
cash flows, in each case for such quarterly accounting period and for
the elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period, and in each case, setting forth
comparative figures for the related periods in the prior fiscal year
and, after the delivery of the first budget pursuant to Section
8.01(e), the budgeted figures for such quarterly periods as set forth
in the respective budget delivered pursuant to Section 8.01(e), all of
which shall be certified by the Chief Financial Officer or Treasurer of
Holdings, subject to normal year-end audit adjustments and (ii)
management's discussion and analysis of the important operational and
financial developments during the fiscal quarter and year-to-date
periods.
(c) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the
close of each fiscal year of Holdings, (i) the consolidated and
consolidating balance sheets of Holdings and its Consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income and retained
earnings and of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year and certified (x) in
the case of such consolidated financial statements, by Coopers &
Xxxxxxx, or such other independent certified public accountants of
recognized national standing reasonably acceptable to the
Administrative Agent, together with a report of such accounting firm
stating that in the course of its regular audit of the financial
statements of Holdings and its Subsidiaries, which audit was conducted
in accordance with generally accepted auditing standards, such
accounting firm obtained no knowledge of any Default or Event of
Default which has occurred and is continuing or, if in the opinion of
such accounting firm such a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof, and (y) in the
case of such consolidating financial statements, by the Chief Financial
Officer or Treasurer of Holdings, and (ii) management's discussion and
analysis of the important operational and financial developments during
such fiscal year.
(d) MANAGEMENT LETTERS. Promptly after the receipt thereof by
Holdings, the Borrower or any of their respective Subsidiaries, a copy
of any "management letter" received by any such Person from its
certified public accountants and the management's responses thereto.
(e) BUDGETS. No later than 30 days following the commencement
of the first day of each fiscal year of Holdings, a budget in form
satisfactory to the Administrative
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Agent prepared by Holdings for (x) each of the twelve months of such
fiscal year prepared in detail and (y) each of the five years
immediately following such fiscal year prepared in summary form, in
each case, of Holdings and its Subsidiaries, accompanied by the
statement of the Chief Financial Officer or Treasurer of Holdings to
the effect that, to the best of his knowledge, the budget is a
reasonable estimate for the period covered thereby.
(f) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Section 8.01(b) and (c), a
certificate of the Chairman of the Board, the President, Chief
Financial Officer or the Treasurer of each of the Borrower and Holdings
to the effect that, to the best of such officer's knowledge, no Default
or Event of Default has occurred and is continuing or, if any Default
or Event of Default has occurred and is continuing, specifying the
nature and extent thereof, which certificate shall, in the case of any
such financial statements delivered in respect of a period ending on
the last day of a fiscal quarter or year of Holdings, (x) set forth the
calculations required to establish whether the Borrower was in
compliance with the provisions of Sections 4.02(f), (g) and (h) (but
with respect to Section 4.02(h) only to the extent delivered with the
financial statements required by Sections 8.01(c)), 9.05, 9.07 and 9.08
through 9.10, inclusive, at the end of such fiscal quarter or year, as
the case may be, (y) if delivered with the financial statements
required by Section 8.01(c), set forth the amount of Excess Cash Flow
for the respective Excess Cash Payment Period and (z) set forth the
calculations required to establish the Applicable Commitment Commission
Percentage and the Applicable Margin for the relevant Margin Adjustment
Period.
(g) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event within five Business Days after an officer of Holdings or the
Borrower obtains knowledge thereof, notice of (i) the occurrence of any
event which constitutes a Default or Event of Default and (ii) any
litigation or governmental investigation or proceeding pending or
threatened (x) against Holdings, the Borrower or any of their
respective Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, (y) with respect to any Indebtedness in excess
of $500,000 of Holdings, the Borrower or any of their respective
Subsidiaries or (z) with respect to any Document.
(h) OTHER REPORTS AND FILINGS. Promptly, copies of all
financial information, proxy materials and other information and
reports, if any, which Holdings, the Borrower or any of their
respective Subsidiaries shall file with the Securities and Exchange
Commission or any successor thereto (the "SEC") or deliver to holders
of its Indebtedness pursuant to the terms of the documentation
governing such Indebtedness (or any trustee, agent or other
representative therefor).
(i) ENVIRONMENTAL MATTERS. Promptly upon, and in any event
within ten Business Days after, an officer of Holdings, the Borrower or
any of their respective Subsidiaries obtains knowledge thereof, notice
of one or more of the following environmental matters which occurs
after the Initial Borrowing Date, unless such environmental matters
could not, individually or when aggregated with all other such
environmental matters, be reasonably expected to have a Material
Adverse Effect:
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(i) any Environmental Claim pending or threatened in
writing against Holdings, the Borrower or any of their
respective Subsidiaries or any Real Property owned or operated
by Holdings, the Borrower or any of their respective
Subsidiaries;
(ii) any condition or occurrence on or arising from any
Real Property owned or operated by Holdings, the Borrower or
any of their respective Subsidiaries that (a) results in
noncompliance by Holdings, the Borrower or any of their
respective Subsidiaries with any applicable Environmental Law
or (b) could reasonably be expected to form the basis of an
Environmental Claim against Holdings, the Borrower or any of
their respective Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property
owned or operated by Holdings, the Borrower or any of their
respective Subsidiaries that could reasonably be expected to
cause such Real Property to be subject to any restrictions on
the ownership, occupancy, use or transferability by Holdings,
the Borrower or any of their respective Subsidiaries of such
Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by Holdings,
the Borrower or any of their respective Subsidiaries as
required by any Environmental Law or any governmental or other
administrative agency; PROVIDED that in any event Holdings
and/or the Borrower shall deliver to the Administrative Agent
all material notices received by it or any of their respective
Subsidiaries from any government or governmental agency under,
or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and Holdings', the Borrower's or such Subsidiary's response
thereto. In addition, the Borrower will provide the Banks with copies
of all material communications with any government or governmental
agency and all material communications with any Person (other than
Holdings', the Borrower's or any Subsidiary's attorneys) relating to
any Environmental Claim of which notice is required to be given
pursuant to this Section 8.01(i), and such detailed reports of any such
Environmental Claim as may reasonably be requested by the Banks.
(j) ANNUAL MEETINGS WITH BANKS. At the request of
Administrative Agent, Holdings shall within 120 days after the close of
each fiscal year of Holdings hold a meeting at a reasonable time and
place selected by Holdings and acceptable to the Administrative Agent
with all of the Banks at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of
Holdings and its Subsidiaries and the budgets presented for the current
fiscal year of Holdings and its Subsidiaries.
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(k) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) with respect to
Holdings, the Borrower or their respective Subsidiaries as the
Administrative Agent or any Bank may reasonably request in writing.
8.02 BOOKS, RECORDS AND INSPECTIONS. Holdings and the Borrower
will, and will cause each of their respective Subsidiaries to, keep proper books
of record and account in which full, true and correct entries in conformity with
generally accepted accounting principles and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities. Holdings and the Borrower will, and will cause each of their
respective Subsidiaries to, permit officers and designated representatives of
any of the Administrative Agent or any Bank to visit and inspect, during regular
business hours and under guidance of officers of Holdings, the Borrower or such
Subsidiary, any of the properties of Holdings and the Borrower or such
Subsidiary, and to examine the books of account of Holdings and the Borrower or
such Subsidiary and discuss the affairs, finances and accounts of Holdings, the
Borrower or such Subsidiary with, and be advised as to the same by, its and
their officers and independent accountants, all upon reasonable advance notice
and at such reasonable times and intervals and to such reasonable extent as the
Administrative Agent or such Bank may request.
8.03 MAINTENANCE OF PROPERTY; INSURANCE. (a) Holdings and the
Borrower will, and will cause each of their respective Subsidiaries to, (i) keep
all property necessary in its business in good working order and condition
(ordinary wear and tear and loss or damage by casualty or condemnation
excepted), (ii) maintain insurance on all its property in at least such amounts
and against at least such risks as is consistent and in accordance with industry
practice and (iii) furnish to each Bank, upon written request, full information
as to the insurance carried.
(b) Holdings and the Borrower will, and will cause their
respective Subsidiaries to, at all times keep their respective property insured
in favor of the Collateral Agent, and all policies or certificates (or certified
copies thereof) with respect to such insurance (and any other insurance
maintained by Holdings, the Borrower or any of their respective Subsidiaries)
(i) shall be endorsed to the Collateral Agent's satisfaction for the benefit of
the Collateral Agent (including, without limitation, by naming the Collateral
Agent as loss payee or as an additional insured), (ii) shall state that such
insurance policies shall not be cancelled without 30 days' prior written notice
thereof by the respective insurer to the Collateral Agent, (iii) shall provide
that the respective insurers irrevocably waive any and all rights of subrogation
with respect to the Collateral Agent and the Secured Creditors, (iv) shall
contain the standard non-contributing mortgage clause endorsement in favor of
the Collateral Agent with respect to hazard liability insurance, (v) shall,
except in the case of public liability insurance, provide that any losses shall
be payable notwithstanding (A) any act or neglect of Holdings, the Borrower or
any of their respective Subsidiaries, (B) the occupation or use of the
properties for purposes more hazardous than those permitted by the terms of the
respective policy, (C) any foreclosure or other proceeding relating to the
insured properties or (D) any change in the title to or ownership or possession
of the insured properties and (vi) shall be deposited with the Collateral Agent.
(c) If Holdings, the Borrower or any of their respective
Subsidiaries shall fail to maintain all insurance in accordance with this
Section 8.03, or if Holdings, the Borrower or any of their respective
Subsidiaries shall fail to so endorse and deposit all policies or certificates
with
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respect thereto, the Administrative Agent and/or the Collateral Agent shall
have the right (but shall be under no obligation), upon ten days advance notice
to Holdings, the Borrower or any of their respective Subsidiaries, as the case
may be, to procure such insurance and the Borrower agrees to reimburse the
Administrative Agent or the Collateral Agent as the case may be, for all costs
and expenses of procuring such insurance.
8.04 CORPORATE FRANCHISES. Holdings and the Borrower will, and
will cause each of their respective Subsidiaries, to do or cause to be done, all
things necessary to preserve and keep in full force and effect its existence and
its material rights, franchises, licenses and patents used in its business;
PROVIDED, HOWEVER, that nothing in this Section 8.04 shall prevent (i) sales of
assets, consolidations or mergers by or involving Holdings, the Borrower or any
of their respective Subsidiaries in accordance with Section 9.02, (ii) the
withdrawal by Holdings, the Borrower or any of their respective Subsidiaries of
their qualification as a foreign corporation in any jurisdiction where such
withdrawal could not reasonably be expected to have a Material Adverse Effect or
(iii) the abandonment by Holdings, the Borrower or any of their respective
Subsidiaries of any rights, franchises, licenses and patents that the Borrower
reasonably determines are not useful to its business.
8.05 COMPLIANCE WITH STATUTES, ETC. Holdings and the Borrower
will, and will cause each of their respective 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, except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
8.06 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) Holdings and the
Borrower will comply, and will cause each of their respective Subsidiaries to
comply, in all material respects with all Environmental Laws applicable to the
ownership or use of its Real Property now or hereafter owned or operated by
Holdings, the Borrower or any of their respective Subsidiaries, will within a
reasonable time-period pay or cause to be paid all costs and expenses incurred
in connection with such compliance (except to the extent being contested in good
faith), and will keep or cause to be kept all such Real Property free and clear
of any Liens imposed pursuant to such Environmental Laws. None of Holdings, the
Borrower nor any of their respective 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 Real Property now or hereafter
owned or operated by Holdings, the Borrower or any of their respective
Subsidiaries, or transport or permit the transportation of Hazardous Materials
to or from any such Real Property except in material compliance with all
applicable Environmental Laws and reasonably required in connection with the
operation, use and maintenance of any such Real Property or otherwise in
connection with their businesses.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Borrower will provide, at the
Borrower's sole cost and expense, an environmental site assessment report
concerning any Real Property now or hereafter owned or operated by Holdings, the
Borrower or any of their respective Subsidiaries, prepared by an environmental
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consulting firm reasonably acceptable to the Administrative Agent, indicating
the presence or absence of Hazardous Materials and the potential cost of any
removal or remedial action in connection with any Hazardous Materials on such
Real Property; PROVIDED, that such request may be made only if (i) there has
occurred and is continuing an Event of Default, (ii) the Administrative Agent or
the Required Banks reasonably believe that Holdings, the Borrower or any such
Real Property is not in compliance with Environmental Law and such circumstances
could reasonably be expected to have a Material Adverse Effect, or (iii)
circumstances exist that reasonably could be expected to form the basis of a
material Environmental Claim against Holdings, the Borrower or any such Real
Property. If the Borrower fails to provide the same within 90 days after such
request was made, the Administrative Agent may order the same, and the Borrower
shall grant and hereby grants to the Administrative Agent and the Banks and
their agents access to such Real Property and specifically grants the
Administrative Agent and the Banks an irrevocable non-exclusive license, subject
to the rights of tenants, to undertake such an assessment, all at the Borrower's
expense.
8.07 ERISA. As soon as reasonably possible and, in any event,
within ten (10) days after Holdings, the Borrower or any of their respective
Subsidiaries or any ERISA Affiliate knows or has reason to know of the
occurrence of any of the following, Holdings or the Borrower will deliver to
each of the Banks a certificate of the chief financial officer of Holdings or
the Borrower, as the case may be, setting forth the full details as to such
occurrence and the action, if any, that Holdings, the Borrower, such Subsidiary
or such ERISA Affiliate is required or proposes to take, together with any
notices required or proposed to be given to or filed with or by Holdings, the
Borrower, the Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant or
the Plan administrator with respect thereto: that a Reportable Event has
occurred (except to the extent that Holdings or the Borrower has previously
delivered to the Banks a certificate and notices (if any) concerning such event
pursuant to the next clause hereof); that a contributing sponsor (as defined in
Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject
to the advance reporting requirement of PBGC Regulation Section 4043.61 (without
regard to subparagraph (b)(1) thereof), and an event described in subsection
.62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is
reasonably expected to occur with respect to such Plan within the following 30
days; that an accumulated funding deficiency, within the meaning of Section 412
of the Code or Section 302 of ERISA, has been incurred or an application may be
or has been made for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of ERISA
with respect to a Plan; that any contribution required to be made with respect
to a Plan or Foreign Pension Plan has not been timely made and such failure
could result in a material liability for Holdings, the Borrower or any of their
respective Subsidiaries; that a Plan has been or may be reasonably expected to
be terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be
reasonably expected to be or have been instituted to terminate or appoint a
trustee to administer a Plan which is subject to Title IV of ERISA; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that Holdings, the Borrower, any of their
respective Subsidiaries or any ERISA Affiliate will or may reasonably expect to
incur any liability (including any indirect, contingent, or secondary liability)
to or on account of the termination of or
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withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980
of the Code or Section 409 or 502(i) or 502(l) of ERISA or with respect to a
group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2)
of the Code) under Section 4980B of the Code; or that Holdings, the Borrower, or
any of their respective Subsidiaries may incur any material liability pursuant
to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan or any Foreign Pension Plan. Upon
request, the Borrower will deliver to any of the Banks (i) a complete copy of
the annual report (on Internal Revenue Service Form 5500-series) of each Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service and (ii) copies of any records, documents or other information that must
be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA. In addition to any certificates or notices delivered to the Banks
pursuant to the first sentence hereof, copies of annual reports and any records,
documents or other information required to be furnished to the PBGC, and any
material notices received by Holdings, the Borrower, any of their respective
Subsidiaries or any ERISA Affiliate with respect to any Plan or Foreign Pension
Plan shall be delivered to the Banks no later than ten (10) days after the date
such annual report has been filed with the Internal Revenue Service or such
records, documents and/or information has been furnished to the PBGC or such
notice has been received by Holdings, the Borrower, the Subsidiary or the ERISA
Affiliate, as applicable.
8.08 END OF FISCAL YEARS; FISCAL QUARTERS. Holdings shall
cause (i) each of its, and each of its Subsidiaries', fiscal years to end on
December 31 and (ii) its fiscal quarters to end on a date which is within one
week of March 31, June 30, September 30 and December 31.
8.09 PERFORMANCE OF OBLIGATIONS. Each of Holdings and the
Borrower will, and will cause each of its Subsidiaries to, perform all of its
obligations under the terms of each mortgage, indenture, security agreement and
other debt instrument by which it is bound, except such non-performances as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
8.10 PAYMENT OF TAXES. Each of Holdings and the Borrower will
pay and discharge, and will cause each of their respective Subsidiaries to pay
and discharge, all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits, or upon any properties belonging to it,
prior to the date on which penalties attach thereto, and all lawful claims for
sums that have become due and payable which, if unpaid, might become a Lien not
otherwise permitted under Section 9.01(i), PROVIDED, that none of Holdings, the
Borrower nor any of their respective Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with GAAP.
8.11 OWNERSHIP OF SUBSIDIARIES. Holdings shall at all times
own 100% of the outstanding capital stock of DelCorp and WisCorp and shall cause
DelCorp and WisCorp to collectively own at all times 100% of the membership
interests in the Borrower. The Borrower
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shall directly or indirectly own (except to the extent permitted by Section
9.13(b)(iii)) 100% of the capital stock of each Subsidiary of Holdings other
than the Borrower, DelCorp and WisCorp.
8.12 ADDITIONAL SECURITY; FURTHER ASSURANCES; SURVEYS. (a)
Holdings and the Borrower will, and will cause each of their respective Domestic
Wholly-Owned Subsidiaries to, grant to the Collateral Agent security interests
and mortgages (an "Additional Mortgage") in such Real Property (excluding Real
Property where the fair market value thereof is less than $1,000,000) of
Holdings, the Borrower or any of their respective Domestic Wholly-Owned
Subsidiaries as are not covered by the original Mortgages, to the extent
acquired after the Initial Borrowing Date, and as may be requested from time to
time by the Administrative Agent or the Required Banks (each such Real Property,
an "Additional Mortgaged Property"). All such Additional Mortgages shall be
granted pursuant to documentation substantially in the form of the Mortgages
delivered to the Administrative Agent on the Initial Borrowing Date or in such
other form as is reasonably satisfactory to the Administrative Agent and shall
constitute valid and enforceable perfected Liens superior to and prior to the
rights of all third Persons and subject to no other Liens except as are
permitted by Section 9.01 at the time of perfection thereof. The Additional
Mortgages or instruments related thereto shall be duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional Mortgages and all taxes, fees and other charges
payable in connection therewith shall be paid in full.
(b) Holdings and the Borrower will, and will cause each of
their respective Domestic Wholly-Owned Subsidiaries to, at the expense of the
Borrower, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports
and other assurances or instruments and take such further steps relating to the
Collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require pursuant to this Section 8.12. Additionally, upon the request
of the Collateral Agent or the Required Banks, Holdings and the Borrower shall
take, or cause to be taken such action as may be requested in order to perfect
(or maintain the perfection of) the security interests (or take any analogous
actions under the applicable provisions of local law in order to protect such
security interests) in any Collateral located outside the U.S., in each case to
the extent such actions are permitted to be taken under the laws of the
applicable jurisdictions. Furthermore, Holdings and the Borrower shall cause to
be delivered to the Collateral Agent such opinions of counsel, title insurance
and other related documents as may be reasonably requested by the Collateral
Agent to assure itself that this Section 8.12 has been complied with.
(c) Holdings and the Borrower agree to cause each Domestic
Wholly-Owned Subsidiary established or created in accordance with Section 9.14
to execute and deliver, (i) in the case of the first such Subsidiary so
established or created (unless a Subsidiaries Guaranty has been executed and
delivered prior to such date pursuant to Section 5.10), the Subsidiaries
Guaranty and (ii) otherwise, a guaranty of all Obligations and all obligations
under Interest Rate Protection or Other Hedging Agreements in substantially the
form of the Subsidiaries Guaranty.
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(d) The Borrower agrees to pledge and deliver, or cause to be
pledged and delivered, all of the capital stock of each new Subsidiary
(excluding that portion of the voting stock of any Foreign Subsidiary which
would be in excess of 65% of the total outstanding voting stock of such Foreign
Subsidiary) established or created after the Initial Borrowing Date, to the
extent owned by Holdings, the Borrower or any Domestic Wholly-Owned Subsidiary,
to the Collateral Agent for the benefit of the Secured Creditors pursuant to the
Pledge Agreement.
(e) Holdings and the Borrower will cause each Domestic
Wholly-Owned Subsidiary established or created in accordance with Section 9.14
to grant to the Collateral Agent a first priority (subject to Permitted Liens)
Lien on property (tangible and intangible) of such Subsidiary upon terms and
with exceptions similar to those set forth in the Security Documents as
appropriate, and satisfactory in form and substance to the Borrower, the
Administrative Agent and Required Banks. Holdings and the Borrower shall cause
each such Domestic Wholly-Owned Subsidiary, at its own expense, to execute,
acknowledge and deliver, or cause the execution, acknowledgment and delivery of,
and thereafter register, file or record in any appropriate governmental office,
any document or instrument reasonably deemed by the Collateral Agent to be
necessary or desirable for the creation and perfection of the foregoing Liens.
Holdings and the Borrower will cause each of such Domestic Wholly-Owned
Subsidiaries to take all actions reasonably requested by the Administrative
Agent (including, without limitation, the filing of UCC-1's) in connection with
the granting of such security interests.
(f) If requested by the Required Lenders (which request may be
made only during the continuance of an Event of Default), within 15 days of such
request Holdings agrees to cause DelCorp to execute and deliver a guaranty of
all Obligations and all obligations under Interest Rate Protection or Other
Hedging Agreements in substantially the form of the Parent Guaranty and to grant
to the Collateral Agent a first priority (subject to Permitted Liens) Lien on
property (tangible and intangible) of DelCorp upon terms and with exceptions
similar to those set forth in the Security Documents as appropriate, and
satisfactory in form and substance to Administrative Agent and Required Banks.
Holdings shall cause DelCorp, at its own expense, to execute, acknowledge and
deliver, or cause the execution, acknowledgment and delivery of, and thereafter
register, file or record in any appropriate governmental office, any document or
instrument reasonably deemed by the Collateral Agent to be necessary or
desirable for the creation and perfection of the foregoing Liens. Holdings will
cause DelCorp to take all actions reasonably requested by the Administrative
Agent (including, without limitation, the filing of UCC-1's) in connection with
the granting of such security interests.
(g) The security interests required to be granted pursuant to
this Section 8.12 shall be granted pursuant to security documentation (which
shall be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable) or otherwise
satisfactory in form and substance to the Collateral Agent and the Borrower and
shall constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens except such Liens as
are permitted by Section 9.01. The Additional Security Documents and other
instruments related thereto shall be duly recorded or filed in such manner and
in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens, in favor of the Collateral Agent for the benefit
of the respective Secured Creditors, required to be granted pursuant to the
Additional Security
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Documents and all taxes, fees and other charges payable in connection therewith
shall be paid in full by the Borrower. At the time of the execution and delivery
of the Additional Security Documents, the Borrower shall cause to be delivered
to the Collateral Agent such opinions of counsel, Mortgage Policies, title
surveys, real estate appraisals and other related documents as may be reasonably
requested by the Administrative Agent or the Required Banks to assure themselves
that this Section 8.12 has been complied with.
(h) Each of Holdings and the Borrower agrees that each action
required above by Section 8.12 (a) or (b) shall be completed as soon as
possible, but in no event later than 90 days after such action is requested to
be taken by the Administrative Agent or the Required Banks. As is provided in
Section 8.12(f), Holdings agrees that each action required by such Section shall
be completed with 15 days of the Required Bank's request. Each of Holdings and
the Borrower further agrees that each action required by Section 8.12(c), (d),
(e) and (g) with respect to the creation or acquisition of a new Subsidiary
shall be completed contemporaneously with (or, in the case of any documents or
instruments to be registered, filed or recorded, within 10 days of) the creation
of such new Subsidiary.
8.13 INTEREST RATE PROTECTION. No later than the 30th day
after the Initial Borrowing Date, the Borrower shall enter into, and for a
minimum average life of three years thereafter maintain, Interest Rate
Protection Agreements reasonably acceptable to the Administrative Agent
establishing a fixed or maximum interest rate acceptable to the Administrative
Agent for an aggregate amount with respect to the Term Loans outstanding from
time to time as is equal to $25,000,000.
8.14 FOREIGN SUBSIDIARIES SECURITY. If following a change in
the relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower acceptable to the Administrative Agent and the Required Banks does not
within 30 days after a request from the Administrative Agent or the Required
Banks deliver to the Administrative Agent evidence, in form and substance
satisfactory to the Administrative Agent and the Required Banks, with respect to
any Foreign Subsidiary which has not already had all of its stock pledged
pursuant to the Pledge Agreement that a pledge of 66-2/3% or more of the total
combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote, would cause the undistributed earnings of such Foreign
Subsidiary as determined for Federal income tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary's United States parent for Federal
income tax purposes, then that portion of such Foreign Subsidiary's outstanding
capital stock not theretofore pledged pursuant to the Pledge Agreement shall be
pledged to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Pledge Agreement (or another pledge agreement in substantially
similar form, if needed), to the extent that the entering into such Pledge
Agreement is permitted by the laws of the respective foreign jurisdiction and
with all documents delivered pursuant to this Section 8.14 to be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Banks.
8.15 MAINTENANCE OF CORPORATE SEPARATENESS. Holdings will, and
will cause each of its Subsidiaries to, satisfy customary corporate formalities,
including the holding of regular board of directors' and shareholders' meetings
or action by directors or shareholders
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without a meeting and the maintenance of corporate offices and records. Neither
Holdings 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
Holdings or any of its Subsidiaries being ignored, or in the assets and
liabilities of Holdings or any of its Subsidiaries being substantively
consolidated with those of any other such Person in a bankruptcy, reorganization
or other insolvency proceeding.
8.16 YEAR 2000 COMPATIBILITY. Holdings will, and will cause
each of its Subsidiaries to, take all action reasonably necessary to assure that
each of the Holdings' and its Subsidiaries' computer-based systems are able to
operate and effectively process data including datafields requiring references
to dates on and after January 2000 and to eliminate any potential Year 2000
Problem.
SECTION 9. NEGATIVE COVENANTS. Holdings and the Borrower
covenant and agree that on and after the Effective Date and until the Total
Commitments and all Letters of Credit have terminated and the Loans, Notes and
Unpaid Drawings, together with interest, Fees and all other Obligations incurred
hereunder and thereunder, are paid in full:
9.01 LIENS. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to Holdings or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; PROVIDED that the provisions of this Section 9.01
shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with generally accepted accounting
principles in the United States (or the equivalent thereof in any
country in which a Foreign Subsidiary is doing business, as
applicable);
(ii) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's and mechanics'
liens and other similar Liens arising in the ordinary course of
business, and (x) which do not in the aggregate materially detract from
the value of the property or assets of Holdings or such Subsidiary and
do not materially impair the use thereof in the operation of the
business of Holdings or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings, which proceedings
(or orders entered in connection with such proceedings) have the effect
of preventing the forfeiture or sale of the property or assets subject
to any such Lien;
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(iii) Liens in existence on the Effective Date which are listed,
and the property subject thereto described, in Schedule IV, but only to
the respective date, if any, set forth in such Schedule IV for the
removal and termination of any such Liens, plus renewals and extensions
of such Liens to the extent set forth on Schedule IV, PROVIDED that (x)
the aggregate principal amount of the Indebtedness, if any, secured by
such Liens does not increase from that amount outstanding at the time
of any such renewal or extension and (y) any such renewal or extension
does not encumber any additional assets or properties of Holdings or
any of its Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) licenses, leases or subleases granted to other Persons in
the ordinary course of business not materially interfering with the
conduct of the business of Holdings and its Subsidiaries taken as a
whole;
(vii) Liens placed upon assets used in the ordinary course of
business of the Borrower or any of its Subsidiaries at the time of
acquisition thereof by the Borrower or any such Subsidiary or within 90
days thereafter to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof, PROVIDED that (x) the aggregate
outstanding principal amount of all Indebtedness secured by Liens
permitted by this clause (vii) shall not at any time exceed $7,500,000
and (y) in all events, the Lien encumbering the assets so acquired does
not encumber any other asset (other than proceeds thereof) of the
Borrower or such Subsidiary;
(viii) easements, rights-of-way, restrictions (including zoning
restrictions), covenants, encroachments, protrusions and other similar
charges or encumbrances, and minor title deficiencies, in each case
whether now or hereafter in existence, not securing Indebtedness and
not materially interfering with the conduct of the business of the
Holdings and its Subsidiaries taken as a whole or the Borrower;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Borrower or any
of its Subsidiaries in the ordinary course of business;
(x) Liens arising out of judgments or awards in respect of
which the Borrower or any of its Subsidiaries shall in good faith be
prosecuting an appeal or proceedings for review in respect of which
there shall have been secured a subsisting stay of execution pending
such appeal or proceedings, provided that the aggregate amount of all
such judgments or awards does not exceed $2,500,000 at any time
outstanding;
(xi) statutory and common law landlords' liens under leases or
subleases to which the Borrower or any of its Subsidiaries is a party;
(xii) Liens (other than any Lien imposed by ERISA) (x) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemploy-
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ment insurance and other types of social security, (y) to secure the
performance of tenders, statutory obligations (other than excise
taxes), surety, stay, customs and appeal bonds, statutory bonds, bids,
leases, government contracts, trade contracts, performance and return
of money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money) or (z) arising by virtue of deposits
made in the ordinary course of business to secure liability for
premiums to insurance carriers, PROVIDED that the aggregate amount of
deposits at any time pursuant to sub-clause (y) and sub-clause (z)
shall not exceed $2,500,000 in the aggregate; and
(xiii) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this
Agreement.
In connection with the granting of Liens of the type described in clauses (vii)
and (viii) of this Section 9.01 by the Borrower of any of its Subsidiaries, the
Administrative Agent and the Collateral Agent shall be authorized to take any
actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets (including
Real Property) subject to such Liens).
9.02 CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC.
Holdings will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any sale-leaseback transactions, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory, materials,
equipment and intangible assets in the ordinary course of business) of any
Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may (x) in the
ordinary course of business, sell, lease or otherwise dispose of any
assets which, in the reasonable judgment of such Person, are obsolete,
worn out or otherwise no longer useful in the conduct of such Person's
business and (y) sell, lease or otherwise dispose of any other assets,
PROVIDED that the aggregate Net Sale Proceeds of all assets subject to
sales or other dispositions pursuant to this clause (ii) shall not
exceed $5,000,000 in any four consecutive fiscal quarters of the
Borrower;
(iii) investments may be made to the extent permitted by
Section 9.05;
(iv) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property in the ordinary course of business
(so long as any such lease does not create a Capitalized Lease
Obligation except to the extent permitted by Section 9.04 (vii));
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(v) each of the Borrower and its Subsidiaries may make sales or
transfers of inventory in the ordinary course of business and
consistent with past practices;
(vi) the Borrower and its Subsidiaries may sell or discount, in
each case without recourse and in the ordinary course of business,
overdue accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof
consistent with customary industry practice (and not as part of any
bulk sale);
(vii) licenses or sublicenses by the Borrower and its
Subsidiaries of software, trademarks and other intellectual property in
the ordinary course of business and which do not materially interfere
with the business of Holdings and its Subsidiaries taken as a whole or
the Borrower shall be permitted;
(viii) the Acquisition shall be permitted; and
(ix) the Borrower or any Domestic Wholly-Owned Subsidiary of the
Borrower may transfer assets or lease to or acquire or lease assets
from the Borrower or any other Domestic Wholly-Owned Subsidiary or any
Domestic Wholly-Owned Subsidiary may be merged into the Borrower or any
other Domestic Wholly-Owned Subsidiary of the Borrower.
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted by
this Section 9.02, such Collateral (unless sold to Holdings or a Subsidiary of
Holdings) shall be sold free and clear of the Liens created by the Security
Documents, and the Administrative Agent and Collateral Agent shall be authorized
to take any actions deemed appropriate in order to effect the foregoing.
9.03 DIVIDENDS. Holdings shall not, and shall not permit any
of its Subsidiaries to, authorize, declare or pay any Dividends with respect to
Holdings or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower (x) may pay cash Dividends
to the Borrower or any Wholly-Owned Subsidiary of the Borrower and (y)
if such Subsidiary is not a Wholly-Owned Subsidiary, may pay cash
Dividends to its shareholders generally so long as the Borrower or its
respective Subsidiary which owns the equity interest or interests in
the Subsidiary paying such Dividends receives at least its
proportionate share thereof (based upon its relative holdings of equity
interests in the Subsidiary paying such Dividends and taking into
account the relative preferences, if any, of the various classes of
equity interests in such Subsidiary);
(ii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), Holdings
may repurchase outstanding shares of its common stock (or options to
purchase such common stock) following the death, disability, retirement
or termination of employment of employees, officers or directors of
Holdings or any of its Subsidiaries, PROVIDED that (x) all amounts used
to effect such repurchases are obtained by Holdings from a
substantially concurrent issuance of its com-
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mon stock (or options to purchase such common stock) to other
employees, members of management, executive officers or directors of
Holdings or any of its Subsidiaries or (y) to the extent the proceeds
used to effect any repurchase pursuant to this clause (y) are not
obtained as described in preceding clause (x), the aggregate amount of
Dividends paid by Holdings pursuant to this clause (ii) (exclusive of
amounts paid as described pursuant to preceding clause (x)) shall not
exceed $1,000,000 in the fiscal year of Holdings ended December 31,
1999, $2,000,000 in the fiscal year of Holdings ended December 31, 2000
or $3,000,000 in any subsequent fiscal year of Holdings and shall not
exceed $10,000,000 in the aggregate after the Initial Borrowing Date
and provided, further, that at the time of such repurchase the
Consolidated Fixed Charge Coverage Ratio of the Borrower (as defined in
the Senior Subordinated Note Indenture as in effect on the Initial
Borrowing Date) is greater than 2.0 to 1.0;
(iii) the Borrower may pay cash Dividends to DelCorp and WisCorp
for the purpose of paying, so long as all proceeds thereof are promptly
used to fund a Dividend to Holdings and used by Holdings to pay, its
reasonable operating expenses incurred in the ordinary course of
business and other corporate overhead costs and expenses directly
attributable to the operations of the Borrower and its Subsidiaries
(including, without limitation, legal and accounting expenses and
similar expenses), PROVIDED that the aggregate amount of Dividends paid
by the Borrower pursuant to this clause (iii) shall not exceed in any
fiscal year of Holdings the sum of $750,000 and the amount required to
be paid by Holdings in such fiscal year to outside advisers such as
lawyers and accountants which are not Affiliates of Holdings;
(iv) so long as the Borrower is treated as a partnership for
federal income purposes, the Borrower may pay cash Dividends to DelCorp
and WisCorp to enable DelCorp and WisCorp to make tax payments with
respect to the Borrower's income in any fiscal year, PROVIDED that the
aggregate amount of cash Dividends paid pursuant to this clause (iv)
shall not exceed with respect to any fiscal year of the Borrower the
lesser of the aggregate amount of income tax payments required to be
made by all such members for such fiscal year which are attributable to
the income of the Borrower and such members' ownership interest in the
Borrower; and
(v) so long as there shall exist no Default or Event of
Default, the Borrower may pay cash Dividends to DelCorp and WisCorp for
the purpose of enabling Holdings to pay the Dividends referred to in
clause (ii) above, so long as all proceeds thereof are promptly used to
fund a Dividend to Holdings and used by Holdings to pay such Dividends;
and
9.04 INDEBTEDNESS. Holdings will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
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(ii) Indebtedness of the Borrower pursuant to the Senior
Subordinated Notes in an aggregate principal amount not to exceed
$110,000,000 less the aggregate amount of all repayments of Senior
Subordinated Notes effected after the Initial Borrowing Date;
(iii) Existing Indebtedness shall be permitted to the extent
actually outstanding on the Initial Borrowing Date and as the same is
listed on Schedule V, but no refinancings or renewals thereof;
(iv) accrued expenses and trade accounts payable incurred in
the ordinary course;
(v) Indebtedness under Interest Rate Protection Agreements
entered into in compliance with Section 8.13, and such other
non-speculative Interest Rate Protection Agreements which may be
entered into from time to time by the Borrower and which the Borrower
in good faith believes will provide protection against fluctuations in
interest rates with respect to outstanding floating rate Indebtedness
then outstanding, and permitted to remain outstanding, pursuant to the
other provisions of this Section 9.04;
(vi) Indebtedness subject to Liens permitted under Section
9.01(vii), so long as the outstanding amount of such Indebtedness does
not exceed the amount provided in said Section 9.01(vii);
(vii) intercompany Indebtedness of the Borrower and its
Subsidiaries outstanding to the extent permitted by Section 9.05(vi);
(viii) Indebtedness evidenced by Other Hedging Agreements
entered into pursuant to Section 9.05(v);
(ix) Indebtedness under performance bonds, letter of credit
obligations to provide security for worker's compensation claims and
bank overdrafts, in each case incurred in the ordinary course of
business, PROVIDED that any obligations arising in connection with such
bank overdraft Indebtedness is extinguished within five Business Days;
(x) additional Indebtedness of Foreign Subsidiaries to the
extent not permitted by the foregoing clauses of this Section 9.04 not
to exceed in aggregate principal amount at any time outstanding the
lesser of (A) $10,000,000 and (B) the Foreign Loan Amount at such time;
and
(xi) additional Indebtedness of the Borrower and its
Subsidiaries to the extent not permitted by the foregoing clauses of
this Section 9.04 not to exceed in aggregate principal amount at any
time outstanding, the lesser of (a) the amount by which the Total
Revolving Loan Commitment exceeds the sum of the aggregate outstanding
principal amount of Revolving Loans, Swingline Loans and Letter of
Credit Outstandings and the Foreign Loan Amount at such time and (b)
$1,000,000.
9.05 ADVANCES, INVESTMENTS AND LOANS. Holdings will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or
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make any capital contribution to, any other Person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract, or hold
any cash or Cash Equivalents, (each of the foregoing an "Investment" and,
collectively, "Investments") except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them;
(ii) the Borrower and its Subsidiaries may acquire and hold cash
and Cash Equivalents, PROVIDED that during any time that Revolving
Loans of Non- Defaulting Banks or Swingline Loans are outstanding, the
aggregate amount of cash and Cash Equivalents permitted to be held by
the Borrower and its Domestic Subsidiaries shall not exceed $2,000,000
for any period of 45 consecutive days (or any period of ten consecutive
days at any time that a Default or Event of Default is continuing);
(iii) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans and advances) shall not exceed $1,000,000;
(iv) the Borrower may enter into Interest Rate Protection
Agreements to the extent permitted in Section 9.04(vi);
(v) the Borrower may enter into and perform its obligations
under Other Hedging Agreements entered into in the ordinary course of
business and so long as any such Other Hedging Agreement is not
speculative in nature and is (x) related to income derived from foreign
operations of the Borrower or any Subsidiary or otherwise related to
purchases permitted hereunder from foreign suppliers or (y) entered
into to protect the Borrower and/or its Subsidiaries against
fluctuations in the prices of raw materials used in their businesses;
(vi) any Wholly-Owned Subsidiary may make intercompany loans to
the Borrower or any Wholly-Owned Subsidiary and the Borrower may make
intercompany loans and advances to any Wholly-Owned Subsidiary,
PROVIDED that (x) any promissory notes evidencing such intercompany
loans shall be pledged (and delivered) by the Borrower or the
respective Domestic Wholly-Owned Subsidiary that is the lender of such
intercompany loan as Collateral pursuant to the applicable Pledge
Agreement, (y) neither the Borrower nor any Domestic Subsidiaries of
the Borrower may make loans to any Foreign Subsidiaries of the Borrower
pursuant to this clause (vi) and (z) any loans made by any Foreign
Subsidiaries to the Borrower or any of its Domestic Subsidiaries
pursuant to this clause (vi) shall be subordinated to the obligations
of the Credit Parties pursuant to subordination provisions in
substantially the form of Exhibit M hereto;
(vii) the Borrower and it Subsidiaries may sell or transfer
assets to the extent permitted by Section 9.02;
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(viii) the Borrower may establish Subsidiaries to the extent
permitted by Section 9.14; and
(ix) Holdings may make the equity contributions in DelCorp and
WisCorp and DelCorp and WisCorp may make equity contributions in the
Borrower.
9.06 TRANSACTIONS WITH AFFILIATES. Holdings will not, and will
not permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Holdings or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to
Holdings or such Subsidiary as would reasonably be obtained by Holdings or such
Subsidiary at that time in a comparable arm's-length transaction with a Person
other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section
9.03; and
(ii) loans may be made and other transactions may be entered
into between the Borrower and its Subsidiaries to the extent permitted
by Sections 9.04 and 9.05.
9.07 CAPITAL EXPENDITURES. (a) Holdings will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
the Borrower and its Subsidiaries may make Capital Expenditures during any
period in an aggregate amount not to exceed (x) $4 million during the period
commencing on the Effective Date and ending on December 31 1998; (y) $6.5
million during the calendar year ending on December 31, 1999; and (z) $5 million
for each calendar year thereafter.
(b) In addition to the Capital Expenditures permitted pursuant
to preceding clause (a) the Borrower and its Subsidiaries may make additional
Capital Expenditures consisting of the reinvestment of proceeds of Recovery
Events not required to be applied to prepay the Loans pursuant to Section
4.02(g).
9.08 CONSOLIDATED INTEREST COVERAGE RATIO. Holdings will not
permit the Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters, in each case taken as one accounting period, ended
on the last day of a fiscal quarter described below to be less than the amount
set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Closest to Ratio
------------------------------- -----
September 30, 1998 1.35:1.00
December 31, 1998 1.50:1.00
March 31, 1999 1.55:1.00
June 30, 1999 1.60:1:00
September 30, 1999 1.70:1.00
December 31, 1999 1.80:1.00
March 31, 2000 1.90:1.00
June 30, 2000 2.00:1.00
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September 30, 2000 2.15:1.00
December 31, 2000 2.20:1.00
March 31, 2001 2.25:1.00
June 30, 2001 2.30:1.00
September 30, 2001 2.45:1.00
December 31, 2001 2.55:1.00
March 31, 2002 2.65:1.00
June 30, 2002 2.75:1.00
September 30, 2002 2.85:1.00
December 31, 2002 and thereafter 3.00:1.00
9.09 MAXIMUM LEVERAGE RATIO. Holdings will not permit the
Leverage Ratio at any time during a fiscal quarter set forth below to be greater
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Closest to Ratio
------------------------------- -----
December 31, 1998 6.80:1.00
March 31, 1999 6.70:1.00
June 30, 1999 6.55:1.00
September 30, 1999 6.20:1.00
December 31, 1999 5.85:1.00
March 31, 2000 5.75:1.00
June 30, 2000 5.60:1.00
September 30, 2000 5.40:1.00
December 31, 2000 5.10:1.00
March 31, 2001 4.90:1.00
June 30, 2001 4.75:1.00
September 30, 2001 4.50:1.00
December 31, 2001 4.20:1.00
March 31, 2002 4.10:1.00
June 30, 2002 4.10:1.00
September 30, 2002 3.90:1.00
December 31, 2002 and thereafter 3.75:1.00
9.10 MINIMUM EBITDA. Holdings will not permit Consolidated
EBITDA for any period of four consecutive fiscal quarters, in each case taken as
one accounting period, ended on the last day of a fiscal quarter described below
to be less than the amount set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Closest to Minimum EBITDA
------------------------------- --------------
December 31, 1998 $30 million
March 31, 1999 $31 million
June 30, 1999 $33 million
September 30, 1999 $34.5 million
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December 31, 1999 $36 million
March 31, 2000 $37 million
June 30, 2000 $40 million
September 30, 2000 $42 million
December 31, 2000 $44 million
March 31, 2001 $45 million
June 30, 2001 $47 million
September 30, 2001 $49 million
December 31, 2001 $52 million
March 31, 2002 $53 million
June 30, 2002 $54 million
September 30, 2002 $55 million
December 31, 2002 $56 million
March 31, 2003 $57 million
June 30, 2003 $58 million
September 30, 2003 $60 million
December 31, 2003 and thereafter $62 million
9.11 LIMITATION ON MODIFICATIONS OF INDEBTEDNESS;
MODIFICATIONS OF CERTIFICATE OF INCORPORATION, BY-LAWS AND CERTAIN OTHER
AGREEMENTS; ETC. Holdings will not, and will not permit any of its Subsidiaries
to, (i) amend or modify, or permit the amendment or modification of, any
provision of the Existing Indebtedness or of any agreement (including, without
limitation, any purchase agreement, indenture, loan agreement or security
agreement) relating thereto other than any amendments or modifications to the
Existing Indebtedness which do not in any way adversely affect the interests of
the Banks and are otherwise permitted under Section 9.04(iv), (ii) make (or give
any notice in respect thereof) any voluntary or optional payment or prepayment
on or redemption or acquisition for value of, or any prepayment or redemption as
a result of any asset sale, change of control or similar event of, any Senior
Subordinated Note, (iii) amend or modify, or permit the amendment or
modification of, any provision of any Senior Subordinated Notes or any agreement
(including, without limitation, any Senior Subordinated Note Document) relating
thereto other than amendments or modifications which do not in any way adversely
affect the interests of the Banks and which are effected to make technical
corrections to the respective documentation, (iv) amend or modify, or permit the
amendment or modification of the Acquisition Agreement or any other Acquisition
Document, except for amendments or modifications which are not in any way
adverse in any material respect to the interests of the Banks or (v) amend,
modify or change its Certificate of Incorporation (including, without
limitation, by the filing or modification of any certificate of designation) or
By-Laws (or equivalent organizational documents) or any agreement entered into
by it, with respect to its capital stock (or equivalent interests) (including
any Shareholders' Agreement), or enter into any new agreement with respect to
its capital stock, other than any amendments, modifications or changes pursuant
to this clause (v) or any such new agreements pursuant to this clause (v) which
do not in any way adversely affect in any material respect the interests of the
Banks.
9.12 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such
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Subsidiary to (a) pay dividends or make any other distributions on its capital
stock or any other interest or participation in its profits owned by the
Borrower or any Subsidiary of the Borrower, or pay any Indebtedness owed to the
Borrower or a Subsidiary of the Borrower, (b) make loans or advances to the
Borrower or any of the Borrower's Subsidiaries or (c) transfer any of its
properties or assets to the Borrower or any of the Borrower's Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii)
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest of the Borrower or a Subsidiary of the Borrower, (iv)
customary provisions restricting assignment of any agreement entered into by the
Borrower or a Subsidiary of the Borrower in the ordinary course of business, (v)
any holder of a Permitted Lien may restrict the transfer of the asset or assets
subject thereto and (vi) restrictions which are not more restrictive than those
contained in this Agreement contained in any documents governing any
Indebtedness incurred after the Effective Date in accordance with the provisions
of this Agreement.
9.13 LIMITATION ON ISSUANCE OF CAPITAL STOCK. (a) Holdings
will not issue any capital stock which is not Qualified Capital Stock.
(b) Holdings will not permit any of its Subsidiaries to issue
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and additional issuances which do not
decrease the percentage ownership of Holdings or any of its Subsidiaries in any
class of the capital stock of such Subsidiary, (iii) in the case of Foreign
Subsidiaries of the Borrower, to qualify directors to the extent required by
applicable law, and (iv) Subsidiaries of the Borrower formed after the Effective
Date pursuant to Section 9.15 may issue capital stock to the Borrower or the
respective Subsidiary of the Borrower which is to own such stock in accordance
with the requirements of Section 8.11. All capital stock issued in accordance
with this Section 9.14(b) shall, to the extent required by the Pledge Agreement,
be delivered to the Collateral Agent for pledge pursuant to the Pledge
Agreement.
9.14 LIMITATION ON CREATION OF SUBSIDIARIES. Neither Holdings
nor the Borrower shall establish, create or acquire any additional Subsidiaries
without the prior written consent of the Required Banks; PROVIDED that the
Borrower may establish or create one or more Wholly-Owned Subsidiaries of the
Borrower without such consent so long as (i) 100% of the capital stock of any
new Domestic Subsidiary (or all capital stock of any new Foreign Subsidiary
which is owned by any Credit Party, except that not more than 65% of the voting
stock of any such Foreign Subsidiary shall be required to be so pledged) is upon
the creation or establishment of any such new Subsidiary pledged and delivered
to the Collateral Agent for the benefit of the Secured Creditors under the
Pledge Agreement and (ii) upon the creation or establishment of any such new
Domestic Subsidiary such Domestic Subsidiary executes the Additional Security
Documents and guaranty required to be executed by it in accordance with Section
8.12.
9.15 BUSINESS. (a) Holdings will engage in no business
activities and will have no assets or liabilities, other than its ownership of
the capital stock of DelCorp and WisCorp and
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liabilities incident thereto, including its liabilities pursuant to the Pledge
Agreement and its guarantee pursuant to Section 14.01.
(b) Neither DelCorp nor WisCorp will engage in any business
activity and will have no assets or liabilities, other than its ownership of
membership interests in the Borrower and liabilities incidental thereto,
including in the case of WisCorp its liabilities pursuant to the Security
Documents and its guarantee pursuant to Section 14.01 and, in the case of
DelCorp, its obligations under the Credit Documents, if any, executed and
delivered by it pursuant to Section 8.12(f).
(c) The Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
Business and other businesses reasonably related thereto.
9.16 DESIGNATED SENIOR INDEBTEDNESS. In no event will the
Borrower designate any indebtedness as "Designated Senior Indebtedness" for
purposes of the Senior Subordinated Note Indenture unless the Required Banks
specifically consent thereto in writing.
SECTION 10. EVENTS OF DEFAULT. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 PAYMENTS. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for three or more Business Days, in the
payment when due of any Unpaid Drawings or interest on any Loan or Note, or any
Fees or any other amounts owing hereunder or thereunder; or
10.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
10.03 COVENANTS. Holdings or the Borrower shall (i) default in
the due performance or observance by it of any term, covenant or agreement
contained in Section 8.01(g)(i), 8.08, 8.11 or Section 9 or (ii) default in the
due performance or observance by it of any other term, covenant or agreement
contained in this Agreement and such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Administrative
Agent or any of the Banks; or
10.04 DEFAULT UNDER OTHER AGREEMENTS. Holdings, the Borrower
or any of their respective Subsidiaries shall (i) default in any payment of any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement or
condition relating to any Indebtedness (other than the Obligations) or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder
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or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity or
(iii) any Indebtedness (other than the Obligations) of Holdings, the Borrower or
any of their respective Subsidiaries shall be declared to be due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof, PROVIDED that it shall not be a Default or
Event of Default under this Section 10.04 unless the aggregate principal amount
of all Indebtedness as described in preceding clauses (i) through (iii),
inclusive, is at least $2,500,000; or
10.05 BANKRUPTCY, ETC. Holdings, the Borrower or any of their
respective Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case
is commenced against Holdings, the Borrower or any of their respective
Subsidiaries and the petition is not controverted within 15 days, or is not
dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of Holdings, the Borrower or any of their
respective Subsidiaries or Holdings, the Borrower or any of their respective
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to Holdings, the Borrower or any of their respective
Subsidiaries or there is commenced against Holdings, the Borrower or any of
their respective Subsidiaries any such proceeding which remains undismissed for
a period of 60 days, or Holdings, the Borrower or any of their respective
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or Holdings, the
Borrower or any of their respective Subsidiaries suffers any appointment of any
custodian or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or Holdings, the Borrower or
any of their respective Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by Holdings, the Borrower or any
of their respective Subsidiaries for the purpose of effecting any of the
foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is reasonably likely to have a
trustee appointed to administer such Plan, any Plan which is subject to Title IV
of ERISA is, shall have been or is reasonably likely to be terminated or to be
the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made with respect to a
Plan or a Foreign Pension Plan has not been timely made, Holdings or any
Subsidiary of Holdings or any ERISA Affiliate has incurred or is reasonably
likely to incur any liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or
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4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a
group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2)
of the Code) under Section 4980B of the Code, or Holdings, or any of its
Subsidiaries has incurred or is reasonably likely to incur liabilities pursuant
to one or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) that provide benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or Plans or Foreign Pension
Plans; (b) there shall result from any such event or events the imposition of a
lien, the granting of a security interest, or a liability or a material risk of
incurring a liability; and (c) such lien, security interest or liability,
individually, and/or in the aggregate, in the opinion of the Required Banks, has
had, or could reasonably be expected to have, a Material Adverse Effect; or
10.07 SECURITY DOCUMENTS. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease in any material respect to give the Collateral Agent
for the benefit of the Secured Creditors the Liens, rights, powers and
privileges purported to be created thereby (including, without limitation, a
perfected security interest in, and Lien on, all of the Collateral), in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.01), and subject to no other Liens (except as
permitted by Section 9.01), or any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any of the Security Documents and such default
shall continue beyond any grace period (if any) specifically applicable thereto
pursuant to the terms of such Security Document; or
10.08 GUARANTY. Any Guaranty or any provision thereof shall
cease to be in full force or effect as to the relevant Guarantor (unless such
Guarantor is no longer a Subsidiary by virtue of a liquidation, sale, merger or
consolidation permitted by Section 9.02), or any Guarantor or Person acting by
or on behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under the relevant Guaranty, or any Guarantor shall default in the
due performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to its Guaranty; or
10.09 JUDGMENTS. One or more judgments or decrees shall be
entered against Holdings, the Borrower or any of their respective Subsidiaries
involving in the aggregate for Holdings, the Borrower and their respective
Subsidiaries a liability (not paid or fully covered by a reputable and solvent
insurance company) and such judgments and decrees either shall be final and
non-appealable or shall not be vacated, discharged or stayed or bonded pending
appeal for any period of 60 consecutive days, and the aggregate amount of all
such judgments to the extent not covered by insurance exceeds $2,500,000; or
10.10 CHANGE OF CONTROL. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Banks, shall by written notice to the Borrower, take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent, any Bank or the holder of any Note to enforce its claims against any
Credit Party (PROVIDED that, if an Event of Default specified in Section 10.05
shall
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occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically without the
giving of any such notice): (i) declare the Total Commitments terminated,
whereupon all Commitments of each Bank shall forthwith terminate immediately and
any Commitment Commission shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; (iii) terminate any Letter of Credit
that may be terminated in accordance with its terms; (iv) direct the Borrower to
pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash, to be held as security by the Collateral Agent, as is
equal to the aggregate Stated Amount of all Letters of Credit issued for the
account of the Borrower and then outstanding; and (v) enforce, as Collateral
Agent, all of the Liens and security interests created pursuant to the Security
Documents.
SECTION 11. DEFINITIONS AND ACCOUNTING TERMS.
11.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Acquisition" shall mean the purchase of the Business by the
Borrower from the Seller pursuant to the Acquisition Documents.
"Acquisition Agreement" shall mean the Asset Purchase
Agreement, dated as of May 5th, 1998, between the Borrower and the Seller, as in
effect on the Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Acquisition Documents" shall mean the Acquisition Agreement
and all other documents entered into or delivered in connection with the
Acquisition Agreement (including, without limitation, all Exhibits, Schedules or
Agreements executed thereof documents delivered by the Seller pursuant to
Section 7.08 of the Acquisition Agreement).
"Additional Collateral" shall mean all property (whether real
or personal) in which security interests are granted (or have been purported to
be granted) (and continue to be in effect at the time of determination) pursuant
to Section 8.12.
"Additional Mortgage" shall have the meaning provided in
Section 8.12(a).
"Additional Mortgaged Property" shall have the meaning
provided in Section 8.12(a).
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"Additional Security Documents" shall mean all mortgages,
pledge agreements, security agreements and other security documents entered into
pursuant to Section 8.12 with respect to Additional Collateral.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non- cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense,
but excluding any net non-cash charges reflected in Adjusted Consolidated
Working Capital) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period less the sum of the amount of all net
non-cash gains (exclusive of items reflected in Adjusted Consolidated Working
Capital) included in arriving at Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank, such Bank's Percentage and (y) at a time when a
Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii)
for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Revolving Loan Commitment at such time by the Adjusted
Total Revolving Loan Commitment at such time, it being understood that all
references herein to Revolving Loan Commitments and the Adjusted Total Revolving
Loan Commitment at a time when the Total Revolving Loan Commitment or Adjusted
Total Revolving Loan Commitment, as the case may be, has been terminated shall
be references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination,
PROVIDED that (A) no Bank's Adjusted Percentage shall change upon the occurrence
of a Bank Default from that in effect immediately prior to such Bank Default if
after giving effect to such Bank Default, and any repayment of Revolving Loans
and Swingline Loans at such time pursuant to Section 4.02(a) or otherwise, the
sum of (i) the aggregate outstanding principal amount of Revolving Loans of all
Non-Defaulting Banks plus (ii) the aggregate outstanding principal amount of
Swingline Loans plus (iii) the Letter of Credit Outstandings, exceed the
Adjusted Total Revolving Loan Commitment; (B) the changes to the Adjusted
Percentage that would have become effective upon the occurrence of a Bank
Default but that did not become effective as a result of the preceding clause
(A) shall become effective on the first date after the occurrence of the
relevant Bank Default on which the sum of (i) the aggregate outstanding
principal amount of the Revolving Loans of all Non-Defaulting Banks plus (ii)
the aggregate outstanding principal amount of Swingline Loans plus (iii) the
Letter of Credit Outstandings is equal to or less than the Adjusted Total
Revolving Loan Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted
Percentage is changed pursuant to the preceding clause (B) and (ii) any
repayment of such Bank's Revolving Loans, or of Unpaid Drawings with respect to
Letters of Credit or of Swingline Loans, that were made during the period
commencing after the date of the relevant Bank Default and ending on the date of
such change to its Adjusted Percentage must be returned to the Borrower as a
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Bank's Adjusted Percentage
effected pursuant to said clause (B) shall be reduced to that positive
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change, if any, as would have been made to its Adjusted Percentage if (x) such
repayments had not been made and (y) the maximum change to its Adjusted
Percentage would have resulted in the sum of the outstanding principal of
Revolving Loans made by such Bank plus such Bank's new Adjusted Percentage of
the outstanding principal amount of Swingline Loans and of Letter of Credit
Outstandings equaling such Bank's Revolving Loan Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement, and shall include any successor thereto.
"Affiliate" shall mean, with respect to any Person, any other
Person (including, for purposes of Section 9.06 only, all directors, officers
and partners of such Person) directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person; PROVIDED, HOWEVER,
that for purposes of Section 9.06, an Affiliate of Holdings shall include any
Person that directly or indirectly owns more than 5% of any class of the capital
stock of Holdings and any officer or director of Holdings or any of its
Subsidiaries. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such other Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated, extended, renewed or replaced from time to
time.
"Applicable Commitment Commission Percentage" and "Applicable
Margin" shall mean (A) prior to the first Margin Adjustment Period beginning
after the Initial Borrowing Date (i) in the case of the Applicable Commitment
Commission Percentage, 0.50%, (ii) in the case of Tranche B Term Loans
maintained as (x) Base Rate Loans, 1.75% and (y) Eurodollar Loans, 2.75% and
(ii) in the case of Revolving Loans and Tranche A Term Loans maintained as (x)
Base Rate Loans, 1.25% and (y) Eurodollar Loans, 2.25%, and (B) during each
Margin Adjustment Period beginning after the Initial Borrowing Date, the
percentage per annum set forth below opposite the respective Level indicated to
have been achieved on the applicable Start Date for such Margin Adjustment
Period (as shown on the respective officer's certificate delivered pursuant to
Section 8.01(f)) in accordance with the Leverage Ratio for the various Levels
specified in the table below:
APPLICABLE A TERM LOANS AND A TERM LOANS AND
COMMITMENT REVOLVING LOANS REVOLVING LOANS B TERM LOANS B TERM LOANS
COMMISSION MAINTAINED AS MAINTAINED AS MAINTAINED AS MAINTAINED AS
PERCENTAGE BASE RATE LOANS EURODOLLAR LOANS BASE RATE LOANS EURODOLLAR LOANS
---------- --------------- ---------------- --------------- ----------------
LEVEL LEVERAGE RATIO
1 Greater than or 0.50% 1.25% 2.25% 1.75% 2.75%
equal to 4.50
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APPLICABLE A TERM LOANS AND A TERM LOANS AND
COMMITMENT REVOLVING LOANS REVOLVING LOANS B TERM LOANS B TERM LOANS
COMMISSION MAINTAINED AS MAINTAINED AS MAINTAINED AS MAINTAINED AS
PERCENTAGE BASE RATE LOANS EURODOLLAR LOANS BASE RATE LOANS EURODOLLAR LOANS
---------- --------------- ---------------- --------------- ----------------
2 Greater than or
equal to 4.25:1 0.50% 1.00% 2.00% 1.50% 2.50%
but less than
4.50:1
3 Greater than or
equal to 3.75:l 0.375% 0.75% 1.75% 1.25% 2.25%
but less than
4.25:1
4 Greater than or
equal to 3.25:1 0.375% 0.50% 1.50% 1.00% 2.00%
but less than
3.75:1
5 Greater than or
equal to 2.75:1 0.30% 0.25% 1.25% 0.75% 1.75%
but less than
3.25:1
6 Less than 2.75:1 0.25% 0% 0.875% 0.50% 1.50%
provided, however, that Level 1 pricing shall also apply (x) from the period
from the Initial Borrowing Date to but excluding the first day of the first
Margin Adjustment Period occurring after the Initial Borrowing Date and (y) at
any time when any Event of Default is in existence.
"Asset Sale" shall mean any sale, transfer or other
disposition by Holdings and any of its Subsidiaries to any Person (including
by-way-of redemption by such Person) of any asset (including, without
limitation, any capital stock or other securities of, or equity interests in,
another Person), PROVIDED that the issuance of capital stock by a Subsidiary of
the Borrower shall be deemed to constitute an Asset Sale.
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of Exhibit L
(appropriately completed).
"Bank" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Bank" hereunder pursuant to
13.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.03(c) or (ii) a Bank having notified in writing the Borrower
and/or the Administrative Agent that it does not intend to comply with its
obligations under Section 1.01(c) or Section 2.
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
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"Base Rate" shall mean for any day, a rate of interest per
annum equal to the higher of (i) the Prime Lending Rate for such day and (ii)
the sum of the Federal Funds Rate for such day plus 1/2 of 1% per annum.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii)
each Loan designated or deemed designated as such by the Borrower at the time of
the incurrence thereof or conversion thereto.
"Beacon" shall mean The Beacon Group III--Focus Value Fund,
L.P., a limited partnership organized under the laws of the State of Delaware.
"Borrower" shall have the meaning set forth in the first
paragraph of this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan of a
single Tranche from all the Banks (other than any Bank which has not funded its
share of a Borrowing in accordance with this Agreement) having Commitments of
the respective Tranche (or from the Swingline Bank in the case of Swingline
Loans) on a given date (or resulting from a conversion or conversions on such
date) having in the case of Eurodollar Loans the same Interest Period, PROVIDED
that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered
part of the related Borrowing of Eurodollar Loans. It is understood that there
may be more than one Borrowing outstanding pursuant to a given Tranche.
"BTCo" shall mean Bankers Trust Company in its individual
capacity.
"Business" shall mean the portable products division of the
Seller.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York, New York a legal or a day on which banking institutions
are authorized or required by law or other government action to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the New York interbank Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and the amount of Capitalized Lease
Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under generally accepted accounting principles, are or
will be required to be capitalized on the books of such Person, in each case
taken at the amount thereof accounted for as indebtedness in accordance with
such principles.
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"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (PROVIDED that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than one year from the date of acquisition, (ii) time deposits and
certificates of deposit of any commercial bank having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States, any State thereof or the District of Columbia having capital,
surplus and undivided profits aggregating in excess of $200,000,000, with
maturities of not more than one year from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Corporation or at least
P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc. and in each
case maturing not more than one year after the date of acquisition by such
Person, and (v) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in clauses (i) through
(iv) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 eT SEq.
"Change of Control" shall mean (a) prior to the date of an
initial registered public offering by the Holdings of its common stock, the
Permitted Holders shall cease to own on a fully diluted basis in the aggregate
at least 51% of the economic and voting interest in the Holdings outstanding
Voting Stock free of Liens, (b) on or after the date of an initial registered
public offering by the Holdings of its common stock, (A) any other Person or
"group" (within the meaning of Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as in effect on the Initial Borrowing Date) shall own more
than 20% of the voting and/or economic interest in the Holding's capital stock,
(B) the Board of Directors of the Holdings shall cease to consist of a majority
of Continuing Directors or (C) the Permitted Holders shall cease to own on a
fully diluted basis in the aggregate at least 25% of the economic and voting
interest in the Holding's capital stock, free of Liens, (c) a "change of
control" or similar event shall occur as provided in the Senior Subordinated
Note Indenture, or (d) Holdings shall at any time cease to own directly or
indirectly 100% of the membership interests in the Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement Collateral,
all Mortgaged Properties, all cash and Cash Equivalents delivered as collateral
pursuant to Section 4.02 or 10 hereof, all Charged Assets (as defined in the
U.K. Security Agreement) and all Additional Collateral, if any.
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"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Commitment" shall mean any of the commitments of any Bank,
I.E., whether the Tranche A Term Loan Commitment, Tranche B Term Loan Commitment
or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Consolidated Cash Interest Expense" shall mean, for any
period, the total consolidated cash interest expense of Holdings and its
Consolidated Subsidiaries for such period (calculated without regard to any
limitations on the payment thereof) plus, without duplication, that portion of
Capitalized Lease Obligations of Holdings and its Consolidated Subsidiaries
representing the interest factor for such period, but excluding the amortization
of any deferred financing costs incurred in connection with this Agreement or
the issuance of the Senior Subordinated Notes; provided that in the event that
the period for which the Consolidated Interest Coverage Ratio is being
determined includes any period prior to the Initial Borrowing Date, the
Consolidated Interest Coverage Ratio shall be determined on a pro forma basis to
give effect to any Indebtedness incurred on or after the Initial Borrowing Date
(including, without limitation, the Loans and the Senior Subordinated Notes) as
if such Indebtedness has been incurred at the beginning of such period and had
remained outstanding throughout such period.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of Holdings and its Consolidated Subsidiaries.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of Holdings and its Consolidated
Subsidiaries at such time, but excluding (i) the current portion of any
Indebtedness under this Agreement and any other long-term Indebtedness which
would otherwise be included therein, (ii) accrued but unpaid interest with
respect to the Indebtedness described in clause (i), and (iii) the current
portion of Indebtedness constituting Capitalized Lease Obligations.
"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income for such period, before interest expense and provision
for taxes based on income and without giving effect to any extraordinary gains
or losses or gains or losses from sales of assets other than inventory sold in
the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT, adjusted by adding thereto the amount of all amortization of intangibles
and depreciation, in each case that were deducted in arriving at Consolidated
EBIT for such period.
"Consolidated Indebtedness" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(but including in any event the then outstanding principal amount of all Loans,
all Senior Subordinated Notes, all Capitalized Lease Obligations and all Letter
of Credit Outstandings) of Holdings and its Subsidiaries on a consolidated basis
as determined in accordance with GAAP; PROVIDED that Indebtedness
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outstanding pursuant to trade payables incurred in the ordinary course of
business shall be excluded in determining Consolidated Indebtedness.
"Consolidated Interest Coverage Ratio" shall mean, for any
period, the ratio of (i) Consolidated EBITDA for such period to (ii)
Consolidated Cash Interest Expense for such period; provided that in the event
that the period for which the Consolidated Interest Coverage Ratio is being
determined includes any period prior to the Initial Borrowing Date, the
Consolidated Interest Coverage Ratio shall be determined on a PRO FORMA basis to
give effect to any Indebtedness incurred on or after the Initial Borrowing Date
(including, without limitation, the Loans and the Senior Subordinated Notes) as
if such Indebtedness had been incurred at the beginning of such period and had
remained outstanding throughout such period.
"Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of Holdings and its Consolidated Subsidiaries
determined in accordance with GAAP; provided that in the event that the period
for which Consolidated Net Income is being determined includes any period prior
to the Initial Borrowing Date, the Consolidated Net Income shall be determined
on the basis of the consolidated net after tax income of the Business prior to
the Initial Borrowing Date.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
PROVIDED, HOWEVER, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business and any products warranties extended in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if the less, the
maximum amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent Obligation)
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
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"Continuing Directors" shall mean the (i) directors of
Holdings on the Initial Borrowing Date and (ii) each other director, if such
director's nomination for election to the Board of Directors of Holdings is
recommended by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Security Document and the Subsidiaries Guaranty and, after the
execution and delivery thereof, each additional guaranty or security document
executed pursuant to Section 8.12.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean each Parent Guarantor, the Borrower,
each Subsidiary Guarantor and any other Subsidiary which at any time executes
and delivers any Credit Document as required by this Agreement.
"Debt Agreements" shall have the meaning provided in Section
5.05. "Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"DelCorp" shall mean GPPD, Inc., a Delaware corporation and a
wholly owned Subsidiary of Holdings.
"Disqualified Stock" shall mean any capital stock which, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, (i) matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the first anniversary of the Tranche B Term Loan Maturity
Date, or (ii) is convertible into or exchangeable (unless at the sole option of
the issuer thereof) for (a) debt securities or (b) any capital stock referred to
in (i) above, in each case at any time prior to the first anniversary of the
Tranche B Term Loan Maturity Date
"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or members or authorized or made any other distribution, payment or
delivery of property (other than common stock of such Person) or cash to its
stockholders or members as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock or membership interests outstanding on or after the Effective
Date (or any options or warrants issued by such Person with respect to its
capital stock), or set aside any funds for any of the foregoing purposes, or
shall have permitted any of its Subsidiaries to purchase or otherwise acquire
for a consideration any shares of any class of the capital stock of such Person
outstanding on or after the Effective Date (or any options or warrants issued by
such Person with respect to its
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capital stock). Without limiting the foregoing, "Dividends" with respect to any
Person shall also include all payments made or required to be made by such
Person with respect to any stock appreciation rights, plans, equity incentive or
achievement plans or any similar plans or setting aside of any funds for the
foregoing purposes.
"Documents" shall mean the Credit Documents, the Other
Financing Documents and the Acquisition Documents.
"Dollars" and the sign "$" shall each mean lawful money of the
United States.
"Domestic Subsidiary" shall mean each Subsidiary of the
Borrower that is incorporated or organized in the United States of America, any
State thereof, the United States Virgin Islands or Puerto Rico.
"Domestic Wholly-Owned Subsidiary" shall mean each Domestic
Subsidiary which is a Wholly-Owned Subsidiary of the Borrower.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Effective Date" shall have the meaning provided in Section
13.10.
"Eligible Transferee" shall mean and include a commercial
bank, insurance company, financial institution, fund or other Person which
regularly purchases interests in loans or extensions of credit of the types made
pursuant to this Agreement, any other Person which would constitute a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act as
in effect on the Effective Date or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"Employee Benefit Plans" shall have the meaning provided in
Section 5.05.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy and rule of common
law now or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on Holdings, the
Borrower or any of their respective Subsidiaries, relating to the environment,
employee health and
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safety or Hazardous Materials, including, without limitation, CERCLA; RCRA; the
Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 eT SEq.; the Toxic
Substances Control Act, 15 U.S.C. ss. 2601 ET seq.; the Clean Air Act, 42 U.S.C.
ss. 7401 eT SEq.; the Safe Drinking Water Act, 42 U.S.C. ss. 3803 ET seq.; the
Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 eT SEq.; the Emergency Planning
and the Community Right-to-Know Act of 1986, 42 U.S.C. ss. 11001 eT SEq., the
Hazardous Material Transportation Act, 49 U.S.C. ss. 1801 ET seq. and the
Occupational Safety and Health Act, 29 U.S.C. ss. 651 eT SEq. (to the extent it
regulates occupational exposure to Hazardous Materials); and any state and local
or foreign counterparts or equivalents, in each case as amended from time to
time.
"Equity Contribution" shall mean the common equity
contributions made in Holdings on or prior to the Initial Borrowing Date by
Beacon, management of the Borrower and certain other investors.
"Equity Financing Documents" shall mean the subscription
agreements between Holdings and each of the Persons making an Equity
Contribution.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with Holdings or a Subsidiary of Holdings
would be deemed to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean each Loan (excluding Swingline
Loans) designated as such by the Borrower at the time of the incurrence thereof
or conversion thereto.
"Eurodollar Rate" shall mean the rate determined by the
Administrative Agent to be the rate at which deposits in U.S. dollars are
offered by BTCo to first-class banks in the New York interbank market at
approximately 11 a.m. (New York time) two Business Days prior to the first day
of the Interest Period applicable to such Eurodollar Loan, in the approximate
amount of BTCo's relevant Eurodollar Loan and having a maturity approximately
equal to the Interest Period applicable to such Eurodollar Loan.
"Event of Default" shall have the meaning provided in Section
10.
"Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) Adjusted Consolidated Net Income for such period, and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Capital Expenditures made by the Borrower and its Subsidiaries on a consolidated
basis during such period pursuant to and in accordance with Section 9.07(a) (but
without giving effect to Capital Expenditures made pursuant to Section 9.07(b)),
in each case except to the extent financed with the proceeds of Indebtedness or
pursuant to Capitalized Lease Obligations or to the extent constituting a
reinvestment of Net Sale Proceeds of Asset Sales under
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the proviso to Section 4.02(f), (ii) the aggregate amount of permanent principal
payments of Indebtedness for borrowed money of the Borrower and its Subsidiaries
and the permanent repayment of the principal component of Capitalized Lease
Obligations of the Borrower and its Subsidiaries (excluding (1) payments with
proceeds of Asset Sales, (2) payments with the proceeds of other Indebtedness or
equity and (3) payments of Loans or other Obligations, PROVIDED that repayments
of Loans shall be deducted in determining Excess Cash Flow if such repayments
were (x) required as a result of a Scheduled Repayment under Section 4.02(b) or
(c) (but not as a reduction to the amount of Scheduled Repayments pursuant to
another provision of this Agreement) or (y) made as a voluntary prepayment
pursuant to Section 4.01 with internally generated funds (but in the case of a
voluntary prepayment of Revolving Loans or Swingline Loans, only to the extent
accompanied by a voluntary reduction to the Total Revolving Loan Commitment))
during such period; and (iii) the increase, if any, in Adjusted Consolidated
Working Capital from the first day to the last day of such period.
"Excess Cash Payment Date" shall mean the date occurring 120
days after the last day of each fiscal year of Holdings (beginning with its
fiscal year ending on December 31, 1998).
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of Holdings (or, in the case of the first Excess Cash Payment Date,
the period beginning on the Initial Borrowing Date and to and including December
31, 1998).
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Indebtedness" shall have the meaning provided in
Section 7.22.
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"Federal Funds Rate" shall mean, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11 a.m. (New York
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Foreign Loan Amount" shall mean (i) at any time prior to the
delivery of the first certificate by the Borrower to the Administrative Agent
specifying the maximum amount of Indebtedness which may be incurred by Foreign
Subsidiaries pursuant to Section 9.04(xi), zero and (ii) at any time after the
delivery of a certificate by the Borrower to the Administrative Agent specifying
the maximum amount of Indebtedness which may be incurred by Foreign Subsidiaries
pursuant to Section 9.04(xi), the amount specified in the last such certificate
delivered by the Borrower to the Administrative Agent as being the maximum
amount of Indebtedness which may
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be incurred by Foreign Subsidiaries pursuant to said Section 9.04(xi), provided
that in no event shall the Foreign Loan Amount exceed the lesser of (x)
$10,000,000, and (y) the amount which when added to the aggregate principal
amount of Revolving Loans then outstanding, the amount of all Letter of Credit
Outstandings at such time, the aggregate principal amount of all Swingline Loans
then outstanding and the aggregate principal amount of all Indebtedness
outstanding pursuant to Section 9.04 (xii) at such time, would exceed the Total
Revolving Loan Commitment at such time.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by Holdings or
any one or more of its Subsidiaries primarily for the benefit of employees of
Holdings or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA or
the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the
Borrower that is incorporated or organized under the laws of any jurisdiction
other than the United States of America, any State thereof, the United States
Virgin Islands or Puerto Rico.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Guaranteed Creditors" shall mean and include each of the
Administrative Agent, the Collateral Agent, the Banks and each party (other than
any Credit Party) party to an Interest Rate Protection Agreement or Other
Hedging Agreement to the extent such party constitutes a Secured Creditor under
the Security Documents.
"Guaranteed Obligations" shall mean all obligations of the
Borrower (i) to each Bank for the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of the principal and interest
on each Note issued by the Borrower to such Bank, and Loans made, under the
Credit Agreement and all reimbursement obligations and Unpaid Drawings with
respect to Letters of Credit, together with all the other obligations and
liabilities (including, without limitation, indemnities, fees and interest
thereon) of the Borrower to such Bank now existing or hereafter incurred under,
arising out of or in connection with the Credit Agreement or any other Credit
Document and the due performance and compliance with all the terms, conditions
and agreements contained in the Credit Documents by the Borrower and (ii) to
each Bank and each Affiliate of a Bank which enters into an Interest Rate
Protection or Other Hedging Agreement with the Borrower, the full and prompt
payment when due (whether by acceleration or otherwise) of all obligations of
the Borrower owing under any such Interest Rate Protection or Other Hedging
Agreement, whether now in existence or hereafter arising, and the due
performance and compliance with all terms, conditions and agreements contained
therein.
"Guarantor" shall mean each Parent Guarantor and each
Subsidiary Guarantor.
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"Guaranty" shall mean the guaranty issued by the Parent
Guarantors pursuant to Section 14 hereof, the Subsidiaries Guaranty and any
other guarantee executed and delivered by a Subsidiary of the Borrower pursuant
to Section 8.12.
"Hazardous Materials" shall mean (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is or could
become friable, ureaformaldehyde foam insulation, transformers or other
equipment that contain dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas; (b) any chemicals, materials or substances defined as
or included in the definition of "hazardous substances," "hazardous waste,"
"hazardous materials," "extremely hazardous substances," "restricted hazardous
waste," "toxic substances," "toxic pollutants," "contaminants," or "pollutants,"
or words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority under Environmental Laws.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (to the extent of the value of the
respective property), (iv) the aggregate amount required to be capitalized under
leases under which such Person is the lessee, (v) all obligations of such person
to pay a specified purchase price for goods or services, whether or not
delivered or accepted, I.E., take-or-pay and similar obligations, (vi) all
Contingent Obligations of such Person and (vii) all obligations under any
Interest Rate Protection Agreement or Other Hedging Agreement or under any
similar type of agreement.
"Initial Borrowing Date" shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of Term Loans hereunder
occurs.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement, interest rate floor agreement or other similar
agreement or arrangement.
"Investments" shall have the meaning provided in Section 9.05.
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"Issuing Bank" shall mean the Administrative Agent and any
Bank which at the request of the Borrower and with the consent of the
Administrative Agent (which shall not be unreasonably withheld) agrees, in such
Bank's sole discretion, to become an Issuing Bank for the purpose of issuing
Letters of Credit pursuant to Section 2.
"L/C Supportable Indebtedness" shall mean (i) obligations of
the Borrower or its Subsidiaries incurred in the ordinary course of business
with respect to insurance obligations and workers' compensation, surety bonds
and other similar statutory obligations and (ii) such other obligations of the
Borrower or any of its Subsidiaries as are permitted to exist pursuant to the
terms of this Agreement.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, at any date of determination, the
ratio of Consolidated Indebtedness on such date to Consolidated EBITDA for the
Test Period last ended.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche B
Term Loan, each Revolving Loan and each Swingline Loan.
"Majority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement if all outstanding Obligations of the other Tranches
under this Agreement were repaid in full and all Commitments with respect
thereto were terminated.
"Management Agreements" shall have the meaning provided in
Section 5.05.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(e).
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"Margin Adjustment Period" shall mean each period which shall
commence on a date occurring after the Initial Borrowing Date on which the
financial statements are delivered pursuant to Section 8.01(b) or (c) for a
fiscal quarter or year, as the case may be, which ends at least three months
after the Initial Borrowing Date and which Margin Adjustment Period shall end on
the earlier of (i) the date of actual delivery of the next financial statements
pursuant to Section 8.01(b) or (c) and (ii) the latest date on which the next
financial statements are required to be delivered pursuant to Section 8.01(b) or
(c).
"Margin Adjustment Test Period" shall mean, with respect to
each Margin Adjustment Period, the Test Period ended on the last day of the
fiscal quarter or year, as the case may be, for which financial statements were
last delivered or required to be delivered pursuant to Section 8.01(b) or (c).
"Margin Stock" shall have the meaning provided in Regulation
U.
"Material Adverse Effect" shall mean a material adverse effect
on the business, operations, property, assets, liabilities, condition (financial
or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole or
the Borrower.
"Maturity Date" shall mean, with respect to any Tranche of
Loans, the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity
Date, the Revolving Loan Maturity Date or the Swingline Expiry Date, as the case
may be.
"Maximum Swingline Amount" shall mean $2,000,000.
"Mortgage" shall have the meaning provided in Section 5.12
and, after the execution and delivery thereof, shall include each Additional
Mortgage.
"Mortgage Policies" shall have the meaning provided in Section
5.12.
"Mortgaged Property" shall have the meaning provided in
Section 5.12 and, after the execution and delivery of any Additional Mortgage,
shall include the respective Additional Mortgaged Property.
"Net Sale Proceeds" shall mean for any sale of assets, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from any sale of assets, net of (i) reasonable transaction
costs (including, without limitation, any underwriting, brokerage or other
customary selling commissions and reasonable legal, advisory and other fees and
expenses, including title and recording expenses, associated therewith), (ii)
payments of unassumed liabilities relating to the assets sold at the time of, or
within 90 days after, the date of such sale, (iii) the amount of such gross cash
proceeds required to be used to repay any Indebtedness (other than Indebtedness
of the Banks pursuant to this Agreement) which is secured by the respective
assets which were sold, and (iv) the estimated marginal increase in income taxes
which will be payable by Holdings' consolidated group with respect to the fiscal
year in which the sale occurs as a result of such sale.
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"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Note" shall mean each Tranche A Term Note, each Tranche B
Term Note, each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxx Xxxx or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent or any Bank pursuant to the terms of
this Agreement or any other Credit Document.
"Offering Circular" shall mean the Offering Circular dated
July 2, 1998, and prepared in connection with the Senior Subordinated Notes.
"Other Financing Documents" shall mean the Equity Financing
Documents and the Senior Subordinated Note Documents.
"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency or commodity values.
"Parent Guarantor" shall have the meaning provided in the
first paragraph of this Agreement.
"Participant" shall have the meaning provided in Section
2.03(a).
"Payment Office" shall mean the office of the Administrative
Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, PROVIDED that if the Percentage of any
Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
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"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto, PROVIDED
that in the case of any Additional Mortgaged Property, all such exceptions shall
also be acceptable to the Administrative Agent in its reasonable discretion.
"Permitted Holders" shall mean Beacon and its Affiliates.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) Holdings or a Subsidiary of Holdings or an ERISA
Affiliate, and each such plan for the five year period immediately following the
latest date on which Holdings, or a Subsidiary of Holdings or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section
5.10.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in each of the Pledge Agreements.
"Pledged Securities" shall mean "Pledged Securities" as
defined in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Projections" shall mean the projections set forth on Schedule
X hereto.
"Qualified Capital Stock" of any Person shall mean any capital
stock of such Person which is not Disqualified Stock.
"Qualified Public Offering" shall mean an underwritten public
offering of common stock of, and by, Holdings pursuant to a registration
statement filed with the Securities and Exchange Commission in accordance with
the Securities Act, which public equity offering results in gross proceeds to
Holdings of not less than $50,000,000; PROVIDED, HOWEVER, that Holdings
contributes to the common equity of the Company the net cash proceeds from such
underwritten public offering.
"Quarterly Payment Date" shall mean the last Business Day of
January, May, August and November occurring after the Initial Borrowing Date.
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"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 X.X.X.xx. 6901 Et SEQ.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Holdings or any
of its Subsidiaries of any cash insurance proceeds or condemnation award payable
(i) by reason of theft, loss, physical destruction or damage, condemnation
action or conveyance in lieu thereof or any other similar event with respect to
any property or assets of the Borrower or any of its Subsidiaries, (ii) under
any policy of insurance required to be maintained under Section 8.03 or (iii) by
any condemning authority (or any authority receiving a conveyance in lieu of
condemning the subject property).
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing or migration into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks, the sum of
whose outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term
Loan Commitments) and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans
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and Adjusted Percentage of Swingline Loans and Letter of Credit Outstandings)
represent an amount greater than 50% of the sum of all outstanding Term Loans
(or, if prior to the Initial Borrowing Date, Term Loan Commitments) of
Non-Defaulting Banks and the Adjusted Total Revolving Loan Commitment (or after
the termination thereof, the sum of the then total outstanding Revolving Loans
of Non-Defaulting Banks and the aggregate Adjusted Percentages of all
Non-Defaulting Banks of the total outstanding Swingline Loans and Letter of
Credit Outstandings at such time).
"Revolving Loan" shall have the meaning provided in Section
1.01(c).
"Revolving Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted
from time to time as a result of assignments to or from such Bank pursuant to
Section 1.13 or 13.04(b).
"Revolving Loan Maturity Date" shall mean December 31, 2003.
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"Scheduled Repayments" shall mean Tranche A Scheduled
Repayments and Tranche B Scheduled Repayments.
"SEC" shall have the meaning provided in Section 8.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
"Secured Creditors" shall have the meaning assigned that term
in the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Security Agreement" shall have the meaning provided in
Section 5.11.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Document" shall mean the Pledge Agreement, the
Security Agreement, the U.K. Security Agreement, each Mortgage and, after the
execution and delivery thereof, each Additional Mortgage and each Additional
Security Document.
"Seller" shall mean Generac Corporation, a Wisconsin
corporation.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Notes, the Senior Subordinated Note Indenture and all other
documents executed and delivered with respect to the Senior Subordinated Notes
or Senior Subordinated Note Indenture.
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"Senior Subordinated Note Indenture" shall mean the indenture
dated as of July 1, 1998, among the Borrower, WisCorp and the Senior
Subordinated Note Indenture Trustee, as in effect on the Initial Borrowing Date
and as thereafter amended from time to time in accordance with the requirements
thereof and of this Agreement.
"Senior Subordinated Note Indenture Trustee" shall mean Marine
Midland Bank or any successor trustee under the Senior Subordinated Note
Indenture.
"Senior Subordinated Notes" shall mean the Borrower's 11 1/4%
Senior Subordinated Notes due 2006 issued pursuant to the Senior Subordinated
Note Indenture and any notes issued by the Borrower and WisCorp in exchange for,
and as contemplated by, the Senior Subordinated Notes with substantially
identical terms as the Senior Subordinated Notes.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.05.
"Special Majority Banks" shall mean Non-Defaulting Banks, the
sum of whose outstanding Term Loans (or, if prior to the Initial Borrowing Date,
Term Loan Commitments) and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and Adjusted Percentage of Swingline Loans
and Letter of Credit Outstandings) represent an amount greater than 66-2/3% of
the sum of all outstanding Term Loans (or, if prior to the Initial Borrowing
Date, Term Loan Commitments) of Non-Defaulting Banks and the Adjusted Total
Revolving Loan Commitment (or after the termination thereof, the sum of the then
total outstanding Revolving Loans of Non-Defaulting Banks and the aggregate
Adjusted Percentages of all Non-Defaulting Banks of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time).
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Stated Amount" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Start Date" shall mean, with respect to any Margin Adjustment
Period, the first day of such Margin Adjustment Period.
"Subsidiaries Guaranty" shall mean the Subsidiaries Guaranty
substantially in the form of Exhibit G (appropriately completed), and, after the
execution and delivery thereof, as modified, supplemented or amended from time
to time.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time. Notwithstanding the
foregoing (and except for purposes of the definition of
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Unrestricted Subsidiary contained herein) an Unrestricted Subsidiary shall be
deemed not to be a Subsidiary of the Borrower or any of its other Subsidiaries
for purposes of this Agreement.
"Subsidiary Guarantor" shall mean each Subsidiary of the
Borrower designated as a "Subsidiary Guarantor" on Schedule VIII hereto or which
executes a guarantee after the Initial Borrowing Date pursuant to Section 8.12.
"Supermajority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement if (x) all outstanding Obligations of the other
Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated and (y) the percentage "50%" contained therein
were changed to "66-2/3%".
"Swingline Bank" shall mean BTCo.
"Swingline Expiry Date" shall mean the date which is two
Business Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section
1.01(d).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Syndication Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Syndication Date" shall mean that date upon which the
Administrative Agent determines in its sole discretion (and notifies the
Borrower) that the primary syndication (and resultant addition of institutions
as Banks pursuant to Section 13.04) has been completed.
"Tax Sharing Agreement" shall have the meaning provided in
Section 5.05.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall mean each Tranche A Term Loan and the
Tranche B Term Loan.
"Term Loan Commitment" shall mean each Tranche A Term Loan
Commitment and each Tranche B Term Loan Commitment, with the Term Loan
Commitment of any Bank at any time to equal the sum of its Tranche A Term Loan
Commitment and Tranche B Term Loan Commitment as then in effect.
"Test Period" shall mean each period of four consecutive
fiscal quarters of the Borrower, in each case taken as one accounting period.
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Banks.
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"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean, at any time, the sum
of the Total Tranche A Term Loan Commitment and Total Tranche B Term Loan
Commitment.
"Total Tranche A Term Loan Commitment" shall mean, at any
time, the sum of the Tranche A Term Loan Commitments of each of the Banks.
"Total Tranche B Term Loan Commitment" shall mean, at any
time, the sum of the Tranche B Term Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less (y) the sum of the aggregate principal amount of Revolving
Loans and Swingline Loans then outstanding plus the then aggregate amount of
Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being four separate Tranches,
I.E., Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and Swingline
Loans.
"Tranche A Scheduled Repayment" shall have the meaning
provided in Section 4.02(b). "Tranche A Scheduled Repayment Date" shall have the
meaning provided in Section 4.02(b).
"Tranche A Term Loan" shall have the meaning provided in
Section 1.01(a).
"Tranche A Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche A Term Loan Commitment", as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04.
"Tranche A Term Loan Maturity Date" shall mean December 31,
2003.
"Tranche A Term Note" shall have the meaning provided in
Section 1.05(a).
"Tranche B Scheduled Repayment" shall have the meaning
provided in Section 4.02(c).
"Tranche B Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(c).
"Tranche B Term Loan" shall have the meaning provided in
Section 1.01(b).
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"Tranche B Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche B Term Loan Commitment", as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Tranche B Term Loan Maturity Date" shall mean June 30, 2005.
"Tranche B Term Note" shall have the meaning provided in
Section 1.05(a).
"Transaction" shall mean, collectively, (i) the Acquisition,
(ii) the incurrence of Loans and the issuance of the Senior Subordinated Notes
on the Initial Borrowing Date, (iii) the consummation of the Equity Contribution
on the Initial Borrowing Date and (iv) the payment of fees and expenses owing in
connection with the foregoing.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, I.E., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"U.K. Security Agreement" shall have the meaning provided in
Section 5.11(b).
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year, determined
in accordance with actuarial assumptions at such time consistent with Statement
of Financial Accounting Standards No. 87, exceeds the market value of the assets
allocable thereto.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided for in
Section 2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any
Bank, at any time, shall mean such Bank's Revolving Loan Commitment at such time
less the sum of (i) the aggregate outstanding principal amount of Revolving
Loans made by such Bank and (ii) such Bank's Adjusted Percentage of the Letter
of Credit Outstandings in respect of Letters of Credit issued under this
Agreement.
"Voting Stock" shall mean any class or classes of capital
stock of Holdings pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the Board of
Directors of Holdings.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership,
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association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"WisCorp" shall have the meaning provided in the first
paragraph of this Agreement.
"Year 2000 Problem" shall mean the reasonable possibility that
the computer applications and software programs used by Holdings and its
Subsidiaries in the operation of their business will be unable to effectively
process data including data fields requiring references to dates on and after
January 1, 2000, and may experience or produce invalid or incorrect results or
abnormal operation related to or as a result of the occurrence of such dates.
SECTION 12. THE AGENT.
12.01 APPOINTMENT. The Banks hereby designate Bankers Trust
Company as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" shall include Bankers Trust Company (and/or any of its
affiliates) in its capacity as Collateral Agent pursuant to the Security
Documents) to act as specified herein and in the other Credit Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates.
12.02 NATURE OF DUTIES. The Administrative Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the Security Documents. Neither the Administrative Agent nor any of its
officers, directors, agents, employees or affiliates shall be liable for any
action taken or omitted by it or them hereunder or under any other Credit
Document or in connection herewith or therewith, unless caused by such Person's
gross negligence or willful misconduct. The duties of the Administrative Agent
shall be mechanical and administrative in nature; the Administrative Agent shall
not have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Bank or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon the Administrative Agent any
obligations in respect of this Agreement or any other Credit Document except as
expressly set forth herein or therein.
12.03 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
Independently and without reliance upon the Administrative Agent, each Bank and
the holder of each Note, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of Holdings and its Subsidiaries in connection with the
making and the continuance of the Loans and the taking or not taking of any
action in connection herewith and (ii) its own appraisal of the creditworthiness
of Holdings and its Subsidiaries and,
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except as expressly provided in this Agreement, the Administrative Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Administrative Agent
shall not be responsible to any Bank or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectability, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of Holdings and its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of Holdings and its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
12.04 CERTAIN RIGHTS OF THE AGENT. If the Administrative Agent
shall request instructions from the Required Banks with respect to any act or
action (including failure to act) in connection with this Agreement or any other
Credit Document, the Administrative Agent shall be entitled to refrain from such
act or taking such action unless and until the Administrative Agent shall have
received instructions from the Required Banks; and the Administrative Agent
shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Bank or the holder of any Note shall have any right
of action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required Banks.
12.05 RELIANCE. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and thereunder,
upon advice of counsel selected by the Administrative Agent.
12.06 INDEMNIFICATION. To the extent the Administrative Agent
is not reimbursed and indemnified by the Borrower the Banks will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Banks (without regard to the
existence of any Defaulting Banks), for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Administrative Agent in performing its
respective duties hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other Credit Document;
PROVIDED that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
12.07 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to its obligation to make Loans under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for a
"Bank" and may exercise the same rights and powers as though
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it were not performing the duties specified herein; and the term "Banks,"
"Required Banks," "holders of Notes" or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other business
with any Credit Party or any Affiliate of any Credit Party as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Borrower or any other Credit Party for services in
connection with this Agreement and otherwise without having to account for the
same to the Banks.
12.08 HOLDERS. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 RESIGNATION BY THE ADMINISTRATIVE AGENT. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Borrower and the Banks. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Administrative
Agent, the Banks shall appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial bank or trust company reasonably acceptable
to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower (which shall not be unreasonably withheld or delayed),
shall then appoint a commercial bank or trust company with capital and surplus
of not less than $500,000,000 as successor Administrative Agent who shall serve
as Administrative Agent hereunder or thereunder until such time, if any, as the
Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 25th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Banks shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Required Banks
appoint a successor Administrative Agent as provided above.
SECTION 13. MISCELLANEOUS.
13.01 PAYMENT OF EXPENSES, ETC. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and
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disbursements of White & Case LLP and local counsel) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the
Administrative Agent in connection with its syndication efforts with respect to
this Agreement and of the Administrative Agent and each of the Banks in
connection with the enforcement of this Agreement and the other Credit Documents
and the documents and instruments referred to herein and therein (including,
without limitation, the reasonable fees and disbursements of counsel (including
in-house counsel) for the Administrative Agent and for each of the Banks); (ii)
pay and hold each of the Banks harmless from and against any and all present and
future stamp, excise and other similar taxes with respect to the foregoing
matters and save each of the Banks harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Bank) to pay such taxes; and (iii) indemnify
the Administrative Agent and each Bank, and each of their respective officers,
directors, trustees, employees, representatives and agents from and hold each of
them harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
the Administrative Agent or any Bank is a party thereto) related to the entering
into and/or performance of this Agreement or any other Credit Document or the
use of any Letter of Credit or the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein (including, without
limitation, the Transaction), or in any other Credit Document or the exercise of
any of their rights or remedies provided herein or in the other Credit
Documents, or (b) the actual or alleged presence of Hazardous Materials in the
air, surface water or groundwater or on the surface or subsurface of any Real
Property owned or at any time operated by Holdings or any of its Subsidiaries,
the generation, storage, transportation, handling or disposal of Hazardous
Materials at any location, whether or not owned or operated by Holdings or any
of its Subsidiaries, the non-compliance of any Real Property with foreign,
federal, state and local laws, regulations, and ordinances (including applicable
permits thereunder) applicable to any Real Property, or any Environmental Claim
asserted against Holdings, any of its Subsidiaries or any Real Property owned or
at any time operated by Holdings or any of its Subsidiaries, including, in each
case, without limitation, the reasonable fees and disbursements of counsel and
other consultants incurred in connection with any such investigation, litigation
or other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified). To the extent that the undertaking
to indemnify, pay or hold harmless the Administrative Agent or any Bank set
forth in the preceding sentence may be unenforceable because it is violative of
any law or public policy, the Borrower shall make the maximum contribution to
the payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
13.02 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each
Bank is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to any Guarantor or the Borrower or
to
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any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of the Borrower or any Guarantor but in any event
excluding assets held in trust for any such Person against and on account of the
Obligations and liabilities of the Borrower or such Guarantor, as applicable, to
such Bank under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations purchased by such
Bank pursuant to Section 13.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Bank shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
13.03 NOTICES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telexed, telegraphic, telex, telecopier or cable communication) and
mailed, telexed, telecopied, cabled or delivered: if to a Parent Guarantor, at
such Parent Guarantor's address specified opposite its signature below; if to
the Borrower, at the Borrower's address specified opposite its signature below;
if to any Bank, at its address specified opposite its name on Schedule II below;
and if to the Administrative Agent, at its Notice Office; or, as to any Credit
Party, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Bank, at such other address
as shall be designated by such Bank in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telexed, telecopied or sent by overnight courier, be effective when deposited in
the mails or delivered to the overnight courier, prepaid and properly addressed
for delivery on such or the next Business Day, or sent by telex or telecopier,
except that notices and communications to the Administrative Agent shall not be
effective until received by the Administrative Agent.
13.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; PROVIDED, HOWEVER, that (i) no
Credit Party may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document without the prior written consent
of the Banks, (ii) although any Bank may transfer, assign or grant
participations in its rights hereunder, such Bank shall remain a "Bank" for all
purposes hereunder (and may not transfer or assign all or any portion of its
Commitments hereunder except as provided in Section 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder and (iii) no Bank shall transfer or grant any participation
under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (x) extend the final scheduled maturity of any Loan,
Note or Letter of Credit (unless such Letter of Credit is not extended beyond
the Revolving Loan Maturity Date) in which such participant is participating, or
reduce the rate or extend the time of payment of interest or Fees thereon
(except (m) in connection with a waiver of applicability of any post-default
increase in interest rates and (n) that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in the
rate of interest for purposes of this clause (x)) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the
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Total Commitments shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (y) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement or (z)
release all or substantially all of the Collateral under all of the Security
Documents (except as expressly provided in the Credit Documents) securing the
Loans hereunder in which such participant is participating. In the case of any
such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if such
Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or
its outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term
Loan Commitment) to its (i) parent company and/or any affiliate of such Bank
which is at least 50% owned by such Bank or its parent company or (ii) in the
case of any Bank that is a fund that invests in bank loans, any other fund that
invests in bank loans and is managed or advised by the same investment advisor
of such Bank or by an Affiliate of such investment advisor or (iii) to one or
more Banks or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of such
Revolving Loan Commitments and outstanding principal amount of Term Loans (or,
if prior to the Initial Borrowing Date, Term Loan Commitment) hereunder to one
or more Eligible Transferees (treating any fund that invests in bank loans and
any other fund that invests in bank loans and is managed or advised by the same
investment advisor of such fund or by an Affiliate of such investment advisor as
a single Eligible Transferee), each of which assignees shall become a party to
this Agreement as a Bank by execution of an Assignment and Assumption Agreement,
PROVIDED that, (i) at such time Schedule I shall be deemed modified to reflect
the Commitments (and/or outstanding Term Loans, as the case may be) of such new
Bank and of the existing Banks, (ii) new Notes will be issued, at the Borrower's
expense, to such new Bank and to the assigning Bank upon the request of such new
Bank or assigning Bank, such new Notes to be in conformity with the requirements
of Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments (and/or outstanding Term Loans, as the case may be),
(iii) the consent of the Administrative Agent and each Issuing Bank shall be
required in connection with any assignment of all or any portion of Revolving
Loan Commitments (which consents shall not be unreasonably withheld or delayed),
(iv) in the case of assignments pursuant to clause (y) above, the consent of the
Administrative Agent (and, unless any Event of Default is then in existence, and
after the Syndication Date the consent of the Borrower) shall be required (which
consents shall not be unreasonably withheld or delayed) and (v) the
Administrative Agent shall receive at the time of each such assignment, from the
assigning or assignee Bank, the payment of a non-refundable assignment fee of
$5,000. To the extent of any assignment pursuant to this Section 13.04(b), the
assigning Bank shall be relieved of its obligations hereunder with respect to
its assigned Commitments (it being understood that the indemnification
provisions under this Agreement (including, without limitation, Sections 1.10,
1.11, 2.05, 4.04, 13.01 and 13.06) shall survive as to such assigning Bank). At
the time of each assignment pursuant to this Section
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13.04(b) to a Person which is not already a Bank hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Bank shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Bank's Commitments and related outstanding Obligations pursuant to
Section 1.13 or this Section 13.04(b) would, at the time of such assignment,
result in increased costs under Section 1.10, 1.11 or 4.04 from those being
charged by the respective assigning Bank prior to such assignment, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank and, with
the consent of the Administrative Agent, any Lender which is a fund may pledge
all or any portion of its Notes or Loans to a trustee for the benefit of
investors and in support of its obligation to such investors.
13.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Administrative Agent or any Bank or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit Party
and the Administrative Agent or any Bank or the holder of any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights, powers and remedies herein or in
any other Credit Document expressly provided are cumulative and not exclusive of
any rights, powers or remedies which the Administrative Agent or any Bank or the
holder of any Note would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent or any Bank or the holder of any Note to any other
or further action in any circumstances without notice or demand.
13.06 PAYMENTS PRO RATA. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its PRO RATA share of any such payment)
PRO RATA based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than
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the total of such Obligation then owed and due to such Bank bears to the total
of such Obligation then owed and due to all of the Banks immediately prior to
such receipt, then such Bank receiving such excess payment shall purchase for
cash without recourse or warranty from the other Banks an interest in the
Obligations of the respective Credit Party to such Banks in such amount as shall
result in a proportional participation by all the Banks in such amount; PROVIDED
that if all or any portion of such excess amount is thereafter recovered from
such Bank, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 13.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Banks); PROVIDED that, except as otherwise specifically provided herein, all
computations of Excess Cash Flow and all computations determining compliance
with Sections 9.08 through 9.11, inclusive, shall utilize accounting principles
and policies in conformity with those used to prepare the historical financial
statements delivered to the Banks for the first fiscal year of Holdings ended
after the Initial Borrowing Date pursuant to Section 8.01(c) (which annual
financial statements shall be generally consistent with the historical financial
statements delivered to the Banks pursuant to Section 7.05(a) (with the
foregoing generally accepted accounting principles, subject to the preceding
proviso, herein called "GAAP").
(b) All computations of interest on Eurodollar Loans,
Commitment Commission and Fees hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, Commitment
Commission or Fees are payable. All computations of interest on Base Rate Loans
shall be made on the basis of a year of 365 or 366 days, as the case may be, for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF EACH PARENT GUARANTOR AND THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS
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PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH OF EACH PARENT GUARANTOR AND THE BORROWER HEREBY IRREVOCABLY
DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE
DATE HEREOF AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX, 00000 AS ITS DESIGNEE,
APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF
FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO
ACT AS SUCH, EACH CREDIT PARTY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND
AGENT IN THE STATE OF NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS
PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. EACH OF
EACH PARENT GUARANTOR AND THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ANY CREDIT PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS
AGREEMENT, ANY BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION.
(B) EACH OF EACH PARENT GUARANTOR AND THE BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the
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same instrument. A set of counterparts executed by all the parties hereto shall
be lodged with the Borrower and the Administrative Agent.
13.10 EFFECTIVENESS. This Agreement shall become effective on
the date (the "Effective Date") on which each Parent Guarantor, the Borrower and
each of the Banks who are initially parties hereto shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent or, in the case of the Banks,
shall have given to the Administrative Agent telephonic (confirmed in writing),
written or telex notice (actually received) at such office that the same has
been signed and mailed to it. The Administrative Agent will give the Borrower
and each Bank prompt written notice of the occurrence of the Effective Date.
13.11 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
13.12 AMENDMENT OR WAIVER; ETC. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks, PROVIDED that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank) (with Obligations being directly affected in the case of following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note or extend the
stated maturity of any Letter of Credit beyond the Revolving Loan Maturity Date,
or reduce the rate or extend the time of payment of interest or Fees thereon
(except (x) in connection with the waiver of applicability of any post-default
increase in interest rates and (y) that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in the
rate of interest for purposes of this clause (i)), or reduce the principal
amount thereof (except to the extent repaid in cash), (ii) release all or
substantially all of the Collateral (except as expressly provided in the Credit
Documents) under all the Security Documents, (iii) amend, modify or waive any
provision of this Section 13.12, (iv) reduce the percentage specified in the
definition of Required Banks (it being understood that, with the consent of the
Required Banks, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Required Banks on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are
included on the Effective Date) or (v) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement; PROVIDED
further, that no such change, waiver, discharge or termination shall (t) without
the consent of the Special Majority Banks, release any Parent Guarantor from its
obligations under the Parent Guaranty, (u) increase the Commitments of any Bank
over the amount thereof then in effect without the consent of such Bank (it
being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Commitments shall not constitute an increase of the Commitment of any
Bank, and that an increase in the available portion of any Commitment of any
Bank shall not constitute an increase in the Commitment of such Bank), (v)
without the consent of BTCo or, in the case of Letters of Credit, the respective
Issuing Bank, amend, modify
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or waive any provision of Section 2 or alter its rights or obligations with
respect to Letters of Credit or Swingline Loans, (w) without the consent of the
Administrative Agent, amend, modify or waive any provision of Section 12 as same
applies to the Administrative Agent or any other provision as same relates to
the rights or obligations of the Administrative Agent, (x) without the consent
of the Collateral Agent, amend, modify or waive any provision relating to the
rights or obligations of the Collateral Agent, (y) without the consent of the
Majority Banks of each Tranche which is being allocated a lesser prepayment,
repayment or commitment reduction as a result of the actions described below (or
without the consent of the Majority Banks of each Tranche in the case of an
amendment to the definition of Majority Banks), amend the definition of Majority
Banks (it being understood that, with the consent of the Required Banks,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Majority Banks on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date) or alter the required application of any prepayments or
repayments (or commitment reductions), as between the various Tranches, pursuant
to Section 4.01 or 4.02 (excluding Sections 4.02(b) and (c)) (although (x) the
Required Banks may waive, in whole or in part, any such prepayment, repayment or
commitment reduction, so long as the application, as amongst the various
Tranches, of any such prepayment, repayment or commitment reduction which is
still required to be made is not altered and (y) if additional Tranches of Term
Loans are extended after the Initial Borrowing Date with the consent of the
Required Banks as required above, such Tranches may be included on a pro rata
basis (as is originally done with the Tranche A Term Loans and Tranche B Term
Loans) in the various prepayments or repayments required pursuant to Sections
4.01 and 4.02 (excluding Sections 4.02(b) and (c) and any section providing
Scheduled Repayments for any new Tranche of Term Loans) or (z) without the
consent of the Supermajority Banks of the respective Tranche, reduce the amount
of, or extend the date of, any Scheduled Repayment applicable to such Tranche
or, without the consent of the Supermajority Banks of each Tranche, amend the
definition of Supermajority Banks (it being understood that, with the consent of
the Required Banks, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Supermajority Banks on substantially
the same basis as the extensions of Term Loans and Revolving Loan Commitments
are included on the Effective Date).
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks
whose individual consent is required are treated as described in either clauses
(A) or (B) below, to either (A) replace each such non-consenting Bank or Banks
(or, at the option of the Borrower if the respective Bank's consent is required
with respect to less than all Tranches of Loans (or related Commitments), to
replace only the respective Tranche or Tranches of Commitments and/or Loans of
the respective non-consenting Bank which gave rise to the need to obtain such
Bank's individual consent) with one or more Replacement Banks pursuant to
Section 1.13 so long as at the time of such replacement, each such Replacement
Bank consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Bank's Revolving Loan Commitment (if such Bank's
consent is required as a result of its Revolving Loan Commitment) and/or repay
each Tranche of outstanding Term Loans of such Bank which gave rise to the need
to obtain such Bank's consent, in accordance with Sections 3.02(b) and/or
4.01(iv), PROVIDED
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that, unless the Commitments are terminated, and Loans repaid, pursuant to
preceding clause (B) are immediately replaced in full at such time through the
addition of new Banks or the increase of the Commitments and/or outstanding
Loans of existing Banks (who in each case must specifically consent thereto),
then in the case of any action pursuant to preceding clause (B) the Required
Banks (determined before giving effect to the proposed action) shall
specifically consent thereto, PROVIDED further, that in any event the Borrower
shall not have the right to replace a Bank, terminate its Revolving Loan
Commitment or repay its Loans solely as a result of the exercise of such Bank's
rights (and the withholding of any required consent by such Bank) pursuant to
the second proviso to Section 13.12(a).
13.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06 shall,
subject to Section 13.15 (to the extent applicable), survive the execution,
delivery and termination of this Agreement and the Notes and the making and
repayment of the Loans.
13.14 DOMICILE OF LOANS. Each Bank may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Bank. Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 13.14 would, at the time of
such transfer, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04
from those being charged by the respective Bank prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 LIMITATION ON ADDITIONAL AMOUNTS, ETC. Notwithstanding
anything to the contrary contained in Sections 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Bank gives notice to the Borrower that it is obligated to
pay an amount under any such Section within one year after the later of (x) the
date the Bank incurs the respective increased costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital or (y) the date such Bank has actual knowledge of its incurrence of the
respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such Bank
shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the
extent the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital are incurred or
suffered on or after the date which occurs one year prior to such Bank giving
notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be. This
Section 13.15 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.05 and 4.04.
13.16 CONFIDENTIALITY. (a) Subject to the provisions of clause
(b) of this Section 13.16, each Bank agrees that it will use its best efforts
not to disclose without the prior consent of Holdings or the Borrower (other
than to its employees, auditors, advisors or counsel or to another Bank if the
Bank or such Bank's holding or parent company or board of trustees in its sole
discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Bank) any information with respect to
Holdings or any of its Subsidiaries which is now or in the
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future furnished pursuant to this Agreement or any other Credit Document,
PROVIDED that any Bank may disclose any such information (a) as has become
generally available to the public other than by virtue of a breach of this
Section 13.16(a) by the respective Bank, (b) as may be required or appropriate
in any report, statement or testimony submitted to any municipal, state or
Federal regulatory body having or claiming to have jurisdiction over such Bank
or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors, (c) as may be required or appropriate in respect to any summons or
subpoena or in connection with any litigation, (d) in order to comply with any
law, order, regulation or ruling applicable to such Bank, (e) to the
Administrative Agent or the Collateral Agent and (f) to any prospective or
actual transferee or participant in connection with any contemplated transfer or
participation of any of the Notes or Commitments or any interest therein by such
Bank, PROVIDED that such prospective transferee agrees to be bound by the
confidentiality provisions contained in this Section 13.16.
(b) Each of Holdings and the Borrower hereby acknowledges and
agrees that each Bank may share with any of its affiliates any information
related to Holdings or any of its Subsidiaries (including, without limitation,
any nonpublic customer information regarding the creditworthiness of Holdings
and its Subsidiaries, provided such Persons shall be subject to the provisions
of this Section 13.16 to the same extent as such Bank).
13.17 REGISTER. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 13.17, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Banks, the Loans made by
each of the Banks and each repayment in respect of the principal amount of the
Loans of each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such Bank
and the rights to the principal of, and interest on, any Loan made pursuant to
such Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Bank shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Bank and/or the
new Bank. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the Administrative
Agent in performing its duties under this Section 13.17.
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SECTION 14. Parent Guaranty.
14.01 THE PARENT GUARANTY. In order to induce the
Administrative Agent and the Banks to enter into this Agreement and to extend
credit hereunder, to induce Banks or any of their respective Affiliates to enter
into the Interest Rate Protection Agreements or other Hedging Agreements, and in
recognition of the direct benefits to be received by each Parent Guarantor from
the proceeds of the Loans, the issuance of the Letters of Credit, and the
entering into of Interest Rate Protection Agreements or Other Hedging
Agreements, each Parent Guarantor hereby, jointly and severally, agrees with the
Guaranteed Creditors as follows: such Parent Guarantor hereby unconditionally
and irrevocably guarantees as primary obligor and not merely as surety the full
and prompt payment when due, whether upon maturity, acceleration or otherwise,
of any and all of the Guaranteed Obligations of the Borrower to the Guaranteed
Creditors. If any or all of the Guaranteed Obligations of the Borrower to the
Guaranteed Creditors becomes due and payable hereunder, such Parent Guarantor
irrevocably and unconditionally promises to pay such indebtedness to the
Guaranteed Creditors, or order, on demand, together with any and all expenses
which may be incurred by the Guaranteed Creditors in collecting any of the
Guaranteed Obligations. If claim is ever made upon any Guaranteed Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including the Borrower), then and in such event
such Parent Guarantor agrees that any such judgment, decree, order, settlement
or compromise shall be binding upon such Parent Guarantor, notwithstanding any
revocation of this Parent Guaranty or other instrument evidencing any liability
of the Borrower, and such Parent Guarantor shall be and remain liable to the
aforesaid payees hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such payee.
14.02 BANKRUPTCY. Additionally, each Parent Guarantor
unconditionally and irrevocably guarantees the payment of any and all of the
Guaranteed Obligations of the Borrower to the Guaranteed Creditors whether or
not due or payable by the Borrower upon the occurrence of an Event of Default
under any of the events specified in Section 10.05, and unconditionally promises
to pay such indebtedness to the Guaranteed Creditors, or order, on demand, in
lawful money of the United States.
14.03 NATURE OF LIABILITY. The liability of each Parent
Guarantor hereunder is exclusive and independent of any security for or other
guaranty of the Guaranteed Obligations of the Borrower whether executed by such
Parent Guarantor, any other guarantor or by any other party, and the liability
of such Parent Guarantor hereunder is not affected or impaired by (a) any
direction as to application of payment by the Borrower or by any other party, or
(b) any other continuing or other guaranty, undertaking or maximum liability of
a guarantor or of any other party as to the Guaranteed Obligations of the
Borrower, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or change
in personnel by the Borrower, or (e) any payment made to any Guaranteed Creditor
on the Guaranteed Obligations which any such Guaranteed Creditor repays to the
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief
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proceeding, and each Parent Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
14.04 INDEPENDENT OBLIGATION. The obligations of each Parent
Guarantor hereunder are independent of the obligations of any other guarantor,
any other party or the Borrower, and a separate action or actions may be brought
and prosecuted against each Parent Guarantor whether or not action is brought
against any other guarantor, any other party or the Borrower and whether or not
any other guarantor, any other party or the Borrower be joined in any such
action or actions. Each Parent Guarantor waives, to the full extent permitted by
law, the benefit of any statute of limitations affecting its liability hereunder
or the enforcement thereof. Any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the Borrower shall
operate to toll the statute of limitations as to each Parent Guarantor.
14.05 AUTHORIZATION. Each Parent Guarantor authorizes the
Guaranteed Creditors without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or
alter, any of the Guaranteed Obligations (including any increase or
decrease in the rate of interest thereon), any security therefor, or
any liability incurred directly or indirectly in respect thereof, and
the Parent Guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party or others or otherwise act or refrain
from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
its creditors other than the Guaranteed Creditors;
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(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrower to the Guaranteed
Creditors regardless of what liability or liabilities of Holdings or
the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements
referred to herein, or other wise amend, modify or supplement this
Agreement or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of such Parent Guarantor from its liabilities under this
Parent Guaranty.
14.06 RELIANCE. It is not necessary for any Guaranteed
Creditor to inquire into the capacity or powers of the Borrower or the officers,
directors, partners or agents acting or purporting to act on their behalf, and
any Guaranteed Obligations made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
14.07 SUBORDINATION. Any of the indebtedness of the Borrower
now or hereafter owing to each Parent Guarantor is hereby subordinated to the
Guaranteed Obligations of the Borrower owing to the Guaranteed Creditors; and if
the Administrative Agent so requests at a time when an Event of Default exists,
all such indebtedness of the Borrower to such Parent Guarantor shall be
collected, enforced and received by such Parent Guarantor for the benefit of the
Guaranteed Creditors and be paid over to the Administrative Agent on behalf of
the Guaranteed Creditors on account of the Guaranteed Obligations of the
Borrower to the Guaranteed Creditors, but without affecting or impairing in any
manner the liability of such Parent Guarantor under the other provisions of this
Parent Guaranty. Prior to the transfer by a Parent Guarantor of any note or
negotiable instrument evidencing any of the indebtedness of the Borrower to such
Parent Guarantor, such Parent Guarantor shall xxxx such note or negotiable
instrument with a legend that the same is subject to this subordination. Without
limiting the generality of the foregoing, each Parent Guarantor hereby agrees
with the Guaranteed Creditors that it will not exercise any right of subrogation
which it may at any time otherwise have as a result of this Parent Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code or otherwise)
until all Guaranteed Obligations have been irrevocably paid in full in cash.
14.08 WAIVER. (a) Each Parent Guarantor waives any right
(except as shall be required by applicable statute and cannot be waived) to
require any Guaranteed Creditor to (i) proceed against the Borrower, any other
guarantor or any other party, (ii) proceed against or exhaust any security held
from the Borrower, any other guarantor or any other party or (iii) pursue any
other remedy in any Guaranteed Creditor's power whatsoever. Each Parent
Guarantor waives any defense based on or arising out of any defense of the
Borrower, any other guarantor or any other party, other than payment in full of
the Guaranteed Obligations, based on or arising out of the disability of the
Borrower, any other guarantor or any other party, or the validity, legality or
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower other
than payment in full of the Guaranteed Obligations. The Guaranteed Creditors
may, at their election, foreclose on any
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security held by the Administrative Agent, the Collateral Agent or any other
Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of any Parent
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid. Each Parent Guarantor waives any defense arising out of any such election
by the Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of
any Parent Guarantor against the Borrower or any other party or any security.
(b) Each Parent Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Parent Guaranty, and notices of the existence, creation or incurring of
new or additional Guaranteed Obligations. Each Parent Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks which such Parent Guarantor assumes and incurs hereunder, and agrees that
neither the Administrative Agent nor any Bank shall have any duty to advise such
Parent Guarantor of information known to them regarding such circumstances or
risks.
14.09 MAXIMUM LIABILITY. It is the desire and intent of each
Parent Guarantor and the Guaranteed Creditors that this Parent Guaranty shall be
enforced against such Parent Guarantor to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. If, however, and to the extent that, the obligations of a Parent
Guarantor under this Parent Guaranty shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of such Parent
Guarantor shall be deemed to be reduced and such Parent Guarantor shall pay the
maximum amount of the Guaranteed Obligations which would be permissible under
applicable law.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Addresses:
1 Generac Way GENERAC PORTABLE PRODUCTS, LLC
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxxx Xxxxxx, Xx. By: /s/ DOORANCE XXXXXX, JR.
-----------------------------------------
Title: President and Chief Executive
Officer
000 Xxxx Xxxxxx GENERAC PORTABLE PRODUCTS, INC.
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxx Xxxxxx, Xx. By: /s/ XXXX X. XXXXXXXXX
-----------------------------------------
Title: President
0 Xxxxxxx Xxx GPPW, INC.
Xxxxxxxxx, XX 00000
Tel: 000-000-0000
000-000-0000
Fax: 000-000-0000 By: /s/ XXXXX XXXXXXXXX
-----------------------------------------
Title: President
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /s/ XXXXXXXX XXXXX
-----------------------------------------
Title: Principal
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ XXXXXXXXX XXXXX
-----------------------------------------
Title: Managing Director
LASALLE NATIONAL BANK
By: /s/ XXXXXXX XXXXX
-----------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXX XXXXXXXX
-----------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXXX XXXX
-----------------------------------------
Title: Senior Vice President
SANWA BUSINESS CREDIT CORPORATION
By /s/ XXXXX X. XXXXXX
------------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ TETSUO KAMATSU
-----------------------------------------
Title: Joint General Manager
SCHEDULE I
COMMITMENTS
Tranche A Term Tranche B Term Revolving
Bank Loan Commitment Loan Commitment Loan Commitment Totals
---- --------------- --------------- --------------- ------
Bankers Trust Company $3,913,043 $16,695,652 $2,608,697 $23,217,391
Bank of America
National Trust and Savings Association 6,554,348 5,826,087 4,369,565 16,750,000
The First National Bank of Chicago 6,554,348 5,826,087 4,369,565 16,750,000
LaSalle National Bank 6,554,348 5,826,087 4,369,565 16,750,000
Sanwa Business Credit Corporation 6,554,348 5,826,087 4,369,565 16,750,000
The Fuji Bank, Limited 5,869,565 -- 3,913,043 9,782,609
Union Bank of California, N.A. 9,000,000 -- 6,000,000 15,000,000
--------- --------- ----------
Totals $45,000,000 $40,000,000 $30,000,000 115,000,000
=========== =========== =========== ===========
SCHEDULE II
BANK ADDRESSES
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
Bank of America 000 Xxxxxxx Xxxxxx
National Trust and Savings Association 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxxx
LaSalle National Bank 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Union Bank of California, N.A. 000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
Sanwa Business Credit Corporation 000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxx
Schedule II
Page 2
BANK ADDRESSES
The First National Bank of Chicago One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
Fuji Bank Ltd., 000 X. Xxxxxx Xxxxx
Xxxxxxx Branch Suite 2000
Xxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxx
SCHEDULE III
REAL PROPERTY
Owner Description
SCHEDULE IV
EXISTING LIENS
SCHEDULE V
EXISTING INDEBTEDNESS
SCHEDULE VI
INSURANCE
SCHEDULE VII
ERISA
SCHEDULE VIII
SUBSIDIARIES
-----------------------------
1/ Subsidiary Guarantor
LABOR RELATIONS
(i)
